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Hamdan and the Fate of the Nation (No Kidding)

SCOTUS today handed down (and I mean down, from unassailable moral heights) the much-anticipated Hamdan decision. The result was predictable given previous pronouncements in Hamdi and Rasoul. However, one cannot help but reflect on the implications of this ruling that go beyond the struggle against terrorism.

A 5-3 majority (Roberts not voting) ruled that the military tribunals set up by the Bush Administration to deal with the “enemy combatants” found in the field in Afghanistan were a violation of US and international law. Conservatives assail the majority decision because it appears to flaunt a clear Congressional intent to empower the President to act as he deemed necessary. Also, the Court took the case despite a statute designed specifically to strip it of jurisdiction. Liberals, in turn, celebrate the decision as a brake on an overzealous executive and a validation of basic human rights. Liberals are also scurrying to write other complaints because the wording of the decision calls into question all aspects of the Gitmo situation, including interrogation techniques (aka torture).

At the risk of drifting into hyperbole, I’d say this case is a perfect illustration of what is wrong politically with postmodern America. First, you have an imperial judiciary acting without shame. Congress passed a statute unambiguously stripping the Supreme Court of jurisdiction in habeas corpus cases like this one. The court ignored that, taking the case anyway. They then brutalized precedent and willfully misread another statute to claim that POTUS exceeded his authority in setting up the military tribunals.

But wait? What was that about jurisdiction stripping? Indeed, when Congress really gets mad they can, under Article III of the Constitution, legislate limits on SCOTUS jurisdiction. But why would they do that? Under what circumstances would we want to suspend the power of judicial review altogether? Isn’t it essential to hear what the judiciary has to say on a disputed matter? Jurisdiction stripping is a bad move, but one that is brought up increasingly in Congress.

Why? Because Congress is frequently thwarted by the imperial judiciary and can’t seem to find the spine to address that constitutional anomaly. The majoritarian principle that lends congress its legitimacy is only operative when the court gives it the nod.

Why does Congress sit idly by while it is emasculated? Because there is no political will in the electorate for radical changes. One does not get reelected by calling for radical change. We the people bitch and moan about the status quo while reelecting incumbents at an unprecedented rate, if we go to the polls at all. We have grown accustomed to judicial pronouncements.

But don’t we have a free press? They are certainly free to harangue and proselytize. What legitimacy is there for a press that has openly declared partisan war on this administration? If Bush is in favor of the FMA, the NYT reports his intent to intern all homosexuals into gulags. If raises a finger to investigate suspicious activity, its McCarthyism. Outside the chattering classes, who is listening anymore? When the NYT reports that Gitmo detainees are being tortured, it’s met with yawns. Our free press has called wolf too many times.

This abdication of professionalism and public interest is a terrible calamity considering the bizarre behavior of Bush. Hamdan is only here because this administration thought it wise to indefinitely detain foreign militants in an offshore prison. The legality of that move is unquestionable by people not on the Supreme Court, but the wisdom is lacking. Bush has invited the questioning and ought to have known these guys would find their way into sympathetic American courts.

So we are left to reckon with Hamdan. It’s great that this man and others like him will have their cases fairly adjudicated. It’s great that this suspect activity will be drawn out of the shadows a little. It will help bring us the day when there will be no one unjustly held at Gitmo and that stain will be removed from the American conscience. It’s just too bad that we had to sacrifice the rule of law to get there.

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This page contains a single entry from the blog posted on June 29, 2006 12:56 PM.

The previous post in this blog was The Male Roe?.

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