War on Terror: It's Hamdan All Over Again

Allegory (of Justice) by Luca Giordano (ca. 1670)

Back at the ranch, out of earshot of the catterwauling over John Kerry's gaff, The Decider staying the course with his defense secretary and the other mind-numbing news of the day, the first briefs have been received by a federal appeals court regarding the new terrorist detainee law from lawyers representing Guantánamo Bay prisoners in two law cases.

You know what? Over the long haul, the outcome of these cases will have a whole lot more bearing on the future conduct of the War on Terror -- and the future of American and its core values -- than the news du jour, be it blather from a foot-in-mouth elitist pretty boy or speculation over Donald Rumsfeld.

In June, ruling on Hamdan v. Rumsfeld, the most important high court decision of the young millennium, a majority of Supreme Court justices delivered a stinging rebuke to the legislative and executive branches of government.

The justices declared that Congress had not taken away the courts' authority to rule on the constitutionality of war crimes trials (or tribunals) for Guantánamo detainees, who include Salim Ahmed Hamdan, a captured Al Qaeda bodyguard and Osama bin Laden's driver, and for good measure castigated the president for his extraordinary and extra-legal power grab.

After a lame and too short debate in September, Congress passed and the president signed the Military Commissions Act of 2006, which pretty much ignored Hamdan, validated the use of torture, pissed on the Geneva Conventions and turned the hallowed legal principle of habeas corpus on its ear.

Congress, in effect, gave The Decider ex post facto approval for extralegal prosecutions and other practices that have made America the shame of the free world at a time when it claims to be defending the free world.

Writes Lyle Denniston at ScotusBLOG on the two Guantánamo detainee cases before the appeals court:

"In their opening salvo, lawyers for Guantánamo prisoners argued in two briefs filed Wednesday in the D.C. Circuit Court that the language Congress chose in the new new law actually leaves detainees who have not been charged with any crimes free to go forward with constitutional and treaty-based challenges to their original detention and continued imprisonment.

"In essence, the lawyers contended, Congress' new exercise in drafting should be read the same way as the Supreme Court did with the original attempt in its ruling in Hamdan v. Rumsfeld -- leaving habeas rights intact."

In a separate development, seven retired federal judges filed an amicus brief in the two cases, arguing that the new law is unconstitutional because it would allow the military to use evidence obtained by torture or "inhumane treatment" in detention proceedings, and the courts would not be able to review the legality of such evidence. (Click here for the judges' brief.)

I am not legal expert. I only pretend to be one. But it seems likely that the cases now wending their way through the appeals court system will end up in the Supreme Court as a sort of Hamdan II, or the original Hamdan will make an encore appearance before the high court.

I queried Denniston about whether either is in the cards, as well as whether Chief Justice John Roberts will again recuse himself as he did in Hamdan, which is why the ruling was 5-3 and not 5-4. (Roberts had been involved in the case earlier as an appeals court judge and had to disqualify himself.)

Denniston notes that Roberts was not a member of any court that has considered the two pending Circuit Court cases and sees no reason for him to recuse himself should they reach the Supreme Court.

But he adds:

"I am not as sure about that if the Hamdan case itself returns to the court. Since the same issues of constitutionality of the new law are at issue in his case, that might turn out to be the vehicle for a new test of the new law at least as it applies to military commissions. Roberts probably could get by with sitting in that case, since it would involve an entirely new law."

Denniston, along with Linda Greenhouse, is the gold standard of Supreme Court reporting. So how does he see Roberts voting if there is a reprise of Hamdan?

"I can see him going either way."

That is a sage answer because it takes into consideration two conflicting realities:

Roberts is the president's man, but the president has so thoroughly usurped the rights of the judicial branch as enshrined in the Constitution that in all good conscience it would be difficult for him to allow that to continue to happen.

Meanwhile, let's not lose sight of the fact that:

Hamdan was not about the guilt or innocence of Salim Ahmed Hamdan. He is a despicable sack of terrorist excrement.

There would not have been a Supreme Court or ruling Military Commissions Act of 2006 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.

There might not have been a ruling or the new law if the feckless Democratic Party had operated as a true Loyal Opposition over the last several years instead of being struck deaf and dumb.