October 19, 2006


Sending a Message: Congress to courts: Get out of the war on terror. (JOHN YOO, October 19, 2006, Opinion 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.

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.

Posted by Orrin Judd at October 19, 2006 11:54 PM

Good stuff! Notice his last paragraph in the Opinion article?

Posted by: Tom Wall at October 20, 2006 2:06 AM

Doesn't matter. Hamdan was a travesty because 5 justices basically said "Screw what Congress or or Constitution says, here is what we want," and they proceeded to re-invent the Geneva Convention from whole cloth. (Al-Queda wasn't a signatory? Doesn't matter to them.)

There is nothing to prevent 5 justices from simply doing it again.

Posted by: Gideon at October 20, 2006 4:06 AM

The only way to prevent five justices from "simply doing it again" is making sure we elect presidents who don't nominate leftwing ideologues to the bench. Ditto congress critters.

Posted by: erp at October 20, 2006 8:23 AM

Hamdan is an extremeely fragile precedent. I t does not provide precedent for invalidating the MCA, because the MCA cures the grounds for its holding.

Yoo's article is very unssatisfactory as a atatement of the law after Hamdan. What he is actually saying is that Hamdan was wrongly decided (with which I conur) and that a court disposed to rule in favor of accused war criminals as it did in Hamdan would do so again in a case arising under the MDA.

That may be so, but that court will have to do for a new set or reasons, and without precedent, the pro war-criminal language in Hamdan being mere dictum.

Posted by: Lou Gots at October 20, 2006 2:29 PM