"Hamdan" and the Law
by George Liebmann
 No one reading the Supreme Court opinions in the Hamdan case can regard the
result as inescapable. Justice John Paul Stevens’ circumvention of Congress’
attempt at jurisdiction-stripping is not convincing. But the court is not
wrong to require clear statement when what is involved is habeas corpus and
when the legislature mandates results in pending cases. Given the World War
II cases, the opinions imposing court martial and Geneva Convention
restrictions on military commissions also could have been written the other
way.
But, as every one-time military recruit knows, the United States has tried
to have its military obey the Geneva Conventions, and the Articles of War
incorporate them. Since the protests of the Declaration of Independence,
there has also been a prejudice against tribunals which make up their own
procedures.
Justice Scalia’s dissenting opinion in the Rasul case demonstrated that the
present court has innovated in regulating treatment of foreign prisoners.
But the administration has renounced restrictions with which earlier
administrations complied in dealing with combatants: it has denied captives
even inspection of prison camps by the Red Cross. It ‘disappeared’ captives
by initially refusing to disclose their identity and by maintaining of
secret foreign places of detention and, it is said, torture. Since the cases
during the Second World War, the premature downfall of the British and
French empires has taken place, fuelled in both instances by civilian
outrage against abuses and a fear that arbitrariness abroad would transform
itself into arbitrariness at home.
The Court’s refusal to defer to the Executive occurs against a background:
challenged policies were adopted against the advice of General Colin Powell;
William Taft IV, former general counsel to both the Defense and State
Departments; and the general counsels and judge advocates of the uniformed
services. They represented the judgment not of experts but of a group of
lawyers and appointed officials whose combined military experience compares
unfavorably with that of the Admiral in H.M.S. Pinafore. The Administration,
with respect to both citizens and aliens, has ‘pushed the envelope’ on the
premise that any restrictions fetter the ‘war on terror’. Deference is not
accorded to those not entitled to deference.
Even conservative justices, appointed in reaction to judicial interference
with state legislation, are mindful that the courts have a legitimate role
in supervising ‘corrective justice’ and maintaining fair procedure.
Too many in the administration have succumbed to the siren song of those
urging overthrow of the governments of Afghanistan, Iran, Iraq, Saudi
Arabia, and Syria. They come from a student generation who, as Archibald Cox
once said, "justify the use of devious, obstructive or forcible means of
imposing one’s will on others by referring to some passionate belief in the
righteousness of one’s objectives." The threat of WMD terrorism has been
with us since the dawn of the atomic age, but hitherto it has been addressed
in the calm way delineated by Vanevaar Bush in his Modern Arms and Free Men
in 1952, not by promoting public hysteria and the derangement of free
institutions.
A large question must be asked of Republican senators: will they, at last,
unlike the administration, abide by advice from the experienced military?
One cannot picture the Eisenhower, Ford or Reagan administrations, or one
headed by Sen. Robert Taft, being careless about procedure, expert advice,
or congressional relations. Clear thinking about terrorists is not fostered
by regarding them not as enemies or criminals, but as sub-humans.
The late Philip Kurland observed that the erosion of federalism and of
congressional power left us "not with substantive limitations against
governmental tyranny but with procedural ones..the rule of law [which]
requires that government not act except according to preestablished rule,
[and] that it apply the rule according to preestablished procedure."
The real "Republicans in Name Only" are, as Sen Chuck Hagel and others have
said, those who repudiate limits on government; who forget that tens of
millions of Americans have vivid family memories of abuses by not only the
Gestapo and NKVD but southeast Asian communists, Mexican federales, Irish
black and tans, and Italian Caribinieri.
Too many ignore the warning of Justices Frankfurter, Jackson and Roberts in
an opinion in 1946 inspired by the abuse of German emergency powers: "Evil
men are rarely given power; they take it over from better men to whom it had
been entrusted".
George Liebmann is a lawyer in Baltimore, Maryland.
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