Leadership By Default

I was rather struck by this Washington Post column by Robert Bork and David Rivkin arguing that the court should stop managing the War on Terror. On the one hand, their arguments are entirely plausible. The Hamdi case serves as a perfect example. The court knew that something needed to be done, but they could hardly create a detailed policy directive as to how to treat enemy combatants. So they issued some vague requirements and left the government to figure out what the court was after through trial and error. It is hardly an ideal solution.

On the other hand, for the court to take a hands-off approach as Bork and Rivkin suggest would be even more absurd. The problem here is that Congress apparently doesn't give a crap about the War on Terror, and if the executive has an actual plan, they refuse to say a word as to what they are doing or why. The courts shouldn't be in a leadership position on this, but they have no choice. Nobody else will do it.

If the Administration would explain what exactly it is they're doing, their rationale, what sort of limits they place on themselves, and how they're enforcing those limits, then the courts would have a sound basis to grant them broad discretion. However, we have none of that, and instead have Abu Ghraib, a proposal for a jurisdiction-free-zone in Cuba, documents suggesting that the Geneva Conventions are quaint and torture is ok. How could the courts not intervene?

Bork and Rivkin attempt to write off these various indiscretions as abuses that "inevitably occur in war". I don't buy it. This morning I attended a presentation by reporter Donovan Webster, who recently wrote an article for Vanity Fair called "The Man In the Hood" (the article is not online, but there's a brief summary here, and an Aljazeera article about it here). Webster visited Iraq twice last fall and conducted 60 hours of interviews with former Iraqi detainees, visited detention sites, and spoke with the military personnel there. Webster contends (fairly convincingly) that the abuses famously exposed at Abu Ghraib were widespread, and continue to this day, and that no serious changes resulted from the initial round of publicity. This is an administration in desperate need of adult supervision, and it would be a horrific abdication for the courts to back down.