This week, federal district judge James Robertson ruled that a Guantanamo prisoner could not be tried by military commission until "a competent tribunal determines that [he] is not entitled to protections afforded prisoners of war under Article 4 of the Geneva Convention ... of Aug. 12, 1949." And the President--who has declared all Guantanamo detainees "enemy combatants" exempt from the Geneva Conventions--"is not a 'tribunal,'" Judge Robertson wrote.
For every action, there is a swift and opposite reaction. At a gleeful meeting of the Federalist Society on Thursday and Friday, John Ashcroft minced no words:
Mr. Ashcroft had many in the crowd rapturous when he criticized judges who, he said, refused to recognize that they did not have the power to limit the president's authority to conduct a war against terrorists.
"The danger I see here," he said, "is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war."
The hostility to judicial review that Ashcroft shares with the Bush Administration was echoed even more plainly at this meeting by Justice Scalia:
"It is blindingly clear,'' he said, "that judges have no greater aptitude than the average person to determine moral issues."The first thing to be done by the new Bush Administration is to take care of all the judges. Lawyers with dissenting readings of the Constitution are put on notice.
*I'm using this tired old line in a lawyerly way, but I can't help it.
UPDATE: Eric Muller is on the case, and Jack Balkin has some advice.