The Supreme Court’s decision to impose by judicial fiat a treaty that no politically accountable official would dare propose — a one-sided compact wherein the United States gives elevated due process to al Qaeda’s terrorists while they continue slaughtering civilians and torturing their captives to death — is an abomination.
The extent of the abomination is difficult to quantify. Thursday’s decision in Hamdan v. Rumsfeld gets worse the more one studies it.
To begin with, the Court had no business deciding this case at all. Not only did it target the president’s commander-in-chief authority to determine what is militarily necessary in wartime, it also imperiously slapped down the U.S. Congress. In last December’s Detainee Treatment Act (DTA), Congress — acting on its constitutional prerogative — rescinded the unprecedented jurisdiction that the Supreme Court, in the 2004 Rasul case, had tried claimed over alien enemy combatants captured in wartime and held outside the U.S. (that is, outside the jurisdiction of U.S. courts). This Court, however, acknowledges no limits on its powers — whether imposed by Congress or by the English language, which it had to torture in order to construe the DTA’s unambiguous limitation of its jurisdiction as an invitation to meddle.
And meddle it did. It rewrote legislation that clearly authorized the military commissions for captured terrorists that President Bush ordered in late 2001. It rewrote the Geneva Conventions. And it claimed for itself the mantle of final authority over both international relations and military necessity — matters in which it is wholly lacking institutional competence and which the Framers committed singularly to the chief executive.
The result was somehow to find that the military commissions are unauthorized under federal law and unfair under international law. Never mind that they guaranteed our enemies the rights to counsel, to the presumption of innocence, to proof beyond a reasonable doubt before conviction, to the privilege against self-incrimination, to confront the government’s witnesses and summon witnesses in their defense, and to prepare a defense with broad discovery of the government’s evidence and investigative file.
How could this conceivably be insufficient due process for alien combatants with no legitimate claim on Bill of Rights? The Court fretted that the procedures might not permit captives like Salim Ahmed Hamdan — the driver and bodyguard of Osama bin Laden — to be present at every stage of their trials. This is perhaps the most deplorable of the excesses endorsed in Justice John Paul Stevens’s majority opinion (joined by Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer). First, the concern is sheer speculation. There hasn’t been a commission trial yet, and there is no way to know whether Hamdan would have been excluded from any part of a trial, much less whether the degree of exclusion would have been unjustifiable. Second, the rules allow for the combatant’s military lawyer to be present even when he is not. But third, and most fundamentally, safeguarding national security is the highest obligation of government. The commissions wouldn’t have guaranteed Hamdan’s right to be present at every stage of the trial in order to preserve the government’s ability to conceal from the enemy, during wartime, our national-security secrets, as well as our methods of obtaining them. Protecting Americans from attack depends on that ability. But five justices of the Supreme Court, completely unaccountable to the Americans whom the government is obliged to protect, have subordinated that obligation to the hypothetical interests of enemy operatives who have no judicially enforceable rights under American law.
In deciding as it did, the Court also ignored its own venerable precedent — of over a half-century’s standing — that the Geneva Conventions, even when they do create binding obligations on governments, do not create judicially enforceable rights for individuals. Disputes over their application are, rather, to be worked out diplomatically, among the political representatives of sovereigns. Moreover, the Geneva Conventions were irrelevant to Hamdan’s case. He is a terrorist combatant who fails to meet the conventions’ definition of a prisoner of war; consequently, he is not entitled to the conventions’ POW protections. In order to get around this inconvenient fact, the Court had to invoke (and distort) “Common Article 3” of the conventions, which applies only to civil wars taking place within the territory of a single country, as opposed to international conflicts. The Court argued, absurdly, that because al Qaeda is not a nation, it cannot be in an international conflict: so the global War on Terror is not “international,” despite having been fought in the United States, Somalia, Yemen, Kenya, Tanzania, Afghanistan, and Iraq. As for Article 3’s requirement that the conflicts to which it applies be confined to a single country, the Court’s majority found an easy way to get around it: by ignoring it.
Hard as it may be to believe that the Court, without any grounding in either American law or the Geneva Conventions, has effectively signed a treaty with al Qaeda for the protection of its terrorists, there may be a silver lining. The case implicates only trials of enemy combatants, whom the president remains authorized to detain until the end of hostilities — however long that takes. In addition, the Court held that military commissions would be permissible if Congress authorized their precise terms and procedures. Sens. Lindsay Graham and John Kyl, who were the engines behind the Detainee Treatment Act that the Court cashiered, have already indicated they are ready to get to work on this. Arlen Specter also has a proposal. There is no issue more important than national security, and with the 2006 elections beckoning it is essential that Republicans move quickly on legislation. Our elected representatives need to be on record, now, about what rights they would give to Qaeda terrorists in wartime.
As yesterday’s decision again demonstrates, this Court would rather impose its preferences on us than simply follow the law. We should find this unacceptable in any case. But when the consequences of the Court’s arrogance rise to the level of life and death, there is only one word to describe what it is: an outrage.