Jonah’s right: it’s illegal (according to the court), not unconstitutional. And I think it’s strategically right to say this is a gift to the those concerned about national security, because it invites a debate in the months leading up to November about exactly what rights members of congress are willing to accord to the enemy in wartime. Two points here.
1. Justice Breyer’s short concurring opinion maintains that all the court has really done is invite the president to seek legislation from congress authorizing the commissions and defining their structure. Several folks, me included, have argued from time to time that this is overdue anyway — we should have a national security court, created by congress to get many of the terrorism cases out of the regular criminal justice system. But that said, Justice Breyer’s unfortunate invocation of the left-wing/civ-lib-extremist talking point, to wit, that “Congress has not issued the Executive a ‘blank check,’” is bombast.
There has never been a moment since 9/11 when Congress, had it chosen to, could not have prescribed a new scheme for military commissions. The president’s commission plan, well known since 2001, was fully permissible under existing statutory law and venerable court precedent. But Congress was not bound by it. It could have jumped into the breach at any point. In fact, it did jump in, enacting the Detainee Treatment Act in late 2005. By doing so, it demonstrated the obvious: if congress had been unhappy with the president’s commission procedures, it would have modified them. Instead, it acted in a manner precisely designed to let the commissions go forward without court interference.
This was no blank check. Congress examined what the executive branch was doing, was fully satisfied, and acted to correct the only thing it found offensive — the judicial intrusion.
2. A big issue to watch out for as congress re-examines this: the protection of classified information from al Qaeda in the trial process.
One of the principal reasons for having commissions rather than courts-martial or civilian trials is to prevent our enemies from learning what we know and how we know it. But the court held that the president had not justified procedures which call, potentially, for excluding the terrorists from the courtroom when classified information is introduced.
Now, let’s compare. Alien combatants have no constitutional rights; therefore, they have no constitutional right to be present at trial. On the other hand, protecting the security of the American people — which is what classified information is all about — is the number one obligation of government. So by what law does an al Qaeda killer’s purported right to be present outweigh the American people’s unquestioned right to have the government protect them (by, for example, not providing the enemy with sensitive intelligence)?
It could only conceivably be Geneva’s Common Article 3 — an international law provision the court had to twist beyond recognition to give the enemy its benefit. That fuzzy language talks about providing “judicial guarantees which are recognized as indispensable by civilized people.” OK, but who says all “civilized people” would opt to elevate a homicidal maniac’s right of access to the government’s most sensitive information over the government’s obligation to protect its citizens by withholding intelligence that may help those trying to kill them do just that?
Why is this question so important? Because you can bet a big part of the debate in congress will be about whether the court has left congress with any latitude here on this point.
That’s why Jonah’s observation about Hamdan not being constitutionally based is crucial. Congress absolutely has the power to deny al Qaeda terrorists the right to be present at portions of trial where sensitive evidence is introduced. Let’s leave aside that the court’s entire Common Article 3 rationale is hooey (the article doesn’t apply to al Qaeda and the court owed deference to the president’s interpretation to that effect). The salient point here is that when the inevitable argument is made that the Geneva Conventions now require handing over our intelligence to the enemy in wartime, congress – and more properly, the president (who has the authority to cancel treaties) — should make clear that we would withdraw from the Geneva Conventions (or at least any offending portions of them) before we do that.
The United States government’s job is to protect Americans, not please judicial elites, self-styled human rights activists, international law professors, and transnational progressives everywhere.