Friday, June 30, 2006

Worst Supreme Court Decision Ever?

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.

6 comments:

enthymeme ∙ said...

This is off topic but isn't it odd that just as the launch window for an Israeli pre-emptive strike on clandestine Iranian nuclear facilities is closing, orders come from Damascus to escalate the situation in Gaza?

A ploy, perhaps, to get Israel to exhaust her diplomatic and political capital on one crisis so as to reduce political latitude in the other (a pre-emptive strike on Tehran's nuclear facilities)?

Speculative, I know. But is it possible Syria might be acting in concert with Iran? One would think that Baathist-Sunni Syria themselves would fear and never countenance a nuclear-armed Shiite Iran, but I am not so sure now.

cynical joe said...

1) I think people on the right are exagerating the effect of the latest SC decision and,

2) Even if there is a dimunition in the President's powers there are simple legislative remedies.

But as to 1) My feeling is that you can have a tribunal or a court or whatever, you can hold people in Guantanamo or Timbuktu, but at the bottom of it all, you need Military oversight, Congressional oversight and some kind of legal process available to 'alleged' combatants. Hey, if there guilty lock 'em away, there are plenty of people rotting away in prisons, but in the fog of war, we've already seen that a lot of people can get caught up due to error or deliberate misinformation. There are still people at Guantanamo that should have never been captured, we're framed, but won't be released because someone is covering their ass and doesn't want to admit to a mistake. Their has to be some legal recourse so that the American military can't just simply disappear people on the President's say so. I'm not saying they've done that, but their has to be a process, and short of inventing some new one (which, if warranted, please bring it forward), the default decision should be to simply honor the Geneva conventions. Yeah, I know, terrorists aren't signatories, I'm just saying its a perfectly clear set of protocols that we can use till we develop something else.

Ikez said...

This is really disgusting and if this nonsense continues our country will destruct from the inside.

How this situation ever came down to the Supreme Court being involved in how to run wars is far beyond my comprehension, I just know that they are the last branch I want having anything to do with wartime decisions.

Wanderlust said...

Joe, your argument completely misses the points spook86 made in this post, IMHO.

The crux of the counter-argument you make here is that there are "alleged" combatants in the GWoT.

Note your use of the word "alleged", to suggest that GWoT is a legal action, rather than a military one.

You make the following statement: There are still people at Guantanamo that should have never been captured, we're framed, but won't be released because someone is covering their ass and doesn't want to admit to a mistake.

How do you know this? Where is your proof? Or are you simply making an assumption?

And then you follow it with this one: Their has to be some legal recourse so that the American military can't just simply disappear people on the President's say so.

Use your head, man: if someone wanted to "disappear" someone (lovely syntax there, btw), why on earth would that person be held at Gitmo? The International Red Cross, other NGO's, and Congressional delegations have been all over that place in the past three years.

Your counter-argument suggests that you simply do not grasp the basics of a post-9/11 combat operation, especially one in in the Middle East Theatre of Operations. You fail to understand that the islamofascists have demonstrated on numerous occasions that they will operate a covert war, disguising themselves as civilians, and either hide behind, or use, women and children to carry out missions against Coalition troops. If you think I am making that information up, just have a look at the numerous milblogs written by soldiers deployed in OEF or OIF. Also review numerous news reports that suggest "enemy combatants" held at Gitmo fear being made to leave there more than anything else that could befall them.

You also forget that the Geneva Convention allows for non-uniformed soldiers to be considered as "spies". The GC and US law has never been too kind to spies.

If you are suggesting that in urban warfare, innocent civilians can get caught up with the bad guys, then yes, you are right. That is a consequence of war. As such, it should prompt the civilians to rid themselves of the combatants hiding in their midst - as, incidentally, is the case now in Iraq more than ever. Without that consequence, the civilians have no reason to cooperate with Coalition forces (which, btw, helped us get Zarkawi and so many al-Queda leaders like him over the past couple years).

And if you suggest that my argument above is the very reason that we shouldn't be there, well, I will end this comment by saying that I just watched a documentary on Nazi Germany leading up to WWII that was authored by the Beeb. The historian through this documentary noted repeatedly that the Nazis broke treaties and threatened countries that Britain and France were under treaty to protect - and that up to 1938, Hitler's military machine was still weak enough to have been defeated on an open battlefield.

But, as the historian noted: Britain and France did nothing.

Result? Hitler openly bragged that those countries were "weak", and that they would not act. Hitler advanced, the diplomats conferred, and Hitler gained more and more ground, resources, and stature.

Had Britain and France acted to enforce treaty obligations at that time, his threat could have been contained. But they did not, and the rest is history.

Don't worry, though: chances are good that in two years, someone on the Left just might get the White House, and if their common sense fails them, undo all the gains made in the GWoT. I will speculate that it's not a rush to suggest that such a fundamental change in strategy will result in something major taking place within the following three to five years.

If you think that sounds crazy, just ask yourself: why did Chirac feel the need to rattle the nuclear saber a couple months ago?

cynical joe said...

Oh, I wrote a long reply but it didn't post, I'll try again

cynical joe said...

Oh, I wrote a long reply but it didn't post, I'll try again