John Yoo slams the Supreme Court
Berkeley law professor and former Bush administration official John Yoo weighs in on Boumediene v. Bush, last week’s Supreme Court ruling granting Guantánamo detainees the right to challenge their detention: In World War II, no civilian court reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate ...
Berkeley law professor and former Bush administration official John Yoo weighs in on Boumediene v. Bush, last week's Supreme Court ruling granting Guantánamo detainees the right to challenge their detention:
Berkeley law professor and former Bush administration official John Yoo weighs in on Boumediene v. Bush, last week’s Supreme Court ruling granting Guantánamo detainees the right to challenge their detention:
In World War II, no civilian court reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate prisoners of war held during the Civil War. In a trilogy of cases decided at the end of World War II, the Supreme Court agreed that the writ did not benefit enemy aliens held outside the U.S. In the months after the 9/11 attacks, we in the Justice Department relied on the Supreme Court’s word when we evaluated Guantanamo Bay as a place to hold al Qaeda terrorists. […] Incredibly, these five Justices have now defied the considered judgment of the president and Congress for a third time, all to grant captured al Qaeda terrorists the exact same rights as American citizens to a day in civilian court.
I’m no lawyer, but it seems to me that the key problem here is using the phrase "captured al Qaeda terrorists" to refer to accused al Qaeda terrorists. Shouldn’t you have to prove that someone is, in fact, a terrorist? Yoo says no:
A judge’s view on how much "proof" is needed to find that a "suspect" is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather "evidence," which will have to be safeguarded until a court hearing, take statements from "witnesses," and probably provide some kind of Miranda-style warning upon capture. No doubt lawyers will swarm to provide representation for new prisoners. […] So our fighting men and women now must add C.S.I. duties to that of capturing or killing the enemy. Nor will this be the end of it. Under Boumediene‘s claim of judicial supremacy, it is only a hop, skip and a jump from judges second-guessing whether someone is an enemy to second-guessing whether a soldier should have aimed and fired at him.
Judging from the scare quotes, Yoo seems to have little time for legal terms of art when it comes to terrorism. It’s an odd stance for a law professor to take. But there’s an easy way to solve his problem: Put arresting terrorists back in the hands of law-enforcement officials who are actually trained to handle the kinds of thorny questions Yoo outlines. Soldiers can focus on fighting wars.
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