Gingrich and the Courts

In 2005, Congress barred our terrorist enemies from appealing their wartime detention to the civilian courts. The Detainee Treatment Act (DTA) was an eminently reasonable statute. The handling of captives in wartime had always been exclusively an executive-branch prerogative — war being a political and military exercise, not a litigation. The framers committed all aspects of warfare to the political branches, accountable to the people whose lives are at stake, not to the politically insulated judiciary.

Congress acted comfortably within its powers: The Constitution makes it master of the federal courts’ jurisdiction. Indeed, other than the Supreme Court, all federal courts are creatures of statute — the Constitution does not require their existence. Yet, in a nod to the ambiguities of terrorist warfare, in which jihadists do not operate openly as honorable soldiers, the DTA even provided a narrow avenue of judicial review. That made our enemies the first anti-American belligerents in history to be given systematic access to American people’s courts in wartime — something the World War II–era Congress would not have tolerated, and that the Supreme Court of that time actually warned against.

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