"Hamdan" and the Law
by George Liebmann

No one reading the Supreme Court opinions in the Hamdan case can regard the result as inescapable. Justice John Paul Stevens’ circumvention of Congress’ attempt at jurisdiction-stripping is not convincing. But the court is not wrong to require clear statement when what is involved is habeas corpus and when the legislature mandates results in pending cases. Given the World War II cases, the opinions imposing court martial and Geneva Convention restrictions on military commissions also could have been written the other way.

But, as every one-time military recruit knows, the United States has tried to have its military obey the Geneva Conventions, and the Articles of War incorporate them. Since the protests of the Declaration of Independence, there has also been a prejudice against tribunals which make up their own procedures.

Justice Scalia’s dissenting opinion in the Rasul case demonstrated that the present court has innovated in regulating treatment of foreign prisoners. But the administration has renounced restrictions with which earlier administrations complied in dealing with combatants: it has denied captives even inspection of prison camps by the Red Cross. It ‘disappeared’ captives by initially refusing to disclose their identity and by maintaining of secret foreign places of detention and, it is said, torture. Since the cases during the Second World War, the premature downfall of the British and French empires has taken place, fuelled in both instances by civilian outrage against abuses and a fear that arbitrariness abroad would transform itself into arbitrariness at home.

The Court’s refusal to defer to the Executive occurs against a background: challenged policies were adopted against the advice of General Colin Powell; William Taft IV, former general counsel to both the Defense and State Departments; and the general counsels and judge advocates of the uniformed services. They represented the judgment not of experts but of a group of lawyers and appointed officials whose combined military experience compares unfavorably with that of the Admiral in H.M.S. Pinafore. The Administration, with respect to both citizens and aliens, has ‘pushed the envelope’ on the premise that any restrictions fetter the ‘war on terror’. Deference is not accorded to those not entitled to deference.

Even conservative justices, appointed in reaction to judicial interference with state legislation, are mindful that the courts have a legitimate role in supervising ‘corrective justice’ and maintaining fair procedure. Too many in the administration have succumbed to the siren song of those urging overthrow of the governments of Afghanistan, Iran, Iraq, Saudi Arabia, and Syria. They come from a student generation who, as Archibald Cox once said, "justify the use of devious, obstructive or forcible means of imposing one’s will on others by referring to some passionate belief in the righteousness of one’s objectives." The threat of WMD terrorism has been with us since the dawn of the atomic age, but hitherto it has been addressed in the calm way delineated by Vanevaar Bush in his Modern Arms and Free Men in 1952, not by promoting public hysteria and the derangement of free institutions.

A large question must be asked of Republican senators: will they, at last, unlike the administration, abide by advice from the experienced military? One cannot picture the Eisenhower, Ford or Reagan administrations, or one headed by Sen. Robert Taft, being careless about procedure, expert advice, or congressional relations. Clear thinking about terrorists is not fostered by regarding them not as enemies or criminals, but as sub-humans.

The late Philip Kurland observed that the erosion of federalism and of congressional power left us "not with substantive limitations against governmental tyranny but with procedural ones..the rule of law [which] requires that government not act except according to preestablished rule, [and] that it apply the rule according to preestablished procedure."

The real "Republicans in Name Only" are, as Sen Chuck Hagel and others have said, those who repudiate limits on government; who forget that tens of millions of Americans have vivid family memories of abuses by not only the Gestapo and NKVD but southeast Asian communists, Mexican federales, Irish black and tans, and Italian Caribinieri.

Too many ignore the warning of Justices Frankfurter, Jackson and Roberts in an opinion in 1946 inspired by the abuse of German emergency powers: "Evil men are rarely given power; they take it over from better men to whom it had been entrusted".

George Liebmann is a lawyer in Baltimore, Maryland.

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