The same slippery slope one assigns to the Supreme Court in Rasul v. Bush–an outrageous ruling explained well by Andy McCarthy and others–is no less likely in Hamdi v. Rumsfeld. The fundamental issue here is judicial review in the context of war, and the proper extent of that judicial review.
I’m not much impressed with the alignment of the justices in some of the arguments I’ve been hearing. Conservatives, including originalists like Antonin Scalia and Clarence Thomas, can’t be expected to agree all the time. And they don’t. So, the mere fact that they disagree in Hamdi is of no persuasive value.
There is nothing in the Constitution that gives primacy over war-related matters to the courts. Indeed, the Constitution assigns such authority to the president. Some apparently believe the courts are somehow more qualified or trustworthy to rule on, say, detentions. But why is that? Why is it assumed that a single judge or group of judges are more competent in weighing the rights of individuals against national-security needs, even if the Constitution granted them such power? The ingrained bias against the elected branches, including among some conservatives, is noteworthy in many of the Hamdi analyses.
There is no evidence that Hamdi has been mistreated during his detention. He has access to a lawyer. He has access to multiple federal courts. The issue was whether, and the extent to which, he could argue against the government in a habeas hearing. Consequently, the executive already agreed to some level of judicial review. Scalia’s chest-beating aside, this is not a star-chamber situation. However, the executive’s concession to some judicial review has led the Court to insist on more, with applause from most liberals and many conservatives. This is a fundamental breach of executive authority, and yet it’s dismissed as upholding a basic constitutional right.
The Court does not deserve this kind of deference, certainly not from originalists. From Dred Scott (upholding slavery) and Plessy (upholding segregation) to Korematsu (upholding the imprisonment of 120,000 Japanese Americans and Americans of Japanese ancestry), the judiciary has a record of hostility to individual liberty and the rule of law that does not justify, as a policy or political matter, the kind of reputation for moral superiority over the other branches some confer on it. Judicial review is a separation-of-powers issue, and here the power to manage a war rests with the president.
Moreover, the judiciary is not well equipped by experience, background, or knowledge to best make judgments related to war. Indeed, it is the least qualified of the three branches. The Court acknowledges that Hamdi does not present a garden-variety criminal matter, and yet it stretches to treat his detention as such by cobbling together an unclear due-process requirement, which will be left to the lower courts to figure out.
Finally, some seek to downplay this decision by noting that there are only two U.S. citizens affected by this decision, and few others likely to be affected, and therefore its reach is limited. So, what’s the big deal? These days, and in this war, a single U.S. citizen, working in collaboration with al Qaeda or other terrorist groups, is potentially more dangerous to more people in this nation than any foreign standing army or foreign fighters. A person who uses his U.S. citizenship as cover to plot the worst kind of attack on his fellow countrymen poses the worst kind of threat this nation. And information such a person may have about future attacks against this nation, much of which the government may want to keep secret to thwart conspirators, justifies a decision by the president to detain him. The fact that the president has exercised this power in only two instances demonstrates his good faith and good judgment, for which he receives no recognition.
Detaining these two individuals for approximately two years during the course of this war seems perfectly reasonable on its face, and deserved the deference the Constitution gives the executive, not the courts. This was a bad decision.
–Mark R. Levin is president of Landmark Legal Foundation and talk-radio host on WABC 770 AM in New York.