The Supreme Court’s Deference to the Pentagon | WHAT REALLY HAPPENED


The Supreme Court’s Deference to the Pentagon

Imagine a county sheriff that took a suspected drug-law violator into custody more than 10 years ago. Since then, the man has been held in jail without being accorded a trial. The district attorney and the sheriff promise to give the man a trial sometime in the future but they’re just not sure when. Meanwhile the man sits in jail indefinitely just waiting for his trial to begin.

Difficult to imagine, right? That’s because most everyone would assume that a judge would never permit such a thing to happen.

Not so, however, with the national-security establishment, specifically the Pentagon, the CIA, and the NSA. As Michael Glennon, professor of law at Tufts University, points out in his book National Security and Double Government, the national-security establishment has become the most powerful part of the federal government, one to which the judicial branch (as well as the other two branches) inevitably defers in matters that are critically important to the Pentagon, the CIA, or the NSA.

An excellent example of this phenomenon is the Pentagon’s prison camp at Guantanamo Bay, Cuba. When the Pentagon initially established Gitmo as a prison camp after the 9/11 attacks, it did so with the intent that it would be totally independent of any interference or control by the federal judiciary. That’s why it chose Cuba for the location of its prison — so that it could argue that the U.S. Constitution did not apply and the Supreme Court did not have jurisdiction to interfere with its operations. (It was an ironic position given the oath that all military personnel take to support and defend the Constitution.)

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Maintaining the veneer of control, however, the Supreme Court ultimately held that it did in fact have jurisdiction over Guantanamo. But as a practical matter, the Court deferred to the ultimate power of the Pentagon, as manifested by the fact that there are prisoners at Guantanamo who have been incarcerated for more than a decade without being accorded a trial.

In other words, what the judiciary would never permit to happen under a local sheriff or the DEA has been permitted to happen under the Pentagon. That’s because the judiciary knows that given the overwhelming power of the Pentagon (and the CIA and NSA), there is no way that some federal judge would be able to enforce a contempt order with some deputy U.S. Marshalls confronting, say, the 82nd Airborne Division.

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