A Bit More on Terrorist ID

Deb, I had the late great James Vorenberg for criminal procedure. He was a wonderful teacher and mentor; I was sad that he passed away before I became a criminal-procedure professor myself. I’m not sure why you think the identity of my criminal-procedure professor back in law school might be relevant. But for what it’s worth, I had Vorenberg.

On the substance, I understand your argument to be that judges are as good as anyone to decide such questions. That is, even if judges are going to have a hard time with such issues, no one else is likely to be better. To reach this conclusion, though, I would think we need to make two assumptions. The first assumption is that familiarity with a military campaign and expertise in intelligence operations does not create any institutional advantage in identifying who is a terrorist. That is, identifying terrorists is a general skill; a generalist judge with no background or experience is at no disadvantage relative to those with more subject matter expertise. Second, we need to assume that the expertise and abilities of the judiciary as a whole are shared by each individual member of the judiciary. In your post, you treat “the judges” as a collective entity and discuss what “judges” can do and have done. But individual determinations are not made by the judiciary as a whole but rather by individual judges of varied experience, intelligence, and temperament.

Are these assumptions two valid? I assume you believe so, but I am not so sure. In any event, now that Boumediene has given this job to the courts, I trust you and I both hope that judges will do the best job they can with the difficult task ahead. No matter how good or bad they are at the job, that job is now theirs.