Confusion on the High Court

by on June 30th, 2006

The Supreme Court majority in the Hamdan case unquestionably skewed legal precedent and made something of a mockery of the Executive’s authority during times of war.

Writing for the majority, Justice John Paul Stevens noted:

“We conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate the international agreement on the treatment of prisoners of war and U.S. military laws.”

Previous Court decisions have dealt with the right to a writ of habeas corpus, which has been enshrined in U.S. Constitutional law as a statute dating to the Judiciary Act of 1789. As such, this law prevailed during our nation’s entire life, but under circumstances that were diametrical in nature to our post-9/11 environment.

Indeed, the Supreme Court’s 2004 decision in Rasul v Bush turned, in large measure, on whether habeas law obtained the same legal bearing when applied to those incarcerated at Guantanamo Bay, because although the U.S. exercises “plenary and exclusive jurisdiction” there, it does not enjoy “ultimate sovereignty.” In short, had President Bush ordered the enemy combatants held in sovereign U.S. territory this might well have been a legally moot issue.

Beyond that, Congress passed a law in December 2005 proscribing judicial interference in Executive-authorized military trials. The five jurists who voted in the affirmative in this case effectively dismissed–or, more candidly–trampled on, Congressional authority.

As a final judicial insult, in the Hamdan case the Court included in their decision elements of what has been euphemistically called “international law,” a development that must have former President Clinton smiling. Readers who have followed the judicial charades of the International Criminal Court can attest to the Looking Glass quality of its perverse procedural workings.

Besides these distortions of law, there is, indeed, a supreme confusion at work here, at the heart of which is the Court’s fundamental unwillingness to take into account the unique nature of these detainees. Rather, they noted in their 2004 decision that the detainees are not nationals of countries at war with the U.S., that the detainees deny they have engaged in or plotted actions against the U.S., and, that they have not been afforded access to a tribunal.

The truth, as known to all but these five jurists, is that in our age of asymmetrical warfare, such prisoners are stateless soldiers with no uniform, who always swear their denial of any illegal activity, but who were captured during military hostilities.

It’s also inarguable that the Court majority in this case reflects the ill-advised and unfounded predilection to confuse wartime combatants with those in our criminal justice system. We simply can’t apply the same legal paradigm to military prisoners–much less stateless terrorists–as those charged under our criminal justice system.

The decision to superimpose our presumably enlightened sensibilities on circumstances at odds with historically valid legal precedents is an understandable if pernicious reflex.

From President Washington through Presidents Lincoln and FDR, the Executive’s decision to enact military commissions, sometimes sanctioned by Congress, but not always, has never been seriously questioned. Yet the majority in these cases found enough legal wiggle room to wreak legal–and critically–national security havoc, at a time when our Republic is waging war with a baleful enemy. It’s nothing short of astounding.

Mella is Founder and Editor of

Philip Mella