LAW FROM THE CENTER

Finally, a voice of reason in the battle over Camp X-Ray.

The battle over Guantanomo Bay detainees often results in the left and the right talking past one another. In various amicus briefs to the Supreme Court filed this week, two positions were staked out: the left says the detainees should be given full Constitutional rights, while the right says the case shouldn't even be heard by the Court.

But one brief stands out. Today, link here, word comes that the JAGs representing the detainees in Guantanomo Bay have staked middle ground. They agree with the right in the substantive argument that the detainees have enough rights already. However, they also agree with the left in the procedural argument that the court should hear the case and make that determination for itself. A la Marbury v. Madison, the JAGs are asking the court to both support the government action, and at the same time make sure that the judicial branch preserves its expansive jurisdiction. Judicial activism through judicial restraint.

This argument has win, win, win all over it, and represents brilliant lawyering. The Solicitor General's office, under the Bush administration, instead of using creative arguments to defend their positions, has pursued a scorched-earth policy of arguing in case after case that the Court simply doesn't have jurisdiction to hear the case, or should recuse itself due to justiciability concerns. Understandably, the Court has rarely found this a willing argument, even though they may have otherwise been amenable to the government's substantive claims due to the Court's current political makeup. The solicitor general should abandon it's crusade to contract the Court's jurisdiction; while the Rehnquist Court has in the past held this belief, recent decisions make clear that it has ended such a campaign and is now acting to stop the ebb of the Court's power.

Another interesting point is the power of Military amicus briefs as a centralizing influence (chalk another one up for the centrists!) In a court that finds it hard to communicate even with itself, it has increasingly relied on the military to provide pragmatic arguments on substantive points of law, instead of the caustic political rhetoric that pervades most amicus briefs. In short, the military has been the only true "friend of the court" in recent decisions. For a case in point, the Court's recent decision affirming affirmative action relied heavily on the Joint Chiefs of Staff amicus brief arguing that overturning affirmative action would hurt military recruiting programs, and in turn hurt national security. It was the only amicus brief that was heavily quoted, and seemed to be extremely influential on the court's reasoning. With a deeply divided court that most pundits believed would overturn the Michigan undergraduate admissions policy, the military brief may have been the unifying factor that broke the ideological logjam.

Indeed, the military is defending the civility of our nation in more ways than one.