Thursday, June 29, 2006

"Justice Stevens has made his decision ...

... now let him enforce it."

That's what a real president presiding over a real polity that seriously understood that it was at war would say. Alas, the Gitmo decision will probably stand, and even before the sun was down tonight, Bush was saying he'd abide by the ruling and Republicans in DC were saying they'd provide legislation to authorize tribunals (why? For reasons I'll explain below.)

All that's strictly necessary to know how wrongheaded and destructive of US security this decision is is to look at who is praising it: The New York Times; The Washington Post; the ACLU; CAIR which wants to close Gitmo outright; The Nation; Human Rights Watch; Amnesty International.

Not exactly the people you'd want to have your back in an alley. They'd be more concerned about whether the guy attacking you was given a fair chance to back out of the fight, whether his daddy beat him or his mommy didn't love him enough 20 years ago, whether you landed one below the belt, and whether your beating him will piss off his friends. Exquisite moral neutrality is their stock-in-trade.

But the decision itself is awful, awful, awful. Here is Justice Kennedy, from the AP story:

"The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment."

Actually, this is exactly what this abominable decision to treat enemy soldiers as common criminals is NOT. Time-tested traditions have always used military tribunals in wartime — George Washington, Andrew Jackson, Abraham Lincoln and Franklin Roosevelt all used them; sometimes with Congress's OK, sometimes not. But never has it been American tradition that the Supreme Court gets to decide issues of the conduct of war and override the president's judgement. The true breathtaking arrogance of the decision lies in these tidbits from Kennedy's ruling.

● "The government has made no demonstration of practical need for these special rules and procedures."
● "These structural differences between the military commissions and courts-martial ... remove safeguards that are important to the fairness of the proceedings and the independence of the court."

The Bush administration had argued that because affording due process would require, among other things, require the revelation of classified information, of the identities of agents and turncoats. As Justice Scalia put it: "The principal opinion on the merits makes clear that it does not believe that the trials by military commission involve any 'military necessity' at all. ... This is quite at odds with the views on this subject expressed by our political branches." This decision may have been erroneous or poorly-thought-through, but it is fundamentally a decision for the political branches, particularly the president as commander-in-chief, to make. As James Yoo points out: "They replaced his wartime judgment and Congress' support with their own speculation that open trials would not run intelligence risks." That decision is above the justice's pay grade. Simply not theirs to make.

The very fact that Kennedy felt free to write the first-bulleted sentence is precisely the problem. And because he's a lawyer, trained to think about procedures in a stable polity where the rule of law reigns unquestionably, he doesn't realize that the second bullet unintentionally makes the administration's case. Military tribunals are not primarily designed for the civilian value of procedural due process. So even if Congress does authorize tribunals, the very logic of the decision is that they will more-closely resemble civilian trials or courts-martial. What Yoo rightly calls "the circus that was the trial of Zacharias Moussaoui" will be repeated 500 times over if these terror suspects are treated like burglary suspects or even murder suspects within a sovereign state. The whole point of sovereignty, the social contract and citizenship is that it they grant privileges, immunities and rights that cannot effectively exist in nature. And our relationship to illegal-combatant foreigners is at most natural, and so they are entitled to nothing under the law, only whatever grace or mercy may lead us to bestow.

There is now no excuse for not realizing that we are in a September 10 world. This decision is the latest symptom of the lawyerization of foreign policy ("Don't turn over Osama bin laden to us; we don't have enough evidence to get a conviction). Under the Supreme Court's logic, soldiers will have to read Miranda warnings or shout "Halt!" to enemy soldiers before they shoot them. And keep in mind that legitimate uniformed soldiers who can be counted on, for the most part, to fight by the Marquis of Queensberry rules, are entitled to far more under the laws of war than illegal combatants (as must be the case, in order to give incentive to fight by the Queensberry rules, lest they be turned into pious platitudes). A Washington Post columnist also revealed more than he intended with his very first words:

It seemed almost too much to hope for, but the Supreme Court finally called George W. Bush onto the carpet yesterday and asked him the obvious question: What part of "rule of law" do you not understand?

Now set aside the image of the justices calling the president "onto the carpet" as they they were the principal and he was some misbehaving student. More importantly: Mr. Robinson, what part of "war" do YOU not understand? The very fact that you (and some arrogant robed men) see this as a matter of the "rule of law" is the very problem. War does not take place under law; it is the antithesis of law, the ultimate acknowledgement that THESE differences cannot be settled peacefully, under law. That this case existed at all, much less was decided the way it was, is simply the taking of this philosophical error to its logical conclusion.


Donald R. McClarey said...

Victor, excellent site and great analysis of this wretched decision. It summarizes what has been wrong about so much supreme court jurisprudence over the past half century: ignoring the relevant law, complete contempt for prior case law, an arrogant judicial power grab and a barely disguised contempt for the Constitution. The dissents are the only portion of this judicial diktat that have any understanding of the role of a court under our Constitution. For those Catholics who take a rather tender view of the terrorists we are fighting, it should, although it will not, be food for thought that all the pro-abort justices constituted the majority in this absurd latest chapter of the Supreme Court's effort to treat the Constitution as a first draft to be revised at will by them.

Bukko_in_Australia said...

Hear hear! These activist judges on the Supreme Court have made their decision, now let them try to enforce it. Can five weak-kneed trial lawyers in black robes march into Guantanamo Bay and force the might of the righteous military to give these pagans so-called "fair trials" with "evidence" and allow them to "face their accusers in open court" the way the "U.S. Constitution" says? I'm sorry, but that was written more than 200 years ago, in a different world, when we were not fighting on behalf of Freedom and Democracy! To paraphrase another great wartime president, Josef Stalin said about the military impotence of the Pope: "How many divisions has the Supreme Court?"

Nictate said...

"I'm sorry, but that was written more than 200 years ago, in a different world, when we were not fighting on behalf of Freedom and Democracy!"

That's a pretty hilarious comment, seeing how that's exactly what the founding fathers were doing when they formed the American nation and wrote its declaration of independence and constitution.

I believe America has a moral obligation to honor the Geneva Convention--whether our enemies do or not. The whole world is watching us. Our coalition comrades are watching us. When we start running roughshod over the rules, it's all downhill from there. That whole "with great power comes great responsibility" thing.

Of course, it's a different world we live in today, but there's a reason the U.S. Constitution (no quote/unquote here), Supreme Court and our check and balances form of government has stood so solidly for so long. So far, it's been zealot-proof. Here's hoping that lasts.