Burning the Constitution in order to save it

Last week, in the case of Hamdan v. Rumsfeld, the U.S. Supreme Court repudiated President Bush's claim that he has inherent authority as commander-in-chief to do whatever is necessary to win the war on terror. At issue was the president's decision to hold terror suspects in Guantanamo Bay prison and eventually try them in front of military commissions, which would operate under rules he made up himself.

No, the court said, the president doesn't have the power to make it up as he goes along. Some kind of law must apply to the Guantanamo Bay detainees, either U.S. military law or the Third Geneva Convention or something written by Congress especially for the occasion. "The whim of the Executive," Justice John Paul Stevens wrote, will not do.

Three justices dissented from the majority decision, making the excellent point that Congress passed a law withdrawing the federal courts' jurisdiction in matters regarding the Guantanamo Bay detainees. The Detainee Treatment Act of 2005, Justice Scalia pointed out, says "no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba."

That means Congress has exercised its power under the U.S. Constitution -- Article III, Section 2 -- to make an exception to the courts' appellate jurisdiction. The Supreme Court may not like it, but the Framers gave Congress the power to exclude some things from the courts' oversight.

Justice Stevens wiggled around the limitation by contending that Congress didn't really mean it. He cited draft versions of the bill to support his interpretation.

This is another one of those cases where, if you like the result, you don't want to look too closely at the method used to reach it. If the Supreme Court disregards the Constitution in order to stop a president who is disregarding the Constitution, the Constitution has probably come out ahead.

The core problem here is that the war on terror is not really a war. Wars are fought between states with governments that control their militaries, governments that can sign peace treaties and make enforceable agreements. Prisoners of war picked up on the battlefield are returned to their countries when the war is over. Terrorists, on the other hand, are a threat for as long as they live.

Terror is not a state with a government. Terror is a tactic, not an enemy. A war on terror is like a war on ambushes -- we're trying to guess the intentions of individuals who haven't yet done anything. Even if we guess right, it's not possible under any rational system of justice to put people on trial for something they haven't yet done.

The goal of pre-empting terror carries its own dangers. We are embroiled in a military action in Iraq, with no clear enemy and no clear military goal, because we believed -- wrongly -- that there were weapons of mass destruction in the hands of a government that might give them to terrorists. We are watching as the president assembles a vast, secret database of the bank transactions and telephone contacts of innocent American citizens in the hope that some computer program will be able to pick out suspicious patterns. We are witnessing a crass effort to intimidate the New York Times and all journalists into censoring themselves in a way the First Amendment bars the government from censoring them.

And these things are not risks. They have already happened.

The president says the terror suspects at Guantanamo are dangerous people who will hurt Americans if given the freedom to do so. He's probably right.

Probably.

This is the point at which you have to decide for yourself how willing you are to tolerate mistakes. Are you comfortable with the idea that, in the name of the people of the United States, our government is picking up terror suspects and detaining them without charges or trial for a period of years, perhaps forever?

Or do you think the government must at some point show evidence -- to all of us -- that the person detained is, in fact, a danger to the United States?

Nobody wants to be wrong, either way.

Still, there can't be any doubt that for all the people around the world who think they hate the United States and everything it stands for, something stunning happened last week. The U.S. Supreme Court said every person in the custody of the United States government is entitled to due process of law, even the close associate of the man who planned the September 11th attacks. And the President of the United States said he will abide by the Supreme Court's ruling.

The war on terror may not be a real war, but that is a real victory.


Copyright 2006

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