A Constitutional Crisis & Life After Hamdan

Beyond the question of whether George Bush is a war criminal is a more pressing concern in the wake the Supreme Court's stinging rebuke: How will the U.S. now administer the War on Terror?

Predictably lost in all the chortling in the mainstream media and blogosphere over the setback for the White House is that:

* The Islamic jihad against the U.S. and the West has not gone away.

* The War on Terror still needs to be prosecuted vigorously and the homeland protected.

* That the enemy, whether Al Qaeda in Afghanistan, insurgents in Iraq or Hamas in Palestine, must not be allowed to view the court ruling as a setback or a sign of weekness, but rather a necessary corrective in a democracy built on checks and balances. (You didn't ask, but I absolutely support Israel's incursion, airstrikes and kidsnappings in Gaza.)

* That Ahmed Salim Hamdan's incarceration is necessary and when he is tried will be convicted for his terrorists deeds.

The Justice Department's initial response to the Hamdan decision was to file a request with the U.S. Circuit Court in Washington to hold a briefing to discuss the impact of the decision. The briefing would be held in connection with other pending cases in which detainees at the Guantánamo Bay military prison challenge how their cases are being handled.

This is no small matter because of one if the more draconian actions taken by the administration in subverting the Rule of Law --the Detainee Treatment Act of 2005.

The act stripped all federal courts of jurisdiction to hear habeas cases filed by any Guantánamo detainee and set up a new but more limited review of detainees' status by the D.C. Circuit. The law covered cases testing the detention of individuals not yet charged with any crimes, and those testing the war crimes tribunals.

In essence, the Justice Department is lost in the woods and needs the Circuit Court's help to find its way out.

YOO SAID IT

If it can be said that the Supreme Court's rebuke targeted any one man beyond the president, it is John C. Yoo, the principal architect of the Bush administration's novel legal strategy in the War on Terror. It was Yoo's reasoning that went into the administrations arguments before The Supremes in defending its treatment of Hamden.

Yoo is not a happy camper.

Now a law professor at the University of California, Berkeley, he had this to say about the ruling:

What the court is doing is attempting to suppress creative thinking. The court has just declared that it's going to be very intrusive in the war on terror. They're saying, "We're going to treat this more like the way we supervise the criminal justice system. "

Yoo fears that the ruling could mean the collapse of the U.S.'s vital leadership role in the War on Terror:

It could affect detention conditions, interrogation methods, the use of force. It could affect every aspect of the war on terror.

In hindsight, it seems like it was inevitable that the shaky legal limb that Yoo took the administration out onto would break sooner or later.

Noted the New York Times about Yoo's bitter comments:

He was not overstating his case. True, the decision itself — holding that the government could not try detainees held at Guantánamo Bay, Cuba, for war crimes in a particular way — was narrow, given that it directly affected only 10 men and did not address the administration's broader contention that it can hold those men and hundreds of others without charges forever. And Congress may yet put some or all of the president's programs on firmer legal footing.

But the effect of the decision, constitutional lawyers across the political spectrum agreed, could devastate the administration's main legal justifications for its campaign against the terrorist threat.

WE'VE BEEN DOWN THIS ROAD BEFORE

Finally, let's not lose sight as we approach Independence Day that if the fallout from Hamdan represents a true constitutional crisis -- and I believe that it does -- we've been down this road before.

Abraham Lincoln suspended habeas corpus during the Civil War. FDR interned thousands of Japanese-American citizens during World War II. Richard Nixon conspired to undermine the Constitution in Watergate.

Be that as it may, President Bush has gotten us into really big trouble at a time in our history when there is no greater threat to the security of the homeland.

And I'm not sure anyone in a position of authority has a clue about what to do about it.