Thursday, November 13, 2008


Yesterday, in a five-to-four split decision, the Supreme Court ruled in favor of the Navy over its use of sonar in the Pacific off California. A number of groups had tried to hold the Navy to compliance with the National Environmental Impact Act because of their fear that the Navy's anti-submarine exercises would harm marine life with its high powered sonar signals.

In a decision reminiscent of the shameful Korematsu case - the WWII case where the Supremes weakly went along with Roosevelt's plan to lock up all Japanese Americans in camps for the duration of the war on the basis that the Court had no business second guessing the arguments of military military officers, - Chief Justice Roberts based his decision on and gave extreme deference to testimony of Navy officers who claimed that sonar testing was necessary for the training and ability of Navy personnel to find, detect and destroy "enemy" submarines. Marine mammals might be harmed but the Navy's arguments, based on fear that a more serious harm would occur to national security unless it could resume its sonar exercises, won the day, at least with five of the nine justices.

The case is WINTER, SECRETARY OF THE NAVY, v NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL. Here is a link to the text of the case.

Roberts writes:

"The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs the interests advanced by the plaintiffs. Of course, military interests do not always trump other considerations,and we have not held that they do. In this case, however, the proper determination of where the public interest lies does not strike us as a close question. . . .

"President Theodore Roosevelt explained that "the only way in which a navy can ever be made efficient is by practice at sea, under all the conditions which would have to be met if war existed." President’s Annual Message, 42 Cong. Rec. 67, 81 (1907). We do not discount the importance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines."

I disagree with Roberts. Why should preparation for war outweigh preserving whales and other sea life? Even though Roberts says, "military interests do not always trump other considerations, and we have not held that they do," I suspect that he and the other members of the Court who sided with him (Scalia, Alito, Thomas and Kennedy) would nearly always find the interests of the military outweigh and trump non-military interests. These justices are surely Republicans (other than Kennedy about whom I am not sure) and in my mind Republicans tend to be militaristic and try to solve problems with ships and tanks.

Roberts talks about "enemy submarines." The Navy has convinced him that there are forces of evil lurking and hiding in the deep seas ready to strike America. This is fanciful imagination at work in the halls of the Court. Bush-speak has invaded judicial chambers. America represents the good, the rest of the world forces of evil.

We don't need a Navy carrying out anti-submarine exercises off the coast of California. In the same way, we don't need an air force dropping bombs on villagers in some remote agrarian part of Pakistan.

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