Releasing enemy is a judicial scandal

Andrew McCarthy:

‘We do not want a situation where the executive is defying the courts,” a senior Obama administration official told the Washington Post. The spokesman was rationalizing the administration’s release of jihadist detainees, who are returning to the jihad and targeting Americans. Such defiance, said the official, would be “a recipe for a constitutional crisis.” Evidently, the president doesn’t appreciate that we already have a constitutional crisis.

The administration claims that it simply had to send six detainees from lockup in Guantanamo Bay to al-Qaeda Central in Yemen. A federal judge had found that there was insufficient evidence to hold one of them as an enemy combatant. Deducing that the cases against the other five were equally weak or worse, the Justice Department decided that all six should be sprung. Those were just the Yemenis. White House officials did not comment to the Post on the administration’s equally indefensible decision to send another half-dozen detainees to Afghanistan and Somaliland — which, like dumping jihadists in Yemen, is tantamount to sending them back to al-Qaeda.

These are not just bad decisions. They amount to a scandal. Let’s count the ways.

First, there is the matter of the ongoing constitutional crisis that, as al-Qaeda’s attempted Christmas Day attack amply demonstrates, is now endangering our nation. The Constitution gives the political branches plenary responsibility for the conduct of war. The conduct of war includes the detention, trial, or release of enemy combatants. The federal courts have no role except the one they have usurped. This brazen power grab flouts the bedrock constitutional separation of powers, and the political branches do not have to abide it. Indeed, as national defense is their chief responsibility, it is their duty not to abide it.

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When courts illegitimately claim authority over these matters, and the political branches let them get away with it, it means our most vital political decisions are being made by unaccountable, non-political officials. The American people cannot remove judges when they get these vital questions wrong. This undermines the separation of powers and imperils our constitutional system, which is designed to protect popular self-government — not to usher in judicial oligarchy.

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Second, even if we were to accept that judges should be reviewing the military’s determination of who is an enemy combatant, the power to review is not the power to release.

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There is much more.

The intrusion of a lawfare approach to defense decisions is a dangerous precedent that should be challenged. Obama's failure to do is is a dereliction of duty on his part and that of his administration. I suspect he has not challenged the bad decisions because he agrees with them, which raises further questions about his own leadership. These are decisions that he should be held accountable for even if the judges cannot be so held.