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thedrifter
04-01-06, 08:55 AM
Terrorists and the Supreme Court
Will the Justices defer to the political branches on war powers?

Saturday, April 1, 2006 12:01 a.m. EST

Mark the calendar for late June, when the U.S. Supreme Court is expected to rule in Hamdan v. Rumsfeld. That's the Guantanamo case, heard by the Court this week, in which Osama bin Laden's former driver argued that the Bush Administration's plan to try him in a military commission is illegal.

The Court's opinion in Hamdan bids to be a turning point in the war on terror. If the Administration wins, the President will have an important tool--used by Washington, Lincoln and FDR--with which to fight the enemy. If it loses, watch for a new chapter in those al Qaeda handbooks that instruct recruits in how to game the West's legal system if they are captured.

The outcome of Hamdan appears to be more of an open question than it should be in the Supreme Court, whose sense of self-importance could lead it to conclude that it can conduct the war on terror better than the executive branch. Ruling against military commissions would go against a more than 200-year tradition in which the Court defers to the executive branch on matters of national security.

It doesn't help that Chief Justice John Roberts recused himself because he was on the appeals-court panel that unanimously rejected Hamdan's arguments last year. Justice Anthony Kennedy--whose record on terrorism cases to date is squishy at best--could cast the deciding vote, and he gave hints in Tuesday's argument that he was skeptical of the government's position.

On the eve of the oral argument, another Justice, Antonin Scalia, got into trouble with the press, which demanded that he recuse himself when it was reported that he told a Swiss audience a few weeks ago, "I'm not about to give [a Guantanamo detainee] who was captured in a war a full jury trial. I mean it's crazy."

Justice Scalia needn't recuse himself, because he didn't comment directly on this case. He's also right that it is crazy, and even the liberals on the Supreme Court are unlikely to mandate regular criminal trials for enemy combatants. But that's the not-so-subtle subtext of what critics are demanding. If military commissions are out of bounds, what else is left? That leaves the civilian criminal-justice system or courts-martial, which operate under similar rules and which the Geneva Conventions require for POWs. Illegal enemy combatants--who wear no military insignia and deliberately target civilians--have never been accorded such treatment.

Civilian courts have had some success in trying terrorists since 9/11, and they can be a useful tool in limited cases. Witness the Arab-American student who was sentenced this week to 30 years in prison for plotting with al Qaeda members to assassinate President Bush and hijack airplanes. The plea bargains reached in the cases of "American Taliban" John Walker Lindh and the al Qaeda cell operating outside Buffalo are other examples.

The counterexample is the "20th hijacker" circus, a k a the trial of Zacarias Moussaoui. He was indicted more than four years ago and has since had a merry time toying with the legal system that is trying to give him a fair trial. His latest gambit in his bid for the death penalty, and presumably martyr status, was to announce this week that he and shoe-bomber Richard Reid had been planning to hijack a fifth airline on 9/11 and fly it into the White House.

Hamdan and other Gitmo detainees captured on foreign battlefields fall into a special category. The evidence against them often comes from intelligence sources that can't be shared in open court without jeopardizing lives or clueing the enemy into what we know. The rules governing military commissions allow courts to hear and evaluate such evidence, in secret if necessary. The attorneys for the defendants have security clearances.

This Supreme Court has done a pretty good job so far of restraining itself in the war on terror. Its 2004 ruling in Hamdi upheld the authority of the commander-in-chief to detain enemy combatants. While it also ruled that detainees have the right to challenge that designation, it properly put the burden on the petitioner to prove the government wrong. The Administration moved promptly to set up status-review tribunals.

The High Court's Rasul decision was more problematic, in that it opened the door for a flood of litigation by Guantanamo detainees. But it had the positive effect of prodding Congress to pass the Detainee Treatment Act, which consolidated all the Gitmo cases in the D.C. Circuit Court of Appeals and limited detainees' use of habeas corpus. The Detainee Treatment Act is part of Hamdan, and the Court could end up striking it down on grounds that Congress can't limit the Court's jurisdiction on Constitutional questions. But surely that is open to interpretation--Congress didn't abolish habeas corpus for detainees--and the Court might well invite a backlash if it starts overruling Congress on war powers.

If the Administration loses in Hamdan, it may have no choice but to forget about trying terrorists in any court of law and instead detain them until hostilities end, as the law of war permits. Somehow we don't think that's the result that legal organizations and human-rights groups intended when they filed more than three dozen friend-of-the-court briefs against the U.S. in support of the al Qaeda operative.

Every wartime President has had to strike a balance between protecting civil liberties and national security. Whether the tradeoff was proper can only be known after the conflict has ended. Considering the all-too-real threat from dirty bombs, anthrax and other weapons of mass destruction that can kill hundreds of thousands, this Administration has done a notable job of protecting liberties overall. In any case, its policies and methods are answerable to the voters in the way that Supreme Court judgments are not. Hamdan is a case where the Justices would do well to defer to the elected branches of government.

Ellie