1861. 1941. 2001. Our big wars and the war on terrorism ranks with the big ones have a way of starting in the first year of a decade. Supreme Courts, which historically have been loath to intervene against presidential war powers in the midst of conflict, have tended to give the president until mid-decade to do what he wishes to the Constitution in order to win the war.
During the Civil War, Abraham Lincoln suspended the writ of habeas corpus trashing the Bill of Rights or exercising necessary emergency executive power, depending on your point of view. But he got the whole troublesome business done by 1865, and the Supreme Court stayed away.
During World War II, Franklin Roosevelt interned Japanese Americans. He, too, was left unmolested by the court. But Roosevelt also got his war wrapped up by 1945. Had the current war on terrorism followed course and ended in 2005, the sensational, just-decided Hamdan v. Rumsfeld case concerning military tribunals for Guantanamo Bay prisoners would have either been rendered moot or drawn a yawn.
But, of course, the war on terrorism is different. The enemy is shadowy, scattered and therefore more likely to survive and keep the war going for years. What the Supreme Court essentially did in Hamdan was to say to the president: Time's up. We gave you the customary half-decade of emergency powers, but that's as far as we go. From now on the emergency is over, at least judicially, and you're going to have to operate by peacetime rules.
Or, as Justice Anthony Kennedy, the new Sandra Day O'Connor, put it, Guantanamo (and by extension, war-on-terrorism) jurisprudence must henceforth be governed by "the customary operation of the Executive and Legislative Branches." This case may be "of extraordinary importance," but it is to be "resolved by ordinary rules."
All rise: The Supreme Court has decreed a return to normality. A lovely idea, except that al-Qaeda has other ideas. The war does go on. One can sympathize with the court's desire for a Harding-like restoration to normalcy. But the robed eminences are premature. And even if they weren't, they really didn't have to issue a ruling this bad.
They declared illegal President Bush's military tribunals for the likes of Salim Ahmed Hamdan, Osama bin Laden's driver and bodyguard. First, because they were not established in accordance with congressional authority. And, second, because they violated the Geneva Conventions.
The first rationale is an odd but fixable misreading of congressional intent. The second is a grotesque and unfixable misreading of the Geneva Conventions.
The court feels that the president slighted Congress by unilaterally establishing military commissions. What is odd about this solicitousness for the powers of the legislature is that Congress, which is populated entirely by adults, had explicitly told the judiciary just six months ago that when it comes to Guantanamo prisoners, the judiciary should bug off.
The Detainee Treatment Act in December 2005 not only implicitly endorsed what the administration was doing with prisoners, it explicitly told the judiciary to leave the issue to Congress and the president to resolve, as they have historically.
The court's wanton overriding of Congress and the president is another in a long string of breathtaking acts of judicial arrogance. But it is fixable. The Republican leadership of the Senate responded to the court's highhandedness by immediately embarking on writing legislation to establish military tribunals.
The unfixable part of the Hamdan ruling, however, is the court's reading of Common Article 3 of the Geneva Conventions. The Geneva Conventions, which were designed to protect civilian populations and those combatants who respect them, were never intended to apply to unlawful combatants, terrorists of the al-Qaeda kind. The court tortures the reading of Common Article 3 to confer upon Hamdan and by extension the man for whom he rode shotgun, bin Laden the kind of elaborate legal protections that one expects from "civilized peoples."
This infinitely elastic concept will allow courts to usurp from Congress and the president the authority to fashion the procedures for military tribunals an arrogation that mocks the court's previously expressed solicitousness for congressional authority.
But no matter. Logic has little place here. The court has decreed: There is no war or we will pretend so and henceforth it shall be conducted by the court. G-d save the United States. (This honorable court can fend for itself.)
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