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How the Judiciary Is Chipping Away at the War on Terror

In times of war, the law often does fall silent.

The U.S. Supreme Court, in all its independence and courage, has endorsed concentration camps, censorship, sham military tribunals, and guilt by association at various points in its history. Textbooks and television sell us the caricature of heroic judges and inspiring courtroom debates, but in truth, a simple cry of “national security” frequently overpowers even the most eloquent defenses of constitutional rights.

Of course, the prevailing mythology is far from baseless. In New York Times Co. v. United States (1971), for instance, the Supreme Court condemned President Nixon’s attempts to block publication of the Pentagon Papers, with Justice Hugo Black emphatically declaring, “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”

Over a century earlier, in Ex Parte Milligan (1866), Chief Justice Salmon P. Chase found a similar mix of passion and erudition while invalidating the application of martial law to civilians. “The Constitution of the United States,” he wrote, “is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times.”

Even in the half-decade after 9/11, as George W. Bush and Dick Cheney rode a violent and unprecedented wave of executive power, the judiciary provided spirited support for Americans and foreigners ensnared in the Guantanamo Gulag.

In general, though, judges are wary of confronting politicians armed with a major crisis. Deference and capitulation are the safe options. There are many reasons for this tendency, but the simplest is that no judicial opinion can enforce itself. Especially when the president and Congress take a unified position, judges are smart enough to avoid picking unwinnable fights.

In other words, a wartime president needs to do something incredibly egregious and unilateral before fearing the law and the Constitution – and then he still might win, as Trump has on his absurd border wall “emergency” and transparently racist travel ban.

Signs of Impatience

Nevertheless, there are growing indications of judicial displeasure with the endless “War on Terror.”

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