09 November 2004

A Separate Peace

Or, perhaps, a separate war. The war being fought over prisoners of that other war, that is. In a courageous and thorough decision (PDF, 150k), Judge Robertson of the District Court for the District of Columbia smacked the Bush Administration about the head and shoulders for its arrogation of judicial authority. In essence, the Bush Administration has contended that the executive branch may unilaterally make unreviewable findings of fact. Even Chevron does not go that far. So, without even getting into the requirements of international treaties that we've signed, which overrule anything the executive branch might wish to do, we can see that Judge Robertson is correct. There's some more-detailed analysis over at Intel Dump.

Fortunately, this is in the DC Circuit, not the Fourth Circuit; thus, we're much more likely to get a sensible appellate decision. If, that is, the particular questions raised do not result in the matter being heard directly by the Supreme Court. It is unfortunate that Chief Justice Rehnquist's health problems come at this time, because they counsel against direct review (which the Court does have the authority to order).

The irony of conservative claims of further power for the government seems to have escaped the players here.