The Madness of Hamdan

For decades presidents of both parties have failed to take action as the attacks on our way of life have grown ever more outrageous.  Presidential passivity makes the perpetrators bolder and more dangerous.  It also atrophies our capacity to change course and take effective action.

No, I'm not talking about terrorists this time.  I have the federal courts in mind.  The Supreme Court issued a decision yesterday in Hamdan v. Rumsfeld   which may have finally superceded Roe v. Wade as the most arrogant and unprincipled judicial assertion of power since Hammurabi promulgated his code.

The Court had no authority to hear the case, both because a statute clearly deprived it of jurisdiction and because the case presented questions no court is competent to address.  If the Court was going to ignore these trifling impediments and decide the case anyway it should have issued a laugh track instead of an opinion.  The case was utterly without merit.

Nonetheless the Court issued an opinion, a number of them in fact.  Five Justices agreed that the President of the United States does not have the power to constitute military tribunals for the purpose of trying terrorists for violating the laws of war.

The irony here is exquisite.

Article III of the Constitution leaves the definition of the Supreme Court's appellate jurisdiction up to Congress. In the Detainee Treatment Act of 2005 (DTA) Congress very clearly gave the Circuit Court for the District of Columbia Circuit exclusive jurisdiction over Hamdan's habeas corpus petition.  After the effective date of that statute the Supreme Court had no more authority to decide Hamdan's case than the Arizona Liquor Control Board or the World Court in The Hague.

And yet five Justices have the temerity to use that case as a vehicle for pronouncing that  the President is acting beyond his proper authority.  Forget the old joke about the parricidal orphan; we have a new definition of chutzpah. 

Justice Stevens writing for the Court goes through all kinds of gyrations trying to get around the clear language of section.  He breaks out all the tools of statutory analysis including legislative history and uses them to construct a long convoluted argument which is entirely beside the point.  Those tools are for discerning meaning where the legislature has been obscure.  When Congress makes itself perfectly clear, those tools are useless, and the DTA is perfectly clear.

Justice Stevens' jurisdictional argument is like a fumbled conjuring trick.  It is painfully transparent.  There is no plausible justification for the Court to reach the merits in Hamdan.  Justice Stevens could have reduced one whole section of his opinion to six words:  'We don't need no stinking jurisdiction.' 

But let's forget about jurisdiction for the moment.  What about the merits?  Does the President need a permission slip from Congress before he can set up tribunals to try and punish people who wage war against us without regard to any legal or moral restraints?  To ask the question clearly is to answer it.

It isn't as if the President can rely on civilian courts to try terrorists.  The circus that swirled around Zacharias Moussaoui for years should be proof enough of that.

Either five members of the Supreme Court can't parse the phrase 'Commander in Chief' or they haven't grasped that we are at war.  In wartime, finding, killing, capturing, confining and punishing the enemy is the President's job, his core function.  Congress has only a peripheral role in running a war.  It gets to decide whether we are going to engage in hostilities and it gets to appropriate the funds to do so. 

The judiciary has no proper function in the conduct of a war at all.

The constitutional scheme for running a war is simple —— the President leads, Congress follows and the judiciary gets out of the way.  Any other scheme would be suicidal lunacy.  If you want your children and grandchildren to reach adulthood, you don't want judges harassing the Commander in Chief.

Sixty years ago everyone understood this.  In connection with World War II the Supreme Court upheld the President's authority to intern thousands of American citizens of Japanese descent on the off chance that some of them might be a security risk.  President Roosevelt made a bad decision in that instance but, as the Court properly recognized, it was his decision to make.  It also upheld the President's power to convene a military commission that sentenced eight German spies to death. 

This was before the Court got drunk on its own power and lost the ability to steer between the constitutional lines.

Our history gives us an instructive example of judicial meddling in the conduct of a war. The Supreme Court tried to get in President Lincoln's face during the Civil War.  In particular, Chief Justice Roger Taney took a dim view of the President's decision to suspend the writ of habeas corpus.  Justice Stevens and his cohorts would do well to remember that disagreement.  Lincoln politely told the Taney Court to pound sand.  And yet, astoundingly, he is not widely remembered as a tyrant.

What is to be done about the Hamdan decision?  It can be reversed by a statute redundantly granting the President the power to act as Commander in Chief.  Senator Specter has already proposed such a statute.  But Congress is cumbersome.  It will probably quarrel about the limitations and qualifications the statute should contain.  It may pass something useless and it may pass nothing at all. 

After he gives Congress a decent interval in which to act, President Bush should follow Lincoln's example.  He should just start trying terrorists before military commissions.  When he is accused of lawlessness he should explain that the Supreme Court's decision in Hamdan is not law because the Court lacked jurisdiction to make it.  He should go on to say that, with or without jurisdiction, the Court can't put arbitrary limits on his war powers.  The power to 'say what the law is' doesn't justify boldly taking the law where it has no business going.

He could end by paraphrasing President Jackson:  'Justice Stevens has made his decision.  Now let him enforce it.'

J. Peter Mulhern is a lawyer in the Washington, DC area.