Why has the Supreme Court agreed to hear arguments in this matter, effectively rejecting the matter this past April? There currently is an act of Congress that explicitly prohibits review of such cases. I don't know for sure, and I am not a lawyer, but it appears to me as a very interested political spectator that the Court believes the confusion surrounding this subject needs clarification prior to the 2008 Presidential Election. Whether this is the reason or not, I believe it will make for better debate by the Candidates because it will take one of the Emotional factors out of the calculus.
Between now and sometime following the Supreme Courts announcement of it decision this subject will receive much naval gazing contemplation, dissection and analytical thought by both sides. I am sure I will have further comments and references to the many other discussions on this subject. For now I would like to point you to a long (but worth the read) article by Benjamin Wittes titled Terrorism, the Military, and the Courts I found posted today at Real Clear Politics website.
In this article, which I can only inadequately represent, Mr. Wittes begins by presenting us with a story of one military battlefield interrogation. He then asks us to consider the methods and whether they represent a series of necessary and legal military techniques to obtain information.
'What followed was a protracted habeas corpus action in the U.S. District Court for the District of Columbia. Lawyers representing the high-value detainee decried the coercive interrogation of his wife, the threat to his children, and the savage beating he incurred on his arrest. (The medical officer accompanying the troops who detained him had shouted to the commanding officer to call his men off "unless you want to take back a corpse.") Human rights groups uniformly condemned the interrogation tactic as torture; major newspapers weighed in on their side. The Bush administration, meanwhile, insisted that the courts had no jurisdiction over any such overseas military action, which had in any event been lawful and had yielded essential intelligence and the capture of a very big fish. As of this writing, the lower courts have deemed themselves powerless to hear the case and the Supreme Court -- for now, at least -- has not intervened."The Irony is that last sentence has now changed. Both the Supreme Court Announcement and the publication of Mr. Wittes article bear the same date - June 29, 2007. The article continues by asking questions.
"Should the courts hear it, notwithstanding an act of Congress that explicitly precludes review? If so, what should they hold? Is such a tactic -- garnering information from a mother by threatening to have her sons beheaded by a totalitarian regime -- ever legitimate? And who, in a society committed both to law and to victory in a global struggle against terrorism, is to be the judge?"The article continues on to describe current attitudes, conflicting emotions and ideas of what's proper and under what circumstances. I cannot do justice to the complete article, so please read it yourself. The article continues to look at the issues involved along with some suggested remedies, some gaps and some conclusions.
Stay tuned for further developments.