Orin Kerr writes what ought to have been obvious from the start: Congress, if it believes it necessary, ought to simply suspend the writ of habeas corpus on the grounds of “invasion” and “public safety.” Like Kerr, I’m not saying that the circumstances warrant doing so, but that is the route that the Constitution prescribes, and if Congress believes it is the proper thing to do, that is what they ought to do, rather than trying to find face-saving ways of avoiding doing the dirty jobs that war requires.
It’s just like the declaration of war matter. The “Authorization for the Use of Military Force” is, in fact, a declaration of war. But by refusing to call it that, or to use the word “war,” Congress has created a great deal of conceptual confusion and internal strife that is unnecessary and counterproductive. In the end, it’s really best to just face up to decisions squarely, rather than trying to find ways of accomplishing the end in a plausibly deniable disguise. For one thing, it makes it easier to undo that act when the time is right. By not using the word “war” in the AUMF, it is now harder for anyone to declare a conclusion to hostilities when (and if) we prevail. If Congress expressly suspended the writ, it would be relatively easy to restore it when the emergency is passed. As it is, we now have a complicated, high-stakes, extremely frustrating and distracting game of bouncing back and forth between Congress and the Courts, with each side accusing the other of malfeasance and bad faith, when we ought to be resolving to accomplish the ends before us.
