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July 11, 2006
Court Endangers Nation's Ability to Wage War
By Tom AshcraftWar is the opposite of law. War settles disputes through might. The chief instruments of war are violence and destruction until an enemy is laid waste or subdued.
With law, peace is assumed. There's not much point in arguing a case in court if on the way home your opponent is going to shoot you. Based on facts established by evidence, law proceeds by reason and logic with the aim of establishing justice among contending parties. In law, right takes precedence over might.
Having a rule of law does not guarantee peace inside a country, but it can help if most elements of society believe that justice is done by the working of their laws. As to protecting a country from external attack, the rule of law does little or nothing. This is particularly true if the external enemy doesn't give a whit for law or justice.
The above propositions are conventional wisdom. But such wisdom has apparently escaped a majority of the U.S. Supreme Court. Not content to exercise only the judicial power conferred by Article III of the Constitution, they fancy the legislative and executive powers of Articles I and II as well. The important, wrongly decided case of Hamdan v. Rumsfeld recently proved this point, though not for the first time.
Groundwork was laid in 2004 in Rasul v. Bush. The justices ruled 6-3 that enemy combatants, captured by U.S. forces in Afghanistan after 9-11 and held at the Guantanamo naval base, could seek habeas corpus relief in U.S. courts. Overturning a 1950 precedent in which the Supreme Court held it had no power over "an alien enemy who, at no relevant time and in no stage of his captivity, has been within" the country's territorial jurisdiction, the 2004 court foolishly said the Guantanamo detainees were free to sue. And guess what? They have.
Detainee takes U.S. to court
One was Salim Ahmed Hamdan. Captured in Afghanistan in late 2001, Hamdan was accused of being Osama bin Laden's personal driver. He was also alleged to have served as bin Laden's bodyguard and helped deliver weapons to al-Qaida. After filing a habeas petition in D.C. federal court, Hamdan was formally charged with conspiracy to commit attacks on civilians, murder, destruction of property and terrorism. He was to have been tried by a military commission at Guantanamo consisting of three officers of the rank of colonel.In a series of complicated decisions, the district court first held that Hamdan could not be tried by the military tribunal. The appeals court reversed, with then Circuit Judge John Roberts agreeing. (Now chief justice, he did not participate at the Supreme Court because his opinion was under review.)
When the Supreme Court decided 5-3 in Hamdan's favor, the three dissenting justices followed the pattern in Rasul: Scalia, Thomas and Alito (in place of deceased Chief Justice Rehnquist). The majority held that Hamdan could not be tried by a military commission without specific congressional legislation, though he could be tried under the Uniform Code of Military Justice. Further, the court said that trial by the military commission would violate part of the 1949 Geneva Convention.
Scalia's dissent focused on jurisdiction. Pointing out that the 2005 Detainee Treatment Act specifically said "no court, justice, or judge" shall have jurisdiction to consider Guantanamo habeas applications, Scalia asserted that the judiciary was obliged by statute to stay out of the case, or should do so as a matter of discretion. Further, he noted federal court involvement "brings the Judicial Branch into direct conflict with the Executive in an area where the Executive's competence is maximal and ours is virtually nonexistent."
What deters our enemies?
It would be nice if the dangerous world outside our borders was deterred from harming us based on our rule of law, Constitution, federal system and process of litigation. In such a utopia, Hamdan would be a landmark decision.
Unfortunately many of our enemies are deterred only by force of arms. In that real world, Hamdan represents a profound confusion by the justices both over their role in our constitutional system and between war and law.
If we are to preserve law, we sometimes must have war. When we go to war, the founding fathers wisely made the president commander in chief and gave him flexibility to carry out the details, while Congress has the ultimate power to authorize and pay for war.
The Supreme Court cannot win a war, but in overreaching it can raise the risk that we lose one.
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