Now that we’ve had nearly 24 hours to digest the Supreme Court’s Hamdan decision, here are a few points about it that are emerging both interesting and troubling.
First, it can generally be said that when it comes to interpreting what the Supreme Court has decided, both right and left see exactly what they want to see and ignore anything that doesn’t buttress their arguments that (left) Bush is a lying weasel who acted illegally or (right) that the Supreme Court has entered into a treaty with al Qaeda and we’re doomed! Doomed, I say!
As Allah points out in this sober analysis (well…at least the analysis was sober. I don’t know about Allah.), the decision has both an upside and a downside. First, he quotes this passage from Steven’s opinion:
We have assumed, as we must, that the allegations made in the Governmentâ€™s charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that chargeâ€”viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Governmentâ€™s power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.
Allah tell us what this means:
If Bush dispensed with tribunals altogether and ordered the Gitmo gang held without trial for the duration of the WoT as prisoners of war, arguably that would be constitutional. As it is, if he wants tribunals, he has to go to Congress and get explicit approval. (Stevens says at the bottom of page 37 that if Congress wants to make special wartime exceptions to legal procedures, it has to be specific. The AUMF alone is too vague. Breyerâ€™s two-paragraph concurrence on page 82 emphasizes the point.)
This is the good news. Even though they struck down the concept of tribunals, the Supremes are inviting the executive to go hat in hand to Congress and ask for that specific authority. And even if many Democrats don’t believe we’re at war, by acknowledging the right of the executive to hold the Gitmo detainees “until the end of hostilities,” the Supreme Court accepts that fact which makes lefties look pretty stupid as they praise a decision that, as they see it, establishes limits on the President authority.
I’m all for limiting the executive’s authority. But the question I have is did the Supremes use a hatchet where a scalpel was required? It seems pretty clear that, unlike many past decisions of the Court, Stevens wanted to broadly address many of the questions regarding executive power that the Bush Administration has raised with its actions. As Allah points out, this includes the NSA intercept program that apparently has had its legal underpinnings knocked off:
Think Progress notes, correctly, that the Courtâ€™s unwillingness to read implicit grants of executive power into the AUMF might mean the end of the NSA warrantless wiretapping program, which Gonzales has said is based on that very statute. The issueâ€™s likely moot, though: Arlen Specter told Chris Wallace on Fox News Sunday that Bush was already leaning towards submitting the program to the FISA courts, and now that this has come down, his hand will probably be forced. I doubt Think Progressâ€™s point will ever be adjudicated, and if it is, the case is likely to be decided on constitutional (read: Fourth Amendment) grounds, not the specificity of the AUMF.
Personally troubling to me is if Bush is willing to now use the FISA court to get warrants, why couldn’t he have done it before? The implied explanation was that it would have involved dozens, maybe hundreds of decisions by the FISA court which would have delayed monitoring considerably. Is there a “compromise” that Senator Specter has come up with that addresses that or has Bush simply caved on the entire warrant issue?
We don’t know the answer to this and I imagine that any compromise would lie in manipulating some of the technical details of the program – details that are still secret. But personal doubts aside, the fact that the Supreme Court has pretty much confirmed the Administration’s policies of holding detainees indefinitely, albeit as POW’s, should be seen as a huge plus. At least we won’t have to open the doors at Gitmo and let these guys walk. (I still would like to see a judicial review of many of these cases in that from what we’ve heard, not all of these men were captured on the battlefield in Afghanistan and some may be held without cause.)
The downside of this decision has to do with the Court arrogantly assuming powers and prerogatives reserved for the Congress and/or executive. Allah points to the Court’s citing the Geneva Convention, specifically this from Article 3:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:
Allah slams the door:
Afghanistan is a High Contracting Party, so the question for the Court was whether Al Qaeda operatives captured there are subject to the Article. Answer: yes. â€œBut,â€ you say, â€œit says it applies only to conflicts â€˜not of an international characterâ€™ and the war on terror is as international as they come.â€ Indeed â€” but the Court is reading â€œinternationalâ€ in its literal sense, i.e., â€œbetween nations.â€ Al Qaeda isnâ€™t a nation. Which means no matter how global the jihad might be, so long as a jihadi is captured within the territory of a signatory to the Conventions, heâ€™s entitled to the protections of Article 3.
Those protections include not being subjected to torture or, much more broadly, “humiliating or degrading treatment.” And even if al Qaeda could give a tinker’s damn about the Geneva Convention, the United States has been forced into complying with it by the Supreme Court:
Even if itâ€™s not, itâ€™s â€œdegradingâ€ and therefore, per subsection©, illegal. Thereâ€™s no condition of reciprocity in the Article, either: unlike a contract, which dissolves for both sides if one party breaches it, weâ€™re bound no matter how many heads AQ hacks off and irrespective of the fact that theyâ€™re not a High Contracting Party themselves. Amazing.
But if youâ€™re dealing with a political entity thatâ€™s explicitly transnational and thatâ€™s rejected the Conventions repeatedly by deed if not in word, why deem them included? Article 3 leaves you with the absurd paradox of affording more protection to Al Qaeda members caught inside a signatory country than to members of a hypothetical group that scrupulously follows the Conventions operating inside a nation thatâ€™s not a High Contracting Party.
In the end, as Allah rightly shows, the idea that the War on Terror is a law enforcement problem has apparently won the day – for the moment. What is truly depressing to me is that if we are ever hit with another 9/11, we will have to rehash these same arguments again, perhaps with even more controversy. As Justice Thomas states in his magnificent dissent:
We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11â€”even if their plots are advanced to the very brink of fulfillmentâ€”our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists â€œredhanded,â€ ante, at 48, in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the Presidentâ€™s ability to confront and defeat a new and deadly enemy.
Is the President, as Commander in Chief, hamstrung by this decision? Have some of his vital war powers been stripped as some on the right are saying?
I think its clear the Court wanted to make a statement about this Administration and its ever growing use of untrammelled executive power. Granted (and the President’s enemies will never do so), I believe a very good case can be made that Bush’s aggressive use of the powers of the executive may have staved off another attack during the last 5 years. But at what cost? I am not as cavalier in charging the Administration with overstepping the bounds of legality and constitutionality as most of those on the left seem to do, although I recognize and accept some of their arguments. The fact that I believe they do so to score cheap political points at the expense of our security sometimes angers me. Because this is a debate that needs to take place. If we are going to have both liberty and security, some kind of consensus must be achieved or we will get what we got yesterday from the Supreme Court; a bludgeoning of the executive at the possible expense of our ability to protect ourselves.
First and foremost, the left must acknowledge we are at war – like the Supreme Court did – and that some grant of executive authority must be vouchsafed the President in order for him to do his job. The war is not some gigantic political ploy that Karl Rove is using to win elections. The threat is real and immediate. And to date, I have yet to see even a hint from the netnuts and even many in Congress that this threat is taken seriously.
We are lectured that the war is more than a military campaign. We are also lectured that just about any effort we make in the law enforcement area is subject to so many pie-in-the-sky, impossible dream civil liberty absolutist nonsense that if the FBI looks sideways at a suspected terrorist, they scream for the President’s impeachment. In short, the left has yet to prove that it is serious about defending America. And until they can show the American people more than the simple, mindless criticism of anything and everything the President has done to prevent another 9/11, they will not win no matter how many Iraqs or deficits or Abramoffs or DeLays or Plames or earmarks the Republicans stumble and fumble with.
Whatever the long term consequences of this decision, in the short term I believe it has given heart to our enemies. Too bad I didn’t see that issue addressed by Stevens in his opinion.