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Hamdan v. Rumsfeld: Common Sense at War

By Ronald A. Cass

Liberty may have been the traditional casualty of war, but common sense is its new colleague. The Supreme Court, trying hard on the anniversary of last term's Kelo decision to find a suitable sequel, performed a rare triple loop in Hamdan v. Rumsfeld. It found jurisdiction in the face of a statute directly taking jurisdiction away from the Court. It second-guessed the President on the need for particular security features in trials of suspected al Qaeda terrorists. And it gave hope to One-World-ers by leaning on international common law to interpret U.S. federal law. If that weren't enough, the (left, lefter, and far left) turns were executed in the course of giving a court victory to Osama bin Laden's driver. What a perfect way to end the term!

The case challenged the Bush Administration's plan to use military tribunals to try Guantanamo detainees as enemy combatants who are neither within the criminal law and due process protections of the U.S. Constitution nor within the protections afforded prisoners of war by the Geneva Conventions. The Administration has been assiduously trying to prevent al Qaeda terrorists from learning what it knows and doesn't know about their operations - an effort opposed by The New York Times, the left side of the Democratic Party, and most of France. Its plans for trial by military commission and its detention at Guantanamo of al Qaeda suspects captured outside the United States are part and parcel of that effort.

The five-justice majority of the Supreme Court that decided the Hamdan case yesterday showed great interest in demonstrating their commitment to upholding constitutional protections and protecting international human rights, both admirable instincts in many settings. They showed less appreciation for the fact that Americans are threatened, and thousands of innocent Americans were killed by brutal thugs - the sort who behead civilians, film it as sport, and post the video on the Internet. And the justices showed no appreciation for the fact that Congress and the President might well know more than they do about the security needs of the United States.

Of course, the justices wrote a careful, precedent-laden, critically analyzed decision, well within the bounds of ordinary judicial craftsmanship - just as they did in Kelo. The proper criticism of their decision is not that it is politically inspired, not that it boldly ignores the law, and not that it is a decision that is utterly without support (though all these critiques may well come from the right). Instead, the proper criticism is that the decision is simply wrong, just as Kelo was, and will have consequences that no sensible American should applaud.

The first misstep was in finding jurisdiction at all. When Congress passed the Detainee Treatment Act of 2005, it included a provision saying that "no court, justice, or judge" has jurisdiction to hear applications for habeas corpus from any prisoner detained at Guantanamo. The Act also provides, in another provision, that pending challenges to decisions of military commissions on matters such as the detainee's status could not be heard except by the U.S. Court of Appeals for the D.C. Circuit.

The five-justice majority - taking a page from the two-plus-two-equals-five school of new math - read the two provisions together and concluded that it could hear a pending habeas petition. Small wonder Justice Scalia, in dissent, seemed almost apoplectic over the majority's reasoning. The only sad part is that his dissent didn't come complete with the appropriate gestures.

The justices clearly had something big to say on the military tribunal issue and didn't want to have Congress pull the rug out from under them. Fortunately, what they actually said wasn't as big as the headlines suggested. They didn't say anything about the legality of the detentions at Guantanamo, or the treatment of the prisoners, or tell the President he had no authority to set up military commissions no matter what.

But they did take shots at the President, the Congress, and common sense in an opinion that has more twists and turns than one of John Kerry's speeches - or a run down the slopes of Davos.

Under the law passed by Congress in 2005, the President is authorized to alter the design of military tribunals if he deems it impracticable to offer the procedures ordinarily applied in other trials. That is exactly what the President did here.

The President clearly said that Guantanamo terror suspects could not be given the same protections as citizens charged with criminal acts. And even Justice Stevens said the Court should defer to the President on that.

But, said the Court, the President did not make "a similar official determination that it is impractical to apply the usual rules for courts-martial." Actually, he did. But he didn't utter the magic incantation, the Harry Potter phrase that would make the tribunals fly.

As Justice Stevens observed "the only reason offered in support of that determination is the danger posed by international terrorism." Those whose loved ones died at the hands of al Qaeda terrorists may be surprised that isn't enough - as might anyone who understands that these are trials for terrorism, not trespassing. But the justices said it is "not evident to us why" concerns over terrorism justify changing the rules.

So we come to the last loop in the Court's triple jump - its reliance on international common law. The Court, interpreting the requirements of federal law, makes a critical observation, one no one would have expected a few short years ago: the military tribunals do not provide the sort of procedures "recognized as indispensable by civilized peoples."

There you have it. We can now turn to international common law to find out what our laws require. Who better than the Iraqis and North Koreans, Khaddafi's Libya, Mugabe's Zimbabwe and Chavez's Venezuela to tell us what our laws command? That's the Court's reading of the law. To make matters worse, by making Common Article 3 of the Geneva Conventions (the linchpin of this analysis) both legally enforceable and dependent on international common law, the Court has opened a door to criminal liability for American citizens, soldiers, and government officials on terms we cannot predict and would never approve.

The President may not have made perfect choices on the procedures used for these trials. He may not have perfectly balanced concerns over fair process with concerns over national security. But the President, not the Court, has expertise on this subject.

Justice Breyer's concurrence says that Congress didn't give the President a blank check to fight the war on terror. But the Constitution also doesn't give the justices a blank check to write the law. It especially doesn't give them a check drawn on a foreign bank.

Yesterday's decision may bring a smile to the faces of Bush-bashers. It should be as fleeting as the smiles with which developers greeted the justices' creativity in Kelo. Let's hope it's as easily corrected.

Ronald A. Cass is Chairman of the Center for the Rule of Law, Dean Emeritus of Boston University School of Law, and author of "The Rule of Law in America" (Johns Hopkins University Press).

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