The War Is Over

Federal courts have just surrendered in the war against radical Islam.

Last Friday, the U.S. Court of Appeals for the D.C. Circuit dealt a crushing blow to national defense. The three-judge panel’s ruling in al Odah v. United States has gotten scarce media attention. Perhaps that’s understandable: It’s a mind-numbing technical dispute over “discovery” in litigation, vying for attention against the socializing of our economy and the consequent collapse of the stock market. But the discovery in question is the most vital kind, namely, that of classified national-defense information.

The government reserved to itself the power to determine what information in its files was exculpatory. This was consonant with criminal procedure, where the stakes for our security are not remotely as high. A criminal suspect, for example, has no right to force the government to present any exculpatory evidence to a grand jury, and the government is not required to produce all the information in its file at any stage — it must merely produce enough to establish probable cause at the indictment stage, and guilt beyond a reasonable doubt at trial.

For the D.C. Circuit, however, these standards, though good enough for American citizens accused of crime, are somehow not good enough for alien enemy combatants trying to kill American citizens. The panel found the government’s “mere ‘certification’” that information was immaterial, and should not be disclosed, to be insufficient. Allowing such a “naked declaration,” the judges harrumphed, would turn courts into mere “rubber-stamps.” Therefore, they said, “it is the court’s responsibility to make the materiality determination itself.” [snip]

The courts no longer see themselves as part of the U.S. government. The U.S. government, like the American people, is at war — or at least it has been. The courts are not part of that effort. They are spectator turned critic turned detached manager. Their self-perception is that of a shadow outside and above the U.S. government, serving not a Constitution of limited powers but “the law” — an ever-evolving, all-encompassing corpus of cosmic justice. The courts are not a forum to which Americans come to vindicate their rights against government; they are an overlord available to humanity to lodge its grievances against the American people and their government.

[Long and disturbing - but more proof {as if needed} of our out of control Judiciary. It needs be fixed. Recommended > ]

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