The Discerning Texan

Congress and the Court are systematically stripping the presidency of war-making powers. Congress demands that the president get court approval before intercepting enemy communications (we call that intelligence gathering) and the Court demands that the president get statutory support from Congress before he can use military tribunals to try terrorists.

And yet, neither Congress nor the Supreme Court have any explicit constitutional authority to make these decisions. Congress can cut-off funding for the war or any aspect of it, which it has not; and the judiciary's only role in these matters is to defer to the president, who has explicit and broad authority under the Constitution as the commander-in-chief.

Today, the Court has taken a giant new step in its usurpation of explicit presidential authority. The battle against terrorism is being fought as much in our courtrooms as on the field in Iraq and other places — where the likes of the ACLU and activist judges will set policy in contravention of the Constitution.

Congress and the courts are conferring rights and privileges on terrorists. They are conferring constitutonal protections on the enemy. They are granting the enemy jurisdiction in our civilian courts. They are extending the Geneva Conventions to an enemy that is specifically excluded from those protections.

I wrote an entire book on the subject of the Supreme Court, and how it's destroying America. And that's exactly what it's doing. In 2004, the Court said, in two cases — Rasul and Hamdi — for the first time in our history, that unlawful enemy combatants — that is, terrorists who themselves refuse to comply with the rules of law — have a legal right to access to our federal civilian courts and can file habeas corpus petitions there. That means they can ask a federal judge to determine whether their detention is proper. In the past, the Supreme Court refused to grant such access to our courts. And as I wrote at the time, this is a slippery slope. Having broken down the wall of restraint that had traditionally been recognized by the Court, there appears to be no limit anymore on the judiciary's role in second-guessing the commander-in-chief. And that's exactly what happened today.

The Supreme Court said today that in exercising his constitutional authority, the president had to comply with congressional statutory mandates. I don't believe the establishment of these tribunals violate any statute, but more to the point, since when does a statute trump the Constitution? Since never.

The Supreme Court ruled 5-3 yesterday that the military tribunals used to try prisoners at Guantanamo Bay were both unconstitutional and illegal under the Geneva Conventions. The court made some sense with its constitutional argument, but none at all when it applied the Geneva Conventions to al-Qaida.

The court declared that Guantanamo Bay detainees could be tried in military tribunals, but only in ones explicity authorized by Congress. President Bush could work with Congress to create a tribunal that would pass Supreme Court review, except that the court seems to have ruled that out by applying the Geneva Conventions to Guantanamo detainees. And therein lies the real importance of this ruling.

To be classified as a prisoner of war protected by the conventions, combatants have to meet certain criteria, which include “having a fixed distinctive sign recognizable at a distance” and “conducting their operations in accordance with the laws and customs of war.”

The Geneva Conventions intentionally exclude people who operate outside the rules of warfare, which includes al-Qaida terrorists. Yet the court applied the conventions to al-Qaida operative Salim Ahmed Hamdan anyway, arguing absurdly that a provision written to cover civil wars — armed conflicts “not of an international character” — somehow covered the War on Terror, plainly a conflict of an international character.

If the Geneva Conventions apply to captured terrorists, as the court ruled, then our ability to track these enemies is severely handicapped, as we will be unable to use coercive measures to make them talk. We are not for torture. But in a war against a barbaric enemy that ignores the rules of war, coercive interrogation techinques are justified.

Also, by offering their protections only to combatants who abide by the rules of war, the conventions are supposed to encourage non-conventional combatants to follow the rules. The court, by extending convention protections to terrorists who routinely emerge from the shadows to slaughter innocent civilians before slinking back to their caves, has eliminated whatever incentive to civilized behavior the conventions might have offered.

Nice job guys--if EVER there were an argument for "Strict Constitutionalists" on the court, this is it. Last year I highlighted these prophetic words of Antonin Scalia; and if this President and future Presidents continue to fail to use this standard in naming Justices to the Court, this Republic will eventually cease to exist as the brilliant experiment intended by the Founders.

This decision is beyond outrageous--which of course makes this ringing endorsement of it by the seditious New York Times that much more sickening.

UPDATE: Spook86 may be right when he calls this the "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.

(I too highly recommend the aforementioned OpinionJournal piece.)