A couple of my readers cringed at John Yoo’s editorial on the Boudemiene case. They aren’t alone. The Cato Institute, a libertarian think-tank, responded with incredulity as well.
3. Yoo: “Under Boumediene’s claim of judicial supremacy, it is only a hop, skip and a jump from judges second-guessing whether someone is an enemy to second-guessing whether a soldier should have aimed and fired at him.”
Here Yoo wants readers to imagine a judge in robes running between foxholes to review the battle plan. He desperately wants readers of the Wall Street Journal to ask: What in the world can our Supreme Court be thinking? Not to worry. Yoo is simply trying to caricature a position with which he disagrees. I would make two points here. First, I quite agree that judges have no place on the battlefield. However, we need to watch our terms and definitions here. I do reject the Bush administration’s claim that all of the world, including all of the USA is a “battlefield.”
Second, once the dust has settled after a patrol or firefight, is it not appropriate to review the actions of our soldiers? Unless one is prepared to argue that U.S. military personnel are simply incapable of using their weapons unlawfully, war crime allegations have to be adjudicated somewhere, right? In a previously published article, Yoo has called the Abu Ghraib abuses “sadistic.” Given that statement, it seems fair to ask whether the prosecutions and convictions arising from that case were improper because a court “second-guessed” the soldiers’ detention and interrogation methods? And should not U.S. military personnel who believe they have been unfairly prosecuted be able to pursue their legal appeals (in the event of a conviction) beyond the military system to the Supreme Court? If not, why not?
Cato and my readers raise good points about this issue which I will consider. The issue isn’t simple — there must be a balance in war-time between capturing and killing people who are trying to kill Americans and protecting the rights of the innocent. If we err on one side too strongly then many people will suffer.
For the record, I’m not in favor of making caricatures of positions with which I disagree — a tendency common with both sides of the political fence.