Save the Whales?

ItâÄôs been a wild week in the courts for the Bush administration as judges all over the country are deciding where to establish the limits of executive power in the ongoing war on terror. Federal Judge Ricardo Urbina suggested Tuesday that he might free 17 Chinese Muslim detainees from the prison in Guantanamo Bay, Cuba into the United States as early as Friday. And while the Department of Justice was preparing an emergency appeal, the U.S. Navy was fighting its own battle in the U.S. Supreme Court against âĦ whales. Well, sort of. The high court heard arguments Wednesday in a case where the worldâÄôs largest mammals square off against the NavyâÄôs use of sonar. On a deeper level, the case also addresses critical questions about the separation of federal powers. The lawsuit originated in March 2007, when the National Resource Defense Council (NRDC) sued the Navy in a California Federal District Court for its use of anti-submarine sonar in training missions. Sonar is a system for determining the position of unseen, underwater objects using the transmission of sound waves. According to its website, the NRDC is AmericaâÄôs âÄúmost effective environmental action group, combining the grassroots power of 1.2 million activists with the courtroom clout and expertise of more than 350 lawyers, scientists and other professionals.âÄù According to an Oct. 6 press release from the NRDC, scientists have proven that military sonar injures and kills whales. âÄúDebilitating and lethal injuries are occurring in whales exposed to sonar at sea, perhaps by altering their dive patterns,âÄù the release said. The goal of the lawsuit was to prevent the Navy from using mid-frequency active (MFA) sonar during training. The NRDC alleges that MFA sonar use violates various federal environmental laws. In January 2008, the district court ruled in favor of the NRDC, holding that the use of MFA sonar created a âÄúnear certaintyâÄù of irreparable harm to the environment. The court issued a preliminary injunction severely restricting the NavyâÄôs use of MFA sonar, including prohibiting its use entirely whenever a marine mammal was within 1.25 miles of a sonar source. In response to the courtâÄôs ruling, Chief of Naval Operations Mike Mullen said such restrictions would âÄúcripple the NavyâÄôs ability to conduct realistic pre-deployment training.âÄù In an appellate court brief, the Navy said that personnel using sonar must âÄútrain with it regularly, under realistic conditions and in a variety of situations.âÄù President George W. Bush, both through his own office and through the executive office of the Council on Environmental Equality, attempted to exempt the NavyâÄôs activity from the laws, stating that âÄúthe use of mid-frequency active sonar in these exercises are in the paramount interest of the United States.âÄù The president also declared that compliance with the injunction would âÄúundermine the NavyâÄôs ability to conduct realistic training exercises that are necessary to ensure combat effectiveness.âÄù The Navy has largely denied the negative effects of sonar, stating in their Supreme Court brief that âÄúthere have been no observed or documented incidents of injury or death to marine mammals resulting from MFA-sonar exposure in [Southern California] in the past 40 years.âÄù Despite the presidentâÄôs efforts, the district court upheld its injunction, ruling that the government did not establish the necessary âÄúemergency circumstancesâÄù required to sidestep the federal statute. The 9th Circuit Court of Appeals agreed. The Navy appealed the ruling to the Supreme Court, which brings us to WednesdayâÄôs arguments. The NRDC has pointed out that they are not seeking to abolish the NavyâÄôs sonar training. âÄúWe are not questioning their judgment that mid-frequency sonar training is necessary,âÄù said NRDC lawyer Joel Reynolds in an Oct. 7 story in âÄúThe Christian Science Monitor.âÄù âÄúOur concern is simply that when they do it, they use common-sense safeguards to reduce the risk.âÄù The Navy claims that the American people will be better served by a well-trained military, especially in an age where submarine technology is growing at a dangerous rate. âÄúAnti-submarine warfare is a high-stakes cat-and-mouse game that may span days and require large teams of personnel working in shifts around the clock,âÄù the Navy stated in its Supreme Court brief. âÄúTerminating or reducing sonar transmissions while attempting to locate and track a submarine, even for a relatively brief period, may allow the submarine to go undetected or escape.âÄù At its most immediately applicable level, this case is about whales and military technology. The NRDC and company claim that whales are dying because of the NavyâÄôs practices. The Navy claims that the effects of its testing are negligible at best, necessary at worst. More generally, the case pits environmentalism against national security. ItâÄôs the sort of duality that tends to divide modern Americans along partisan lines (If America cared about what was happening in the Supreme Court, that is). In an era where the political split in American society seems to be increasingly reflected by its highest court, it will be interesting to see how the justices decide this issue. If my guess is worth anything (and itâÄôs not), Justice Anthony Kennedy will likely cast the crucial swing vote between the courtâÄôs equally staunch âÄúconservativeâÄù and âÄúliberalâÄù factions. Finally, the case implicates the balance of power among all three branches of the federal government. Essentially, the president is attempting to side-step laws enacted by Congress via his Constitutional role as the head of the military. His ability to actually do this has been (at least until now) curtailed by the judicial branch. Since the final decision of the court doesnâÄôt hinge on whether or not whales are actually affected by the NavyâÄôs sonar, the lasting legacy of this case will be the ability of the Bush administration to do whatever it deems necessary in the ongoing battle against AmericaâÄôs enemies. Jake Parsley welcomes comments at [email protected]