A Really Bad Read on a Really Big Ruling

Want to read the lamest column yet written about the Supreme Court's recent decision to limit an extension of presidential power in the war on terror? Here it is. Written by the eternally angry Charles Krauthammer, the op-ed over and over again mischaracterizes what the Court's majority did and did not do in declaring unconstitutional the White House's current plan to prosecute Guantanamo Bay detainees.

Here are just a few examples. Krauthammer starts by saying this: "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 power is over, at least judicially and you're going to have to operate by peacetime rules." That's just plain wrong. The Supreme Court did nothing of the sort-- "essentially" or not.

All the Court's majority said to the President was that the White House's plan to prosecute the Gitmo detainees ran afoul of the Constitution, Congressional authority, the Uniform Code of Military Justice, and the Geneva Convention. The Justices did not "tell" the President that he could not ultimately prosecute the men through the use of military commissions-- they just told him that the method he had chosen to do so was illegal. Justice Stephen Breyer, one of the five votes against the President, practically begged the White House to go to Congress to get the proper authority to accomplish their objectives down in Cuba. Judge for yourself: do you consider that a statement by the Court telling the White House "Time's up"?

Next, Krauthammer wrote: "All rise: The Supreme Court has decreed a return to normality" by resolving the case using 'ordinary rules.'" Krauthammer here is referring to Justice Anthony Kennedy's reliance upon "ordinary rules of statutory construction" to thwart Congress' effort last year to thwart judicial review of the arguments made by the detainees. Judge for yourself. Would you rather have the Justices employ well-settled rules and standards that have served the Court well for hundreds of years? Or would you rather have the Justices change the rules because the President demands it? Meanwhile, nowhere in the ruling do any of the Justices declare any sort of "return to normality."

There is more. Krauthammer ends by writing: "Logic has no place here. The court has decreed: There is no war-- or we will pretend so-- and henceforth it shall be conducted by the court." This is nonsense. The Justices in the majority simply told the President that he did not have the legal authority to expand his power the way he had wanted to; that he could not prevent the detainees from having certain fundamental due process rights during their military trials. And then the Court invited the other two branches to fix the legal problems it had identified. Judge for yourself. Do you see in any of that a cry by the Court that "there is no war"?

The Gitmo ruling last month does raise some serious questions about how the legal war on terror will proceed against detainees. To the extent the ruling implicates the Geneva Conventions, for example, it could generate a lot more litigation down the road, especially if the White House insists on keeping alive the option of engaging in torture or other dubious forms of intelligence-gathering methods. And the Justices still did not give the Congress or the White House a firm idea of which procedures are required to satisfy the constitutional problems the Court found with the existing military procedures. So the ruling, like every other ruling, was not perfect. But it sure wasn't "grotesque," as Krauthammer concluded. Judge for yourself.

By Andrew Cohen |  July 10, 2006; 1:45 PM ET
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Military tribunals, processions, hearings, etc. that wish to adhere to Geneva convention rules must provide defendants that are SIGNITORY MEMBERS (military personnel of a legitimate nation / state) of the convention in question. The same concept applies to the US Constitution and its related criminal / civil hearings in that court (if you're not a US citizen then you are not protected in any sense under the US Constitution).

Posted by: Jon | July 10, 2006 02:27 PM

Jon, the Supreme Court has ruled that Constitutional protections apply to all U.S. "persons," not just citizens. The term "U.S. person" includes also non-citizen residents. For instance, the Miranda warnings, initially understood as an extension of the Fifth Amendment protection against self-incrimination, must be given to arrested people about to be questioned, without distinction of nationality status.

As for the Geneva Conventions, both Iraq and Afghanistan are signatory parties, so their civilian are protected by the conventions (non-military prisoners are to be considered civilians until a court decides otherwise). Al-Qaeda, of course, can't possibly be a party to the Conventions (not that it would want to), because it is not a sovereign state.

Posted by: WDC | July 11, 2006 10:02 AM

And, therefore, WDC, its members are not protected by the convention.

The proposition that the conflict is not "international" within the meaning of common Article III" is such a stretch that, given the results, merits the label of "grotesque."

Judge for myself? I have.

Posted by: appell8 | July 11, 2006 11:06 PM

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