I did a quick turn around various sites looking for new material. But I have yet to find anything new that Flopping Aces hasn't already excerpted and linked to. Few bloggers have the capacity to read and synthesize the amount of material Flopping Aces handles on a story like this.
A couple of quick points: I think that much of the concern on the right about this decision may be overblown. And of course the cheering on the left is out in orbit even more than usual.
Congress will address the issue and make whatever corrections are necessary. Meanwhile, we have another fault line forming for the November political battle. There are two sides here. One, those who realize we are at war and we must do all within our power to win and two, those who are less concerned with the threat of terrorism than they are with the protection of the civil liberties of those who commit atrocities outside the bounds of all legality and decent society.
Which side are you on?
The Hamdan decision exposes those fault lines, but also offers a dangerous precedent: that of the Supreme Court inserting itself into the Constitutional prerogative primarily of the President but also of the Legislature to manage national security issues in a time of war.
Both Justices Thomas and Scalia (pictured right) in their dissents spoke to the danger of that problem. Of special concern is that the Supreme Court would revise U.S. law on the basis of International treaties and extend protection to terrorists who have never been covered by the Geneva Conventions.
However, the opinion of Richard Samp of the Washington Legal Foundation cited at SCOTUSblog seeks to allay many of those fears. We shall see.
Dennis Byrne at Real Clear Politics also debunks the left wing glee and points out what this decision does and does not do. But Dennis, like many of us, is mystified about the decisions position on Geneva Convention protections.
Lastly, Ronald A. Cass, Chairman of the Center for the Rule of Law, Dean Emeritus of Boston University School of Law weighs in with one of the best short essays on the subject.
I encourage each of you to read the entire text yourself. Simple excerpts do not do the piece justice, but here's a sample anyway:
Read the rest. There will be a quiz on this material!
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!
The case challenged the Bush Administration's plan to use military tribunals to try Guantanamo detainees as enemy combatants who are neither within the criminal law and due process protections of the U.S. Constitution nor within the protections afforded prisoners of war by the Geneva Conventions. The Administration has been assiduously trying to prevent al Qaeda terrorists from learning what it knows and doesn't know about their operations - an effort opposed by The New York Times, the left side of the Democratic Party, and most of France. Its plans for trial by military commission and its detention at Guantanamo of al Qaeda suspects captured outside the United States are part and parcel of that effort.
The five-justice majority of the Supreme Court that decided the Hamdan case yesterday showed great interest in demonstrating their commitment to upholding constitutional protections and protecting international human rights, both admirable instincts in many settings. They showed less appreciation for the fact that Americans are threatened, and thousands of innocent Americans were killed by brutal thugs - the sort who behead civilians, film it as sport, and post the video on the Internet. And the justices showed no appreciation for the fact that Congress and the President might well know more than they do about the security needs of the United States.
The President may not have made perfect choices on the procedures used for these trials. He may not have perfectly balanced concerns over fair process with concerns over national security. But the President, not the Court, has expertise on this subject. Justice Breyer's concurrence says that Congress didn't give the President a blank check to fight the war on terror. But the Constitution also doesn't give the justices a blank check to write the law. It especially doesn't give them a check drawn on a foreign bank.
Yesterday's decision may bring a smile to the faces of Bush-bashers. It should be as fleeting as the smiles with which developers greeted the justices' creativity in Kelo. Let's hope it's as easily corrected.