![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
Updates for those who don't read comments
Jun. 22nd, 2002 10:26 amEx Parte Quirin, the Supreme Court case involving Nazi saboteurs tried before a military commission and one of the cases cited by the Justice Department in its brief regarding the detention of enemy combatants, can be found here.
My own take on Ex Parte Quirin can be found here.
A few final comments:
The Justice Department is submitting that since the Court in Ex Parte Quirin limited itself to determining whether or not the commission trying to accused persons were lawfully constituted, it should be limited to that only and not second guess the military's determination of what is an enemy combatant.
(It has cited some case law in support of this proposition. I suspect many of these, on analysis, will turn out to be obiter remarks, i.e. remarks made "by the way" in a case but not actual holdings by the Court, which carry persuasive but not binding authority.)
Personally I would argue that, despite the case law that implies the contrary, in the interests of not fettering the judiciary's powers of review, this should not be the case. While the military is indeed expert in these matters and their opinion carries much weight, it should still be up to the Court to decide, finally, whether or not such a opinion is objectively correct and has some basis in fact. And this possibility is actually conceded by the Justice Department, to a certain extent, in its brief (PDF format) - see Page 34.
In short, while the executive has the right to commit enemy combatants to trial without counsel, the status of the accused as an enemy combatant is, and should still be subject to some kind of judicial review. Let's hope the Court sees it that way.
My own take on Ex Parte Quirin can be found here.
A few final comments:
The Justice Department is submitting that since the Court in Ex Parte Quirin limited itself to determining whether or not the commission trying to accused persons were lawfully constituted, it should be limited to that only and not second guess the military's determination of what is an enemy combatant.
(It has cited some case law in support of this proposition. I suspect many of these, on analysis, will turn out to be obiter remarks, i.e. remarks made "by the way" in a case but not actual holdings by the Court, which carry persuasive but not binding authority.)
Personally I would argue that, despite the case law that implies the contrary, in the interests of not fettering the judiciary's powers of review, this should not be the case. While the military is indeed expert in these matters and their opinion carries much weight, it should still be up to the Court to decide, finally, whether or not such a opinion is objectively correct and has some basis in fact. And this possibility is actually conceded by the Justice Department, to a certain extent, in its brief (PDF format) - see Page 34.
In short, while the executive has the right to commit enemy combatants to trial without counsel, the status of the accused as an enemy combatant is, and should still be subject to some kind of judicial review. Let's hope the Court sees it that way.
