NOT WITHOUT A RUBBER STAMP YOU DON'T:

Looking Backward: Hamdan and the "New" War on Terror (Joseph Knippenberg, July 5, 2006, American Enterprise)

While the dissenters do an excellent job showing how Stevens cherry-picks or misconstrues precedents and obtrudes his judgment in areas where the responsible political branches—President and Congress—are demonstrably more competent, I want to explore a larger issue underlying this inter-branch dispute: the difference between the kinds of judgments made in courtrooms and those made in executive offices and legislative chambers.

Much of Stevens’s argument depends upon his understanding of the “common law of war,” a significant portion of which is codified in treaties like the Geneva Conventions, with the remainder embodied in practices and policies commonly adopted, explicitly or implicitly, by “civilized” nations. In other words, he looks backward at these rules and practices and applies them, either directly or by analogy, to the case at hand. He does not (and ought not) purport to be making new rules; at most, he develops the implications of rules already at hand. That’s what judges are supposed to do.

Such a procedure is, of course, ill-suited to a situation not anticipated (or at best only imperfectly anticipated) by those who developed the rules in the past. If al-Qaeda is a different sort of adversary than we have encountered before, and if the global war on terror is a new and different sort of war, then simple application or even narrowly analogical reasoning may not be adequate to our new challenges. When they confront something like this, judges ought to be properly deferential to the other branches, whose job it is precisely to deal with novelty.

Indeed, the very notion of a common law of war acknowledges the possibility of novelty and adaptation, undertaken especially by those responsible for civilized conduct on the battlefield (if that is not too contradictory a notion). When encountering new circumstances, commanders and commanders-in-chief innovate, not only by adopting new strategies and tactics, but by devising new means of dealing with captives, all within the confines of the civic and military ethos they have cultivated. When such new practices are endorsed, accepted, or imitated by others, they too become part of the common law of war, despite having originated outside its bounds. Judges—who do not have trained military judgment, access to information to which commanders are privy, or the responsibility to “wage war successfully,” as Chief Justice Charles Evans Hughes (who had also served as Secretary of State) once put it—ought to be very chary of second-guessing these new developments.

If anyone is going to second-guess the President and his battlefield commanders, it ought to be Congress, which seems actually to have done so only in part in this instance. While the Detainee Treatment Act of 2005 limits the interrogation methods that may be used with captives, it avoids explicitly addressing the question of military commission procedures, leaving it subject to judicial review (albeit a different kind of review than the one undertaken by the Court in this case). In other words, Congress in 2005 passed the buck, failing to enter into a responsible political conversation with the executive branch over how to try detainees in this new kind of war.

Given the nature of courts in general and of this Court in particular, the result in Hamdan was almost predictable, once Congress’s directive about how and when Hamdan’s appeal should proceed was ignored. Since the new rules aren’t the same as the old rules, the former are said to be illegitimate.

One good thing may result from the Court’s willingness to exceed the bounds of its competence and tread on the toes of the politically responsible branches. Everyone seems to agree that Congress now has to step up to the plate and legislate for the military commissions that are supposed to try alleged al-Qaeda members. Given the manner in which national security seems to be the Bush administration’s political and substantive strong suit, the resulting legislation may establish procedures that look a lot like those already in place. On the other hand, the Court’s repudiation of those procedures in Hamdan provides some ammunition to those who have a conventional or law-enforcement view of the global war on terror, which is (I’m sure) what they hoped when they succeeded in passing the buck in the first place.

If the Bush administration (as it ought) chooses vigorously to fight this battle, it can accomplish two things at least. First, its judgments about how to try detainees will in the end be vindicated, thus enabling us to “wage war successfully.” And second, the two politically responsible branches will have repudiated the judgments of Justice Stevens and his colleagues, which would have the salutary effect of reminding the Court of its mere equality with, and the deference it owes to, them.