Reply to Marty

Morally relevant, Marty, not legally relevant. That a law exists does not mean that it is a good law. On the second point: not “two wrongs make a right,” but “historic practice has been to balance security and other values,” and one shouldn’t be fooled by absolutist rhetoric. To the contrary, indeed, one should consider the possibility that the decisionmakers in question—Lincoln, FDR, et al.—may have had good reasons for acting as they did. I was simply agreeing with Ben that moral argument should be brought to bear on policy problems; I was adding that nothing in history suggests that the moral starting point has been resolved. The tricky problem, as you note, is how to modify international law when it no longer reflects good policy and bars actions that may be justified under current conditions. Sometimes, states are able to renegotiate it, but this is an extremely cumbersome process; usually, they assert aggressive legal interpretations that other states either resist or acquiesce in. As for your question, I think rule of law values should be considered along with other values, but—I have a feeling that here is source of much of our disagreement-I don’t think they should be decisive.  That’s what makes me a living constitutionalist like your co-blogger Jack. But I agree with you that these decisions should be made by politically responsible officials at the highest levels.