The Supreme Court erred badly not once but twice yesterday in the same decision concerning Bush administration plans to hold military war crimes trials for enemy combatants at Guantanamo Bay.
The most high-profile error involved the substance of the decision itself — more on this in a moment. But the second false step, at least as pernicious, was that the Supreme Court issued any opinion at all. Doing so amounted to a power grab for the courts that could have dangerous long-term implications.
When passing the Detainee Treatment Act, which took effect on Dec. 30, 2005, Congress expressly wrote (and the president signed into law) a provision noting that “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.”
Yet five members of the Supreme Court did just that, not only considering the application of Salim Ahmed Hamdan — Osama bin Laden’s former bodyguard and driver — but granting him the relief he sought. In order to ignore the clear language of the law that removed the court’s jurisdiction, the majority had to do logical back-flips worthy of particularly talented high-wire circus performers.
Thus does the court imperially seize more and more power for itself, hubristically upsetting the finely tuned allocation of authority among the three branches of government. Such a grasping court plants the seeds of a future constitutional crisis.
The dangerous imperialism of the majority is even more clear in this instance because of the nature of the case itself, which involves military and foreign affairs — a realm where the Constitution decidedly gives the president primary power, Congress secondary authority and the courts almost no responsibility at all. In this case, the high court inserts itself into a matter directly against the will, both procedurally and substantively, of both the other branches of government.
What’s worse, the court majority does so to utterly absurd effect. It purports to apply the protections of the international Geneva Conventions to terrorists who fight under no particular flag — and who themselves therefore do not operate under, nor abide by, the same conventions. And it adopts those conventions as part of American law enforceable under American courts, despite the fact that the Conventions’ own language makes them enforceable via diplomatic action rather than through the courts of any one nation.
Even worse still, the court majority specifically substitutes its own judgment of “military necessity” for that of the president and military services. As Justice Clarence Thomas wrote in dissent (joined by Justices Antonin Scalia and Samuel Alito, in support of a lower court decision written by now-Chief Justice John Roberts), the court’s assumption of such responsibility “is so antithetical to our constitutional structure that it simply cannot go unanswered.”
Justice Thomas is right. The decision and the very act of choosing to decide it was precipitate and injurious to the republic. Both domestically and abroad, this nation very likely will be less safe as a result.
