Friday, June 30, 2006

The Silver Lining

According to a few, there is in fact a silver lining to be had in yesterday's Supreme Court ruling on Hamdan:

Andrew Cochran calls it a political gift: 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 (see this great ABC News interview with the Gitmo warden). 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.

Andy McCarthy makes essentially the same point but in greater detail: And I think it's strategically right to say this is a gift to the those concerned about national security, because it invites a debate in the months leading up to November about exactly what rights members of congress are willing to accord to the enemy in wartime. Two points here.

1. Justice Breyer's short concurring opinion maintains that all the court has really done is invite the president to seek legislation from congress authorizing the commissions and defining their structure. Several folks, me included, have argued from time to time that this is overdue anyway — we should have a national security court, created by congress to get many of the terrorism cases out of the regular criminal justice system. But that said, Justice Breyer's unfortunate invocation of the left-wing/civ-lib-extremist talking point, to wit, that "Congress has not issued the Executive a 'blank check,'" is bombast.


2. A big issue to watch out for as congress re-examines this: the protection of classified information from al Qaeda in the trial process.

One of the principal reasons for having commissions rather than courts-martial or civilian trials is to prevent our enemies from learning what we know and how we know it. But the court held that the president had not justified procedures which call, potentially, for excluding the terrorists from the courtroom when classified information is introduced.

Now, let's compare. Alien combatants have no constitutional rights; therefore, they have no constitutional right to be present at trial. On the other hand, protecting the security of the American people — which is what classified information is all about — is the number one obligation of government. So by what law does an al Qaeda killer's purported right to be present outweigh the American people's unquestioned right to have the government protect them (by, for example, not providing the enemy with sensitive intelligence)?

It could only conceivably be Geneva's Common Article 3 — an international law provision the court had to twist beyond recognition to give the enemy its benefit. That fuzzy language talks about providing "judicial guarantees which are recognized as indispensable by civilized people." OK, but who says all "civilized people" would opt to elevate a homicidal maniac's right of access to the government's most sensitive information over the government's obligation to protect its citizens by withholding intelligence that may help those trying to kill them do just that?

Why is this question so important? Because you can bet a big part of the debate in congress will be about whether the court has left congress with any latitude here on this point.

That's why Jonah's observation about Hamdan not being constitutionally based is crucial. Congress absolutely has the power to deny al Qaeda terrorists the right to be present at portions of trial where sensitive evidence is introduced. Let's leave aside that the court's entire Common Article 3 rationale is hooey (the article doesn't apply to al Qaeda and the court owed deference to the president's interpretation to that effect). The salient point here is that when the inevitable argument is made that the Geneva Conventions now require handing over our intelligence to the enemy in wartime, congress — and more properly, the president (who has the authority to cancel treaties) — should make clear that we would withdraw from the Geneva Conventions (or at least any offending portions of them) before we do that.

The United States government's job is to protect Americans, not please judicial elites, self-styled human rights activists, international law professors, and transnational progressives everywhere.

At a visceral level, this ruling just doesn't feel right. Whatever John Q. Public may think of President Bush's Iraq policy, every time the issue of his broader strategery and handling of Terrorism has been contrasted with Democrat cat-calling, disengagement and overall lack of coherent policies, the President and his party have won. There's no reason to think the dynamic different this time around.

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