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Through the Looking Glass
The absurdity of Hamdan.


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Hadley Arkes

Time again for Tom Stoppard’s “Reporter Doll”: You wind it up — and it gets it wrong. The news of the Hamdan case broke on Thursday, and the headlines have offered an account almost the reverse of what has actually taken place. The main message, coming out quickly, was that the Court had checked an executive running beyond control, breaking past the boundaries of its powers under the Constitution and the laws. That was the version through the Looking Glass. The more sober version was that five judges, under the pretext of reining in the president, had defied the restraints that the Congress had placed, quite emphatically, on the courts.

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Those restraints had been enacted precisely to keep the judges from extending their power into the domain of military judgments. More than an attack on the executive, the decision in Hamdan showed contempt for the Congress. The Court treated as a mere trifle, to be put aside, the clear power of Congress under the Constitution to grant, to shape — and to withhold — the jurisdiction of the courts. We might ask, where is the outrage from Arlen Specter, so quick to take offense on other occasions when the Court seems to be disparaging the force of reason in his legislative handiwork?

What Legal Protection for Terrorists?
Salim Hamdan was a driver and bodyguard for Osama bin Laden, before he was captured in Afghanistan. He was charged with providing protection, running weapons, and discharging other services for people involved in a design to kill Americans. Justice Stevens insisted that Hamdan had not exactly been found guilty of any overt act that fitted the definition of a war crime. But that did not prevent Stevens from declaring at the end 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.” Stevens and his colleagues would not challenge then the authority of the executive to “detain him for the duration of active hostilities in order to prevent such harm.”

Then what was the issue? If the government sought to try Hamdan and punish him through a military commission, the rules there would not be as protective of defendants as the procedures in courts martial or in other courts. The military commissions could admit hearsay evidence, or evidence with probative value that would be thrown out in other courts. There would also be more restrictions in seeking judicial review, along with a host of other differences.

But why could the commissions not have a different cast, dealing with combatants who were not part of national armies, respecting the rules of war? After all, during the Second World War, FDR himself ordered military commissions to try Nazi saboteurs who had landed in New Jersey and Florida. Hamdan could be charged with overt acts far clearer than the acts that could be plausibly charged or proved against those saboteurs. And yet they were tried and executed with remarkable dispatch. But Justice Stevens and the majority argued that Congress had acted since then to make such procedures more exacting, to make the military commissions come closer, in their legal regimen, to that of the courts martial.

That reading, however, was not at all so clear to Clarence Thomas and his colleagues in the minority. The majority was imputing to Congress an intention of making all military tribunals more “legal” and fastidious in the same way, a reading that depended on conjectures plausible or implausible. In striking contrast was the intention made unmistakably clear by Congress in December 2005, when it enacted the Detainee Treatment Act. And enacted it with the Hamdan case very much in mind. That act offered some restrictions on the treatment and interrogation of detainees, but it was also quite emphatic in stipulating that “no court, justice, or judge” shall have jurisdiction to consider petitions for habeas corpus emanating from detainees held in places like Guantanamo Bay.

A “Rebuke” Without Precedent
As if to soften the sting of the decision for the executive, Justices Breyer, Kennedy, Ginsburg, and Souter pointed out that “nothing prevents the President from returning to Congress to seek the authority he believes necessary.” With the same expansive gesture, Justice Kennedy noted that “Congress has the power and responsibility to determine the necessity for military courts, and to provide the jurisdiction and procedures applicable to them.” Nicely filtered out of his gesture was the recognition that Congress had done just that — and done it forcefully: no courts or judges in fact have jurisdiction to hear these cases.

That was the central, dominant point that Justice Scalia would make in leading the dissents. He would make it with a clarity that was penetrating, precise, and unanswerable. The Detainee Treatment Act was signed on December 30, 2005, and governed all cases as of that date. The majority would affect to believe that Congress intended to cover only those cases arising on or after December 30. But as Scalia showed, the plain meaning of the act was to govern all cases in this field, including the cases that were already underway.

Years ago, Felix Frankfurter had reviewed the history of Congress governing the jurisdiction of the Court, and as he recalled the days of Reconstruction, after the Civil War, he recalled the lesson of Ex parte McCardle (1869): that the Congress, in controlling the jurisdiction of the courts, could remove that jurisdiction even for a case that was sub judice, under judicial review, even at the time. As Scalia sought to show, this understanding, carried through, had been confirmed in a long line of precedents. What had happened, suddenly, to “stare decisis,” to that veneration for precedents long settled, of which we had heard so much, expressed so feelingly, during the recent hearings for Samuel Alito? But now Scalia had to remind his colleagues that when Congress said, unequivocally, that “no court, justice, or judge” was authorized to hear a petition for habeas corpus in these cases, the Congress had evidently meant the Supreme Court as well.

From Unaccountable Judges
What was so deftly masked by the Court was the truth that almost never speaks its name: that when it comes to the preservation of a constitutional government, it is far more critical to restrain judges seeking to extend their controls to the military, than it was to rein in the executive’s command of the military. When judges pronounce on cases, our attention is usually drawn to the justice that is done to the people on either side. In the trick-of-the-eye we may fail to notice that when the judges take a case, the first impulse is to assign to themselves the power to govern.

In the case of Hamdan and the military, the shift was so subtle that even Justice Stevens hardly seemed to notice: The executive argued that it was impracticable to apply to cases like Hamdan’s the rules that apply in courts-martial, but Stevens and his colleagues did not see such practical difficulties. “It is not evident to us,” he wrote, “why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.” It was not evident to Stevens and his colleagues? But why would they have the competence to make that judgment, and even if they did, how would they claim the authority to make it? If a president were wrong, he could be held responsible. But the judges could not be readily removed, as they are there these days nearly for life. The judges were claiming nothing less than the authority to judge “military necessity,” not from their involvement, every day, in the direction of operations, but from their cloisters in the Court, surrounded by clerks. As Scalia aptly warned, this kind of case brings the Court into conflict with the executive “in an area where the Executive’s competence is maximal and ours is virtually nonexistent.”

Al Qaeda’s Conclusions, and the Military’s
Congress may swing into action now to make clear again that the president has the authority to set up military commissions. Yet, that fine tuning belies the grosser truth, evident to the rest of the world, and evident even more to al Qaeda: The risks have been diminished for making war on the United States. “If you are captured, you may be detained for a long while. But if there is any effort made to try or — gasp! — to punish you, you will have access to lawyers and you may readily tie up the government in litigation. You will come under the rule of judges. You will become, in that respect, like other Americans, and that is gravest punishment you will suffer.” On the other hand, the lesson drawn by the military may be this: If you wish to call down three 500-pound bombs to dispatch Zarqawi, the Constitution imposes not the slightest restraint. But if you take him into custody, he is in the hands of the lawyers, and the leverage may shift to him.

If we weren’t living in such pusillanimous times, the Congress would recognize that the decision in Hamdan was a deeper affront to the Congress than to the executive. It would respond by making a cosmetic change in the Detainee Treatment Act, firming up the power of the executive, affirming the military commissions — and inviting the Court to try it one more time, but this time to get it right. In the best of worlds, with the best writers, the Congress might also add a preamble to remind the judges that, in the design of the Constitution, the judges, no less than presidents, must respect the boundaries to their own reach.

If there is any principle at the heart of the American revolution, and bound up with the very idea of government by the consent, it is the principle stated and restated by Clarence Thomas in these cases:  The safety of the American people cannot be put in the hands of officials who bear no direct responsibility to the very people whose lives are at stake in their judgments.

—Hadley Arkes is the Edward Ney Professor of Jurisprudence at Amherst College.



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