The Day After Hamdan & Beyond

For the purposes of this discourse, reaction to the U.S. Supreme Court's sweeping rebuke of the Bush administration's extralegal tactics in the War on Terror falls into two catagories -- those who applaud it while acknowledging that new detention and prosecution policies will need to be found, and those who see the ruling as a liberal plot that gives a go-free card to Al Qaeda.

I don't have to tell you which camp I'm in.

As we mull the implications of the Hamdan vs. Rumsfeld decision, let's not lose sight of the fact that it was not about the guilt or innocence of Salim Ahmed Hamdan. He is a despicable sack of terrorist excrement and eventually will be found guilty of charges that he is an enemy combatant.

Let's also not lose sight of the fact that there would not have been a Supreme Court ruling if the secrecy obsessed Bush administration had worked with Congress and the Courts -- and not against those institutions -- to fashion appropriate responses to the unprecedented threat posed by terrorist groups in the new millenium.

Finally, let's not lose sight of the fact that there might not have been a ruling if the feckless Democratic Party had operated as a true Loyal Opposition over the last several years.

AVOIDING THE DROOL

Those who think that Hamdan cuts terrorists a break live in a world where everything breaks down into a Righteous Right vs. Treasonous Left perspective. They need to take a deep breath and empty their drool cups.

Chester, a Marine Corps veteran and military affairs writer, avoids the drool in a Belmont Club post and hits a very big nail on the head.

Chester states that Hamdan is a turning point in the application of war conventions and treaties and implicit in that is that soverign states that play by the rules are most vulnerable in the face of non-state organizations that don't.

This is a genuinely scary thought.

My view is that for the time being we're stuck with our conventions and treaties just like the police are stuck with their rules and regulations even when going against the most depraved serial killer.

As Belmont Club guru Wretchard notes, privateering is not desirable, but it may be inevitable as a result of Hamdan. This is another genuinely scary thought.

My hope is that there can be new legislation that holds up to legal scrutiny while taking into account the unlevel playing field in the War on Terror. That is a tall order for legislators more intent in pandering to their base with amendments banning same sex marriages and flag burning.

I am reminded of what Pogo said: "We have met the enemy and it is us."

But the big news, for the moment, is that the freaking system works.

HISSY FITS AND HURRAHS

As expected, reaction to the Supreme Court ruling has been all over the place.

Ronald A. Cass at Real Clear Politics loves it when the Supreme Court goes his way, but has a hissy fit when a ruling like Hamden comes along:

Liberty may have been the traditional casualty of war, but common sense is its new colleague. The Supreme Court, trying hard on the anniversary of last term's Kelo decision to find a suitable sequel, performed a rare triple loop in Hamdan v. Rumsfeld. It found jurisdiction in the face of a statute directly taking jurisdiction away from the Court. It second-guessed the President on the need for particular security features in trials of suspected al Qaeda terrorists. And it gave hope to One-World-ers by leaning on international common law to interpret U.S. federal law. If that weren't enough, the (left, lefter, and far left) turns were executed in the course of giving a court victory to Osama bin Laden's driver. What a perfect way to end the term!

This, of course, is not a victory for OBL's driver. It is a victory for common sense.

Contrast Cass's whinging with what the New York Times says in an editorial:

The Supreme Court's decision striking down the military tribunals set up to try the detainees being held in Guantánamo Bay is far more than a narrow ruling on the issue of military courts. It is an important and welcome reaffirmation that even in times of war, the law is what the Constitution, the statute books and the Geneva Conventions say it is — not what the president wants it to be.

. . . The current conservative court is not hostile to law enforcement or presidential power. But it is proving to be admirably protective of individual freedom and the rule of law. Rather than continue having his policies struck down, President Bush should find a way to prosecute the war on terror within the bounds of the law.

Andrew Cochran at Counterterrorism Blog looks ahead:

The decision is actually a huge political gift to President Bush, and the detainees will not be released that easily. The President and GOP leaders will propose a bill to override the decision and keep the terrorists in jail until they are securely transferred to host countries for permanent punishment. The Administration and its allies will release plenty of information on the terrorist acts committed by the detainees for which they were detained . . . They will also release information about those terrorist acts committed by Gitmo prisoners after they were released. They will challenge the “judicial interference with national security” and challenge dissenting Congressmen and civil libertarians to either stand with the terrorists or the American people. The Pentagon will continue to release a small number of detainees as circumstances allow. The bill will pass easily and quickly. And if the Supremes invalidate that law, we’ll see another legislative response, and another, until they get it right. Just watch . . .

Okay, I'll be watching, but I think the administration -- even this administration -- is not stoopid enough to lock horns with The Supremes.

Andrew Sullivan at The Daily Dish is, as always, eloquent and to the point:

The more you read, the more you see what a body-blow this is to our quasi-monarchical president. The ruling clearly states that the interrogation methods currently authorized by Rumsfeld and the CIA are unlawful. There's also a warning against the over-broad executive interpretation of Congress's Authorization for the Use of Military Force - which implicates the NSA program. Big news, methinks. The Founders have not been disproved. This constitutional system works, even in wartime, and even under an administration with demonstrable contempt for the rule of law.

Daniel Henninger is one of the few people in the Wall Street Journal's ivory tower whose knuckles don't drag when he walks. He's not happy with the ruling, but is not afraid to be be critical of the administration. He takes a semi shot here:

So we got the Hamdan Guantanamo detainee decision yesterday, the turmoil over revealing the Swift surveillance of terrorist financing a week ago, the FBI's capture in Florida of the would-be al Qaeda bombers of the Sears Tower before that, and oh yes, those 17 Muslims in Canada who wanted to invade Parliament and behead the prime minister. We seem to be thoroughly entangled just now in never-ending tensions over civil liberty concerns on one hand and manifest national security threats on the other. Nearly five years after September 11, it's a little stale to argue that this much confusion is just the way a vigorous democracy functions. Or not.

. . . Perhaps there's a silver lining. The public demonizing of Messrs. Bush, Cheney and Gonzales as ruthless tramplers of civil liberties is a throwback to the anti-LBJ, anti-Nixon style of Vietnam-era protests. This has been catastrophic for shaping public policy around this issue. But if the bad guys go slow because they think that George Bush and Dick Cheney are RoboCops willing to do what they gotta do track, trap and catch them, hey, maybe our crackpot "system" works after all.

Excuse me, but shaping what public policy? We are precisely where we are because of the absence of public policy. Du-uh.

Reliably liberal Reed Hundt at TPM Cafe on The Rove Option:

Look for the brilliant mastermind of November victories to use the Supreme Court's pro-prisoner decision to the R's advantage this fall. Add to "cut and run" as an epithet for Democrats the potent message that D's stand for releasing murderers and terrorists. To thwart this tactic, Democrats need to clamor for legislation calling for no bail, confidential reports to Congress on the danger to the country from these prisoners (conducted by the 911 Commission), trials starting no later than in the fall, and harsh penalties.

Sounds good, but it assumes that the Dems have a pulse. I'm not sure that they do.

The reliably reactionary New York Post in a fire and brimstone editorial:

So it turns out that the Constitution is a suicide pact after all.

At least, that's how five justices of the United States Supreme Court justices would have it.

. . . Practically speaking, it means that the masked thugs who sawed Nicholas Berg's head off while the vidotape ran are entitled to the same procedural protections as a Marine who goes AWOL.

What's next? Miranda warnings and a public defender for Osama himself, if the happy day ever comes when the master murderer is led shackled from the cave he now calls home?

Bottom line: The court has severely limited the power of the executive to wage war on a form of international terrorism that has shown itself willing - indeed, eager - to harness sophisticated technology to kill thousands in the blink of an eye.

The Washington Post gets the last word in a news analysis:

For five years, President Bush waged war as he saw fit. If intelligence officers needed to eavesdrop on overseas telephone calls without warrants, he authorized it. If the military wanted to hold terrorism suspects without trial, he let it.

Now the Supreme Court has struck at the core of his presidency and dismissed the notion that the president alone can determine how to defend the country.

. . . In some ways, the ruling replicates a pattern in American history where presidents have acted aggressively in wartime, only to be reined in by courts or Congress. Even some Bush supporters said yesterday that it may be appropriate now to revisit decisions made ad hoc in a crisis atmosphere, when a president's natural instinct is to do whatever he thinks necessary to guard the nation against attack.

"That's what presidents do, and I say thank goodness for that," said George J. Terwilliger III, deputy attorney general under President George H.W. Bush. "But once you get past that point . . . both as a matter of law and a matter of culture, a more systemic approach to the use of authority is appropriate."

Thank goodness indeed.