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Settle down for a very long war on terror, to be fought not only in the cities and other battlegrounds of the terrorists’ choice, but in the media, the Congress and the courts as well. The terrorists won two big battles recently without firing a single shot or detonating a single human bomb. The New York Times, followed by other newspapers who ought to know better, published details of a secret government program designed to track funds used to finance terrorist operations and the U. S. Supreme Court voted 5 to 3 to deny the president the right to try, by military commissions (tribunals), detainees at Guantanamo, considered by the government to pose a danger to Americans.

Each of these two disasters deserves separate treatment so let’s deal here with the Supremes who are in a position to inflict even more actual damage to national security than a bunch of mainstream newspaper editors obsessing over their self-assumed watchdog function. It would be comforting to think of the Supreme Court as an august group of the wisest, most knowledgeable and objective experts on constitutional law available. But if that were so, shouldn’t they, in most cases at least, come to vaguely similar conclusions regarding the meaning of the constitution? In fact, in a multitude of the cases they consider, they are starkly divided by political and social philosophies.

The 5-3 vote in Hamdan v Rumsfelt essentially reflects the court’s liberal-conservative split with Justices Breyer, Ginsberg, Kennedy, Souter and Stevens joined in the majority opinion and Justices Alito, Scalia and Thomas dissenting vigorously. Chief Justice Roberts recused himself, having previously sat as a member of the U. S. Court of Appeals for the District of Columbia which had unanimously reversed a lower court ruling that military tribunals were unlawful because they did not comport with Geneva Convention rules. Roberts would otherwise have cast the fourth dissenting vote.

The conservative argument was perhaps best reflected by Justice ClarenceThomas in a lengthy dissent in which he said that the laws of war are flexible tools that evolve to meet the needs of new conflicts. “We are not engaged,” he said, “in a traditional battle with a nation state, but with a world-wide, hydra-headed enemy who lurks in the shadows, conspiring to reproduce the atrocities of September 11.” Thomas wrote that the “court’s willingness to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous”. A clearly angry Justice Antonin Scalia wrote that the court shouldn’t even have considered this case in view of an earlier action by Congress in passing a law denying judicial review of any habeas corpus petition by or on behalf of an alien detained at Guantanamo.

The majority opinion found that the president’s plan to use military tribunals violates the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. It overruled the commander-in-chief on the vital issue of how best to deal with war detainees of the type that conspire to blow up Americans and whose idea of justice is to decapitate any they are able to capture. Finally, in an apparent bow to international law and foreign opinion, it found that military tribunals were not compatible with international procedures which, in Justice Stevens’ words, were “recognized as indispensable by civilized people”. He, presumably, was not referring to Americans.

Let’s examine these findings in order. First, the 450 or so detainees still held at Guantanamo are not uniformed enemy combatants entitled to the protections of the Geneva Conventions. They are terrorists, conspirators and murderers, considered by the people who ought best to know as too dangerous to release, at least for the duration of the war. To the extent possible, the Bush administration has tried to return as many of them as practicable to their home countries for disposition. There are, however, policies and laws governing the return of prisoners to nations which might abuse them. By “abuse” here is meant real abuse such as, say, torture; not the infliction of discomfort or humiliation which has been elevated to the category of a war crime by the anti-war critics in this country. Most of the detainees are from Afghanistan, Saudi Arabia and Yemen, whose justice systems are quite different from ours. Trying these detainees (the term is too benign) by courts-martial as the court ruling permits, would give these savages the same due process rights as American service members. It would, moreover, involve such significant risks to the security of vital, classified information and military and intelligence procedures that the government would most likely decline to prosecute some.

Overriding a wartime commander-in-chief is, in the words of Justice Thomas, dangerous and unprecedented. The president and his intelligence chiefs and military commanders have access to information that the justices do not. Second-guessing him is a prescription for disaster. The court ruling leaves open the possibility that Congress can legislate some procedures that would make the tribunals acceptable. That’s a bad idea also. The executive branch can move swiftly in prosecuting a war; the Congress moves with the speed expected of a 535-member politically-divided committee. Finally, the decision bows to the influence of foreign opinion and so-called international law under which the American people have no obligation whatever when their own safety is at stake. The primary responsibility for the safety of the American people belongs to the president and it cannot be shared with the Judicial Branch whose politically appointed members are not accountable to American voters.

What it comes down to in the end is the sad reality that even the highest court in the land reflects the polarization of the Congress and the American people on how to fight this war on terrorism. Rather than rallying around a wartime leader and demonstrating unity against an unscrupulous enemy, we instead dissipate our energy on politically motivated debates over how best to fight it honorably and who shall determine the rules. Meanwhile, the enemy gloats over the spectacle of the one nation whose resources are essential in a war to defend human rights denying itself vital weapons in a battle against an enemy who represents the biggest threat to human rights everywhere. CRO

copyright 2006 J. F. Kelly, Jr.

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