Congress–and the nation–will in coming weeks have to engage seriously in a debate about how to treat our detainees in the war on terror in a way that is consistent both with America’s safety and with Constitutional and legal limitations on the power of the government. An important part of this debate will be the Supreme Court’s recent ruling in Hamdan v. Rumsfeld, and it is too bad that very few Americans–and very few of the people making comments about it–have any idea what the ruling actually says. The effect can be observed in the liberal talking points developed in rapid reaction to yesterday’s speech announcing the proposed legislation: The president should not be proposing legislation to legalize policies that the Supreme Court has already struck down as unconstitutional. In fact, the Supreme Court has done no such thing.
Because it is so long and technical, most people never understood how inconsequential the Hamdan decision is in constitutional terms. No part of the ruling raises an issue of constitutional law, and the Hamdan Court says almost nothing about the powers of the president, except to confirm them. The ruling did not declare unconstitutional any law of Congress or any action of the President. In fact, it is composed chiefly of the most trivial technicalities of statutory construction that I have ever encountered in a Supreme Court opinion. (And I had to read hundreds of them in law school). And because it is pure statutory construction, every part of the ruling can be “reversed” by changing or clarifying the underlying statutes–the Detainee Treatment Act of 2005, and the Uniform Code of Military Justice.
This suggests the proper way to understand the legislation proposed by the President yesterday. If passed, it will not only almost completely reverse the effects of the Hamdan ruling, but it will also leave the President’s national security policies on much firmer and more permanent footing: that of federal legislation. Meanwhile, it’s worth recalling the single most important sentence in the Hamdan majority’s opinion: ” It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities.” — i.e., indefinitely.