Krauthammer: Emergency Over, Saith the Court

RealClearPolitics ^ | July 7, 2006 | Charles Krauthammer

[RWR8189]

1861. 1941. 2001. Our big wars -- and the war on terrorism ranks with the big ones -- have a way of starting in the first year of a decade. Supreme Courts, which historically have been loath to intervene against presidential war powers in the midst of conflict, have tended to give the president until mid-decade to do what he wishes to the Constitution in order to win the war.

During the Civil War, Abraham Lincoln suspended the writ of habeas corpus -- trashing the Bill of Rights or exercising necessary emergency executive power, depending on your point of view. But he got the whole troublesome business done by 1865, and the Supreme Court stayed away.

During World War II, Franklin Roosevelt interned Japanese Americans. He, too, was left unmolested by the court. But Roosevelt also got his war wrapped up by 1945. Had the current war on terrorism followed course and ended in 2005, the sensational, just-decided Hamdan v. Rumsfeld case concerning military tribunals for Guantanamo Bay prisoners would have either been rendered moot or drawn a yawn.

But, of course, the war on terrorism is different. The enemy is shadowy, scattered and therefore more likely to survive and keep the war going for years. What the Supreme Court essentially did in Hamdan was to say to the president: Time's up. We gave you the customary half-decade of emergency powers, but that's as far as we go. From now on the emergency is over, at least judicially, and you're going to have to operate by peacetime rules.

Or, as Justice Anthony Kennedy, the new Sandra Day O'Connor, put it, Guantanamo (and by extension, war-on-terrorism) jurisprudence must henceforth be governed by "the customary operation of the Executive and Legislative Branches." This case may be "of extraordinary importance," but it is to be "resolved by ordinary rules."

All rise: The Supreme Court has decreed a return to normality. A lovely idea, except that al-Qaeda has other ideas. The war does go on. One can sympathize with the court's desire for a Harding-like restoration to normalcy. But the robed eminences are premature. And even if they weren't, they really didn't have to issue a ruling this bad.

They declared illegal President Bush's military tribunals for the likes of Salim Ahmed Hamdan, Osama bin Laden's driver and bodyguard. First, because they were not established in accordance with congressional authority. And, second, because they violated the Geneva Conventions.

The first rationale is an odd but fixable misreading of congressional intent. The second is a grotesque and unfixable misreading of the Geneva Conventions.

The court feels that the president slighted Congress by unilaterally establishing military commissions. What is odd about this solicitousness for the powers of the legislature is that Congress, which is populated entirely by adults, had explicitly told the judiciary just six months ago that when it comes to Guantanamo prisoners, the judiciary should bug off.

The Detainee Treatment Act in December 2005 not only implicitly endorsed what the administration was doing with prisoners, it explicitly told the judiciary to leave the issue to Congress and the president to resolve, as they have historically.

The court's wanton overriding of Congress and the president is another in a long string of breathtaking acts of judicial arrogance. But it is fixable. The Republican leadership of the Senate responded to the court's highhandedness by immediately embarking on writing legislation to establish military tribunals.

The unfixable part of the Hamdan ruling, however, is the court's reading of Common Article 3 of the Geneva Conventions. The Geneva Conventions, which were designed to protect civilian populations and those combatants who respect them, were never intended to apply to unlawful combatants, terrorists of the al-Qaeda kind. The court tortures the reading of Common Article 3 to confer upon Hamdan -- and by extension the man for whom he rode shotgun, bin Laden -- the kind of elaborate legal protections that one expects from "civilized peoples."

This infinitely elastic concept will allow courts to usurp from Congress and the president the authority to fashion the procedures for military tribunals -- an arrogation that mocks the court's previously expressed solicitousness for congressional authority.

But no matter. Logic has little place here. The court has decreed: There is no war -- or we will pretend so -- and henceforth it shall be conducted by the court. God save the United States. (This honorable court can fend for itself.)

letters@charleskrauthammer.com

[Diogenesis]

TOTALLY IGNORED BY THE SUPREME COURT

AMERICANS ON A BRIDGE IN FALLUJA MURDERED BY ISLAMIC SUBHUMANS

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================= TOTALLY IGNORED BY THE SUPREME COURT ================

TORTURE OF AMERICANS BY ISLAMIC SUBHUMANS

================= TOTALLY IGNORED BY THE SUPREME COURT ================

VERY PARTIAL LIST OF ISLAMIC TERRORIST ACTIVITIES

1968 Robert Kennedy assassinated
1972 Munich Olympics Sep-5,1972 (Black September)
1976 Entebbe Hostage Crisis, June 27, 1976
1979 Iran Hostage Crisis, Nov. 4, 1979 444 days
1979 Grand Mosque Seizure, Nov 20,1979
1981 Assassination of Egyptian President, Oct 6,1981
1982 Assassination of Lebanese Prime Minister, Sept 14, 1982
1983 Bombing of US Embassy in Beirut6, April 18,1983
1983 Bombing of Maring Barricks, Beruit, Oct 23,1983
1984 Hizballah Restaurant Bombing, April 12,1984
1985 Egyptian Airliner Hijacking, Nov 23,1985
1985 Rome Airport murders
1985 TWA Flight 847 hijacked, U.S. Navy diver murdered
1985 Achille Lauro hijacking, Homacidal maniac lived in saddams Iraq
1986 Aircraft Bombing in Greece, March 30, 1986
1988 Pan Am 747 Flight 103 Bombing, Lockerbie, 100's murdered
1988 Berlin Discoteque Bombing, Dec 21,1988
1992 Bombing in Israeli Embassy in Argentina, March 17,1992
1993 Attempted Assassination of Pres. Bush Sr., April 14,1993
1993 First World Trade Center bombing, February 26th, 7 Killed, Hundreds injured, Billions
1994 Air France Hijacking, Dec 24,1994
1995 Attack on US Diplomats in Pakistan, Mar 8,1995
1995 Military Installation Attack, Nov 13, 1995
1995 Kashmiri Hostage taking, July 4,1995
1996 Khobar Towers attack
1996 Sudanese Missionarys Kidnapping, Aug 17,1996
1996 Paris Subway Explosion, Dec 3,1996
1997 Israeli Shopping Mall Bombing, Sept 4, 1997
1997 Yemeni Kidnappings, Oct 30,1997
1998 Somali Hostage taking crisis, April 15,1998
1998 U.S. Embassy Bombing in Peru, Jan 15, 1998
1998 U.S. Kenya Embassy blown up, 100's murdered
1998 U.S. Tanzania Embassy blown up, 100's murdered
1999 Plot to blow up Space Needle (thwarted)
2000 USS Cole attacked, many U.S. Navy sailors murdered
2000-2003 Intifada against Israel - 100's dead and injured
2000 Manila Bombing, Dec 30,2000
2001 4 Commercial airliners hijacked, 250+ murdered
2001 World Trade Center attacked, 2800+ murdered
2001 Flight 93 murders
2001 Pentagon attacked, 180+ murdered
2002 Reporter Daniel Pearl, kidnapped and murdered
2002 Philippines American missionary, Filipino nurse killed
2002 July 4, El Al attack Los Angeles LAX, several murdered
2002 Bali bombing - 200 dead, 300 injured
2002 Yemen, French Oil Tanker attacked
2002 Marines attacked / murdered in Kuwait
2002 Washington D.C. sniper
2002 Russian Theater attacked, 100+ dead
2002 Nigerian riots against Miss World Pageant, 200 dead, dozens injured
2002 Mombasa Hotel Attacked, 12 dead, dozens injured
2002 Israeli Boeing 757 attacked by missiles, fortunately no one injured
2002 August Hotel bombing in Jakarta, Indonesia. 12 dead, dozens injured.
2003 Rusian concert bombing
2003 Phillipines airport and market bombing
2003 Foiled SAM plot in the USA
2003 UN Baghdad HQ Bombing
on and on and on and on their terrorism has gone .........

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================= TOTALLY IGNORED BY THE SUPREME COURT ================

[GOP Poet]

ping for later

[DustyMoment]

Krauthamer makes a good point. I continue to have misgivings about this Court, Roberts and Alito notwithstanding. I have been trying to withhold any conclusions about whether or not we actually got conservative justices, or just another bill of goods. While the jury remains out, IMO, on a conclusive decision about the Court, I have reason to believe that there is more bill of goods there, than reliable conservatives. But, I'm still watching them closely.

[Dr. Scarpetta]

[conservatism_IS_compassion]

While the jury remains out, IMO, on a conclusive decision about the Court, I have reason to believe that there is more bill of goods there, than reliable conservatives. But, I'm still watching them closely.

You can never be certain how history will play out; for example Reagan thought O'Connor was a reliable conservative. But I have seen no indication yet that Roberts and Alito are anything less than the real thing. The trouble is that in picking up Roberts we lost Rhenquist, and in picking up Alito we lost the Dr. Jekyl half of O'Connor. At this point the oldest three justices are liberals, and only one liberal is younger than Scalia.

It's disappointing that none of the liberals, and not even the swing vote Kennedy, retired at the start of July. Well, maybe next year. One more would make an enormous difference, and two would be almost be comfortable. As long as the nominees resemble Roberts/Alito rather than Kennedy, O'Connor, or Suder. Not to speak of Earle Warren or William Brennan, of course . . .

[LibLieSlayer]

CJ Roberts had to recuse himself due to hearing this case in a lower court. The rest of the justices you mentioned being worried about voted to protect Executive Powers and to protect America.

It was the 5 LIBERAL justices that voted against American Security. We need more justices like Alito and Roberts to replace the Evil that sits in the 5 seats voting with al qaeda.

LLS

[nuconvert]

Bump

[AdvisorB]

He's optimistic it's over too!

[RetSignman]

I agree with Charles, that this decision by the 'robed ones' is a terrible one but, as one who looks at a glass half full, I believe this may be the death knell for the democrats when the debates begin in Congress.

If they agree with the decision of the court, they will also have to agree that the terrorists should be granted full rights of our courts and full rights of the Geneva accords. The liberals/socialists, are already on record numerous times that they are against this war and now they will have to go on record that they are FOR terrorists rights. They will have no choice, they are bound by the far lefts game plans if they are to be re-elected (their thinking).

They have sold their soul to the monied socialists who have supported them and they will harvest the bitter fruit of that decision.

Let the debate begin.

[goldstategop]

To stop judicial arrogance, judicial review will have to abolished.

(The Palestinian terrorist regime is the crisis and Israel's fist is the answer.)

[Inwoodian]

Minor point but aren't 1860, 1940, and 2000 the first years of decades?

[dvwjr]

No. 1860, 1940 and 2000 were the last years of the 1850s, the 1930s and the 1990s. The reason? There was no year "Zero". So the first "year" spanned from Year 1AD to Year 2AD. That means year 10AD was the last year of the 'first' decade in the AD calendar.


dvwjr