History Forum / General / British History / October 2006

Apposite & Provocative.

DSH
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AT LAW

Sending a Message
Congress to courts: Get out of the war on terror.

BY JOHN YOO
Thursday, October 19, 2006

The Wall Street Journal

During the bitter controversy over the military commission bill, which
President Bush signed into law on Tuesday, most of the press and the
professional punditry missed the big story. In the struggle for power
between the three branches of government, it is not the presidency that
"won." Instead, it is the judiciary that lost.

The new law is, above all, a stinging rebuke to the Supreme Court. It strips
the courts of jurisdiction to hear any habeas corpus claim filed by any
alien enemy combatant anywhere in the world. It was passed in response to
the effort by a five-justice majority in Hamdan v. Rumsfeld to take control
over terrorism policy. That majority extended judicial review to Guantanamo
Bay, threw the Bush military commissions into doubt, and tried to extend the
protections of Common Article 3 of the Geneva Conventions to al Qaeda and
Taliban detainees, overturning the traditional understanding that Geneva
does not cover terrorists, who are not signatories nor "combatants" in an
internal civil war under Article 3.

Hamdan was an unprecedented attempt by the court to rewrite the law of war
and intrude into war policy. The court must have thought its stunning power
grab would go unchallenged. After all, it has gotten away with many broad
assertions of judicial authority before. This has been because Congress is
unwilling to take a clear position on controversial issues (like abortion,
religion or race) and instead passes ambiguous laws which breed litigation
and leave the power to decide to the federal courts.

Bingo!  ...Which is a Big Mistake by Congress.  -- DSH

Until the Supreme Court began trying to make war policy, the writ of habeas
corpus had never been understood to benefit enemy prisoners in war. The U.S.
held millions of POWs during World War II, with none permitted to use our
civilian courts (except for a few cases of U.S. citizens captured fighting
for the Axis).

Even after hostilities ended, the justices turned away lawsuits by enemy
prisoners seeking to challenge their detention. In Johnson v. Eisentrager,
the court held that it would not hear habeas claims brought by alien enemy
prisoners held outside the U.S., and refused to interpret the Geneva
Conventions to give new rights in civilian court against the government. In
the case of Gen. Tomoyuki Yamashita, the court refrained from reviewing the
operations of military commissions.

In Hamdan, the court moved to sweep aside decades of law and practice so as
to forge a grand new role for the courts to open their doors to enemy war
prisoners. Led by John Paul Stevens and abetted by Anthony Kennedy, the
majority ignored or creatively misread the court's World War II precedents.
The approach catered to the legal academy, whose tastes run to swashbuckling
assertions of judicial supremacy and radical innovations, rather than hewing
to wise but boring precedents.

Thoughtful critics point out that because the enemy fights covertly, the
risk of detaining the innocent is greater.

But so is the risk of releasing the dangerous. That's why enemy combatants
who fight out of uniform, such as wartime spies, have always been considered
illegals under the law of war, not entitled to the same protections given to
soldiers on the battlefield or ordinary POWs.

Disguised suicide-bombers in an age of WMD proliferation and virulent
America-hatred are more immediately dangerous than the furtive
information-carriers of our Cold War past. We now know that more than a
dozen detainees released from Guantanamo have rejoined the jihad.

Appalling!  The Constitution is not a suicide pact. -- DSH

The real question is how much time, energy and money should be diverted from
winning the fight toward establishing multiple layers of review for
terrorists. Until Hamdan, nothing in the law of war ever suggested that
enemy status was anything but a military judgment.
While there may be different ways to strike a balance, this is a decision
for the president and Congress, not the courts.

Bingo!  This is the sort of decision the ELECTED BRANCHES of Government
should make -- NOT the Courts.  -- DSH

The Constitution gives Congress the authority to determine the jurisdiction
of federal courts in peacetime, and also declares that habeas corpus can be
suspended "in Cases of Rebellion or Invasion" when "the public Safety may
require it."

Congress's power is even greater when it is correcting the justices' errors.

Courts are ill-equipped to decide whether vast resources should be devoted
to reviewing military detentions. Or whether military personnel's time
should be consumed traveling back to the U.S. for detainee hearings. Or
whether we risk revealing information in these hearings that might
compromise the intelligence sources and methods that may allow us to win the
war.

This time, Congress and the president did not take the court's power grab
lying down.

They told the courts, in effect, to get out of the war on terror, stripped
them of habeas jurisdiction over alien enemy combatants, and said there was
nothing wrong with the military commissions.

It is the first time since the New Deal that Congress had so completely
divested the courts of power over a category of cases. It is also the first
time since the Civil War that Congress saw fit to narrow the court's habeas
powers in wartime because it disagreed with its decisions.

The law goes farther.  It restores to the president command over the
management of the war on terror.

It directly reverses Hamdan by making clear that the courts cannot take up
the Geneva Conventions. Except for some clearly defined war crimes, whose
prosecution would also be up to executive discretion, it leaves
interpretation and enforcement of the treaties up to the president. It even
forbids courts from relying on foreign or international legal decisions in
any decisions involving military commissions.

All this went overlooked during the fight over the bill by the media, which
focused on Sens. McCain, Graham and Warner's opposition to the
administration's proposals for the use of classified evidence at terrorist
trials and permissible interrogation methods. In its eagerness to magnify an
intra-GOP squabble, the media mostly ignored the substance of the bill,
which gave current and future administrations, whether Democrat or
Republican, the powers needed to win this war.

Mr. Yoo, professor of law at Berkeley and visiting scholar at the American
Enterprise Institute, served in the Bush Justice Department from 2001-03. He
is the author of "War By Other Means" (Grove/Atlantic 2006).