Although many legal scholars are celebrating yesterday’s ruling as a return to the rule of law, the rule of law was never in question. President Bush has adhered to every one of the Supreme Court’s War on Terror decisions, requesting and receiving congressional authorization when the Court ruled in a previous case that he did not have the authority to act on his own. Consider also the President’s measured reaction in which he pledged to abide by this decision as well:
“We’ll abide by the court’s decision,” Bush said during a news conference in Rome. “That doesn’t mean I have to agree with it.” The court’s decision was sure to be popular in Europe, where many leaders have called for the closing of Guantanamo. “It was a deeply divided court, and I strongly agree with those who dissented,” Bush said. “And that dissent was based upon their serious concerns about U.S. national security.”
That a president would agree to adhere to a Supreme Court decision may not sound like much even at a time of war, but a look at Franklin Roosevelt’s actions during World War II will put things in perspective. In Ex Parte Quirin, the Supreme Court was asked to decide whether executive military tribunals could be used (instead of Article III courts) to try alien and U.S. citizen enemy combatants detained in the United States.
Six months after Pearl Harbor, U-boats landed eight German marines on American shores for sabotage missions. President Roosevelt ordered them to be tried by a secret military tribunal. Rushing into special session to hear oral argument, the Supreme Court deliberated for a single day before upholding the President in Ex parte Quirin, deferring an opinion till later. Only when Chief Justice Stone took up the task of writing did he appreciate how difficult it was to justify the Court’s precipitate decision–likening his effort to the ‘mortification of the flesh’. But there was no turning back. As Stone was labouring on his opinion, six of the eight Germans were executed–making it impossible for the Court to change its mind without condemning itself as well as the President. Kill now, explain later: no believer in the rule of law can take pride in the Quirin story.
