I'm not an attorney, nor a legal scholar, so I'm in unfamilar territory commenting on a Supreme Court decision. But the more I read about yesterday's ruling in the Hamdan v. Rumsfeld case, the more I'm convinced that the decision will (ultimately) rank among the worst ever made by the high court--on the same level as the Dred Scott decision, which tilted the legal balance of power in favor of slave holders (and helped precipitate the Civil War), and Plessy v. Ferguson, which helped institutionalized segregation in the United States.
At first blush, such comparison may seem a bit overwraught. Afterall, the Scott and Ferguson decisions denied basic rights to African-Americans, perpetuating inequality and racisim for decades. But, in its own right, Hamdan also sets justice on its ear. Over the course of a 167-page decision, Justice John Paul Stevens (who wrote the majority opinion), joined by Justices David Souter, Steven Breyer, Ruth Bader Ginsburg and Anthony Kennedy, manage to accomplish some rather amazing legal gymnastics. Among their feats of jurisprudence:
--Abandoning Legal Precedent. Yesterday's ruling conveniently ignores a Supreme Court ruling from World War II which upheld the legality of military tribunals for foreign combatants. In that case, Nazi spies caught infiltrating into the U.S. They were tried and sentenced to death by military courts.
--Awarding Geneva Convention Protections (Where None Existed). The convention was careful to limit its protection to combatants representing recognized governments and nation-states. Efforts to extend that protection have been routinely rejected by the signatories, and for good reason. Under that approach, persons affiliated with any seperatist, terrorist, or eco-terrorist group would be a potential POW, entitled to protection under the convention, and greatly increasing the legal, investigative and financial burden on nations abiding by the treaty.
--Undercuting the Authority of the Commander-in-Chief. As Justice Clarence Thomas noted in a stinging dissent, Hamdan effectively dilutes the chief executive's wartime powers--in a time of war.
--Circumventing the Foreign Policy Process. By conveying legal protection to "stateless" Al Qaida suspects, the Supreme Court (it could be argued) negotiated a treaty with a terrorist organization. So much for the President, and so much for Senate review and consent. If it's good enough for Justice Stevens and Osama bin Laden, it should be good enough for the Administration and the American people.
As the court's leading liberal, Justice Stevens (at the age of 86) probably sees his opinion as the capstone of a 30-year career on the court. We can only hope that future generations look back on Hamdan as a legal travesty, much as we view Dred Scott, or the "seperate but equal" doctrine of the Ferguson case.
OpinionJournal.com has some reassuring thoughts. But there is little doubt that Justice Stevens and Co. put the U.S. on a slippery legal slope, and created an opening for all sorts of potential judicial activism.