Strengthening Constitutional Self-Government

No Left Turns

Hamdan, the Court, and the political branches

Distracted by an Independence Day that included a visit to this historic site, I was late in getting this week’s column to the good people at TAE Online, who wasted no time posting it. Here’s the opening paragraph:

One of the most striking features of last week’s Supreme Court Hamdan decision was the way in which Justice John Paul Stevens, writing for the plurality, sought always to understand the current global war on terror in the light of rules developed in and designed for more conventional conflicts. This was especially clear in two instances: when he challenged the very use of a military commission to try Salim Ahmed Hamdan, and when he insisted upon the irregularity of the commission’s procedures.

And here’s the conclusion:

One good thing may result from the Court’s willingness to exceed the bounds of its competence and tread on the toes of the politically responsible branches. Everyone seems to agree that Congress now has to step up to the plate and legislate for the military commissions that are supposed to try alleged al-Qaeda members. Given the manner in which national security seems to be the Bush administration’s political and substantive strong suit, the resulting legislation may establish procedures that look a lot like those already in place. On the other hand, the Court’s repudiation of those procedures in Hamdan provides some ammunition to those who have a conventional or law-enforcement view of the global war on terror, which is (I’m sure) what they hoped when they succeeded in passing the buck in the first place.

If the Bush administration (as it ought) chooses vigorously to fight this battle, it can accomplish two things at least. First, its judgments about how to try detainees will in the end be vindicated, thus enabling us to “wage war successfully.” And second, the two politically responsible branches will have repudiated the judgments of Justice Stevens and his colleagues, which would have the salutary effect of reminding the Court of its mere equality with, and the deference it owes to, them.

Both results are worth the expenditure of a great deal of political capital. Both would be a substantial contribution to President Bush’s legacy of not only defending the nation but also defending the appropriate balance between the three branches of government. In connection with the latter legacy, the only thing that could improve upon it would be the appointment of yet another judicially modest nominee to replace Justice Stevens, who has here shown his imperious impatience with the limits of his office.

There’s more in between.

Update: Robert Alt details the liberal overreaction to Hamdan, which may lead one to doubt that cooler heads will prevail before November. A taste:

The hyperbolic reaction of the Left seems particularly ill-advised given that the Hamdan opinion will have little lasting practical effect: Congress has already made clear that it intends to grant the president the authority to utilize some kind of military commission. Despite several prominent Democrats supporting some form of legislation, there is caustic liberal sentiment against granting the president any such option. One of the first comments on the Daily Kos after Hamdan was issued summed up this position: "Democratics [sic] in Congress need to be told in no uncertain terms that they shall not vote to allow these tribunals. We need to put the electoral gun to their heads and make sure they march in the right direction on this." Of course, these orders would march the Democrats right out of Congress.

Read the whole thing.   

Update #2: Brett Marston disagrees with me. Here’s my quickie response:

I don’t think and didn’t say that adjudication is simply the application fo existing rules, though I do think that judges are, and ought to be, more closely bound by existing rules (in other words, less creative or innovative) than are the politically responsible branches. The rule of law, which is limited in certain extreme instances, requires that of them.

I also don’t argue that Congree should simply defer to the executive, though I do think that the executive’s responsibility for the conduct of the war deserves some repect and tends to give it the upper hand in any dispute with Congress.

Finally, I nowhere in the piece make the case for anything that could be called torture. My only concern is how, if at all, we’re going to try members of al Qaeda, given the fact that their respect for our version of the rule of law is at best tactical. (In other words, they’re all over the writ of habeas corpus, but not too fastidious about killing innocents.) I don’t regard battlefields as crime scenes, don’t regard soldiers and intelligence agents as detectives, and think that any rules for holding these folks legally accountable have to be fashioned with these and other such considerations in mind. I think the Bush Administration (leaving aside for a moment interrogation techniques, which I think are a separate issue with which Congress has already dealt in the DTA) has fashioned a plausible set of rules for trying these guys, if in fact they are to be tried. Members of Congress might disagree, and something will I hope be fashioned in the aftermath of Hamdan. If the only plausible option is trying them in accordance with the rules that typically apply to courts martial and/or trials in civilian courts, then I’m not sure how we can assemble to sort of evidence that those venues require. The Bush Administration and its successors would, it seems to me, to be left then with two options (consistent with our national security interests): locking these guys up for the indefinite duration of the GWOT (freeing them only at discretion, with no sort of regular process) or making sure there are no captives. I’d prefer some sort of commission route, so long as it takes into account the exigencies of the GWOT, over either of these two options.

Brett’s principal concern is with the use of evidence tainted by the coercive means through which it was acquired. The appropriate arena in which to make that argument is, I think, in Congress. My principal concern is in fashioning an effective and legitimate process for trying the detainees, which at this point also requires legislation. Let’s hope our legislators get it right.

Discussions - 10 Comments

While I hope you’re proven right, I’m pessimistic.

While the House will pass a bill, I suspect Senate Democrats will filibuster and they’ll get maximum "air cover" from their allies in the press, who’ll paint Hamdan as a constitutional (not statutory) issue and tell everyone the Republicans are trying to repeal the Bill of Rights. Whether the Republicans will have the megaphone - or the cajones to use it - to overcome this blitz is an open question.

Unfortunately, there seem to be a growing number of Republican officeholders who want the war on Islamofascism to just go away because it’s electorally inconvenient.

It’s all about getting one more vote on the Supreme Court. The five justices who make up the Hamdan majority cannot be educated, unless I’m missing something.

Elections, elections, elections ...

Unfortunately, there seem to be a growing number of Republican officeholders who want the war on Islamofascism to just go away because it’s electorally inconvenient.

Unfortunately, try as we might, I doubt the Islamofascists will allow us to forget them. The imperialist mentality is never quiet for long...if we slumber, they’ll just kill a few thousand more people to wake us up.

If the administration and Congressional Republicans do what they say they’re going to do (legislate the necessary changes to take account of the SC’s decision), the Senate Dems would insane to filibuster. They would set themselves up going into the fall elections as the defender of Al Qaeda (fairly or not) and would make the election turn on how we ought to fight the Islamists. That strategy didn’t work out so well in 2002 or 2004. Plus, it would put most of the major Dem presidential candidates on the spot. Nope, if they’re at all smart, they’ll cooperate and get this through the Congress quickly.

Mr. Simpson -

They would set themselves up going into the fall elections as the defender of Al Qaeda . . .

But see . . . a lot of us view their actions (and the recent actions of the Supreme Court)as defending human rights. I would hope that the Democrats in the Senate and House would not be willing to compromise their positions on such an important issue in order to simply win an election. That’s probably enormously idealistic . . . *sigh*

The White House will dodge this battle, as it has the battle with Clinton holdovers, as it has the battle for control of the the Washington establishment, the State Department, CIA, and most notedly, the battle with the New York Times.

This administration is running scared. GW just wants his tenure to end. Look at his recent comments about that lunatic in North Korea. Whatever appetite that GW might have had to take on America’s enemies, at home or abroad, is gone, gone with the wind.

Robert Alt is spot on. Bin Laden’s arms-dealing bodyguard is one of "the good guys"? Then the Democrats wonder why know one trusts them on national defense ...

"fastidious concerns about tainting or adulteration"

I assume that this is euphemism for evidence obtained through coercive, humiliating, a degrading interrogations.

Every conflict looks knew. What differentiates countries that care about the rule of law from those that don’t, is that in the former, we’re not enthralled by the "power of the exception."


I actually wasn’t thinking about that when I wrote those lines, but rather about the massive differences between a battlefield and a crime scene.

What’s more, it seems to me that the Constitution is written to give both the rule of law and the power of the exception their due. And the "common law of war" evolves, not just by means of legislation and judicial decisions, but also by the actions of executives, assuming that they are accepted and, implicitly at least, endorsed. Congress cannot now avoid debating in some detail how we’re going to conduct ourselves with respect to detainees. Members can’t, and shouldn’t, hide behind the robes.

Wow, almost as long as the case. This case doesn’t change the game too much for the current case and war, but it is a very bad and dangerous precedent. The Court continues to interpret INTERNATIONAL LAW and use it against the American Constitution, and now they are applying this to the Military and Executive. This is crap and almost worth a revolt or two...

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