Spawn of the 60’s and “what war?”

Andrew McCarthy thinks The War Is Over. The courts have taken over the battlefield and pretended it does not exist.

For more than two centuries, we proceeded under the assumption that a self-determining people makes its most significant decisions through the political process, with policymakers answerable to voters and therefore removable if they fail either to protect our security or to respect our freedom. Courts were insulated from the political process, but only because it was understood that they respected their limited role (safeguarding the individual rights of Americans) and refrained from entering the political sphere — especially the formulation of national-security policy, which involves the most important decisions a political community makes, decisions for which the courts have no institutional competence.

One of the first important cases in this process was Boumediene which placed the judicial branch over the legislative or executive in regards to foreign affairs. The al Odah case, which prompted McCarthy here, sets new standards in the rights of enemy combatants that requires the government to disclose intelligence resources it may have that is somewhat related to the case at hand. Issues of materiality of evidence no longer consider whether the country is at war or not nor the status of the defendant.

The situation is the spawn of the 60’s, the ultimate distrust of government and the implicit trust in its opponents.

While the judges fret over the biases of our informants, Americans ought to be aghast at the biases of our judges. Throughout the opinion, there is a sense that the good faith of those fighting the war and defending it in court is always in question — the judges take umbrage at any suggestion that they should simply “accept the government’s own designation.” But they do not extend that same skepticism to the defense lawyers, human-rights activists, and anti-American agitators, such as the Center for Constitutional Rights, who have volunteered their services to those captured making war on our country. These thoughtful folks, we must implicitly trust, are just trying to do their job. Whatever helps them helps the court — and what could possibly be more important than that?

This is the essence of oligarchy. Trust is conveyed to persons by their position only and not by the manner by which they achieved that position. Being elected and held accountable by those elections provides no deference over being a part of the right group. That is a fundamental problem.

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