Alexander Hamilton may have been a great statesman and financier, the kind of conservative who is also a visionary, but he was no prophet. At least not in Federalist Paper No. 78, in which he assured voters that the judiciary would always be "the least dangerous" branch of the proposed new federal government.
Learned in the law as he was, Colonel Hamilton could not have foreseen this present Supreme Court, which has vastly complicated the work of both the country's military and its intelligence operatives.
The court began by ignoring Congress' explicit instruction in the Detainee Treatment Act that "no court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba."
Then the court — to borrow a phrase attributed to a former governor of Arkansas — opened a whole box of Pandoras. A five-justice majority of the court proceeded, in Hamdan v. Rumsfeld, to put all plans for military commissions on hold until Congress would agree to re-establish them with new, unprecedented protections for unlawful enemy combatants, including Osama bin Laden's personal driver. Erasing the historic distinction between lawful and unlawful enemy combatants, the court ruled that these military tribunals also violated the Geneva Conventions, even though that treaty applies only to the governments that signed it, and al-Qaida was certainly never a signatory. (Its favored form of justice consists of beheadings on video.)
The Supreme Court's recent rulings in Hamdan and similar cases provide the best illustration yet of the late Robert Jackson's observation that the judiciary is ill-equipped to make foreign policy, especially military policy.
"Such decisions," Mr. Justice Jackson once observed, "are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility . . . ."
No wonder Robert Jackson's stature in law and statecraft grows year by year, decade after decade, as this Supreme Court continues to bear out his warning against an over-reaching judiciary. For the moment it has prevented the country from using military tribunals against a clear and all too present danger like al-Qaida, even though such tribunals go back to George Washington's time.
The administration's original proposal for establishing these military commissions afforded the accused a wide range of rights, including the right to be represented by counsel, to call witnesses and produce evidence, and the right not to testify or be forced to give incriminating evidence. The Bush administration drew the line at sharing classified information with suspected terrorists, but that reasonable precaution outraged its more reflexive, and unreflecting, critics.
You would think that by now the country would have learned the dangers of treating a war against this nation like any other matter for the ordinary criminal courts. Andrew C. McCarthy, who helped prosecute the terrorists in the original bombing of the World Trade Center back in 1993, has noted the dangers of revealing classified information during the course of such trials:
"Information that could be used against us in the ongoing war. Information the revelation of which might induce foreign intelligence services to refrain from cooperating with us. Information of the kind jihadists were lavishly given during the 1990s, when terrorism was regarded as a crime and al-Qaida reaped the benefits of disclosure-rich standards that govern American civil trials."
Under the compromise that the White House and key senators have reached, the defendant before a military tribunal would be allowed to see any evidence against him, but any classified material would only be summed up rather than risk revealing its source or how it was gathered — or any other details that would be of use to an enemy.
As for the techniques used by the military or the CIA to interrogate prisoners, rather than try to define exactly what is and what isn't torture, Congress has wisely left the subject where it should have been left in the first place — to common sense and a general prohibition of "cruel, inhuman or degrading treatment."
Trying to fine-tune interrogations of enemy suspects by law is ridiculous. It would be like trying to write a set script for all good cop, bad cop routines. Any more specific rules governing interrogations are to be published in the Federal Register for all to debate. Which is how the system, slow and balky as it is, should work.
What the Supreme Court has confused, the other two branches are now working to straighten out. Here's hoping the court will let their work stand, but there's no telling which way its majority will go after Hamdan. Contrary to Alexander Hamilton, the judiciary may prove the most dangerous branch of government if its decisions keep the executive from preventing another September 11th.
It may be too much to hope that the honorable justices will keep in mind another wise piece of advice from Mr. Justice Jackson: "There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."
