PrintMarch 11, 2009
Courting Surrender
In Tuesday’s National Review online Andrew McCarthy unequivocally asserts that the Federal courts have just surrendered in the war against radical Islam with a ruling by a U.S. Court of Appeals for the D.C. Circuit three-judge panel in al Odah v. United States. How so?
What is in dispute is how much sensitive intelligence we must share with enemies bent on annihilating Americans -- enemies against whom the people’s representatives have authorized, by overwhelming margins, the use of force. That is, these “petitioners” are the militants who -- along with al-Qaeda’s hierarchy and affiliates -- use the intelligence we give them against the soldiers we have dispatched to fight the battles Congress has authorized, under the direction of a president whose first duty is the prosecution of the war.
And just how much and what kind of intelligence information must be shared?
. . . It is quite another thing, though, to suggest our enemies are entitled to a shred of information beyond the minimum necessary to demonstrate that their designation as enemy combatants is rational.


Not, alas, according to this court. The judges believe the highest national priority is not winning a war but vindicating the Boumediene injunction to conduct “meaningful” judicial review of the military’s detention decisions. Therefore, it holds, the government must surrender anything in its file that might be helpful to an individual combatant’s case.
It makes no difference that the information is not exculpatory. The judges reason that information that is not “actually inculpatory” (emphasis in original) could be helpful to the detainee...
Not, alas, according to this court. The judges believe the highest national priority is not winning a war but vindicating the Boumediene injunction to conduct “meaningful” judicial review of the military’s detention decisions. Therefore, it holds, the government must surrender anything in its file that might be helpful to an individual combatant’s case.
It makes no difference that the information is not exculpatory. The judges reason that information that is not “actually inculpatory” (emphasis in original) could be helpful to the detainee...
And that, folks, is what you end up with when the courts assume effective control of what are and should be Congressional and Executive areas of responsibility. Instead, everything is second-guessed.
Good grief! This is one idiotic way to run a country.
