The Outrage of Hamdan
By Mark R. Levin

Congress and the Court are systematically stripping the presidency of war-making powers. Congress demands that the president get court approval beforeing intercepting enemy communications (we call that intelligence gathering) and the Court demands that the president get statutory support from Congress before he can use military tribunals to try terrorists.

And yet, neither Congress nor the Supreme Court have any explicit constitutional authority to make these decisions. Congress can cut-off funding for the war or any aspect of it, which it has not; and the judiciary’s only role in these matters is to defer to the president, who has explicit and broad authority under the Constitution as the commander-in-chief.

Today, the Court has taken a giant new step in its usurpation of explicit presidential authority. The battle against terrorism is being fought as much in our courtrooms as on the field in Iraq and other places — where the likes of the ACLU and activist judges will set policy in contravention of the Constitution.

Congress and the courts are conferring rights and privileges on terrorists. They are conferring constitutonal protections on the enemy. They are granting the enemy jurisdiction in our civiliam courts. They are extending the Geneva Conventions to an enemy that is specifically excluded from those protections.

I wrote an entire book on the subject of the Supreme Court, and how it’s destroying America. And that’s exactly what it’s doing. In 2004, the Court said, in two cases — Rasul and Hamdi — for the first time in our history, that unlawful enemy combatants — that is, terrorists who themselves refuse to comply with the rules of law — have a legal right to access to our federal civilian courts and can file habeas corpus petitions there. That means they can ask a federal judge to determine whether their detention is proper. In the past, the Supreme Court refused to grant such access to our courts. And as I wrote at the time, this is a slippery slope. Having broken down the wall of restraint that had traditionally been recognized by the Court, there appears to be no limit anymore on the judiciary’s role in second-guessing the commander-in-chief. And that’s exactly what happened today.

The Supreme Court said today that in exercising his constitutional authority, the president had to comply with congressional statutory mandates. I don’t believe the establishment of these tribunals violate any statute, but more to the point, since when does a statute trump the Constitution? Since never.

Let’s look at the relevant Geneva Convention. First point – since when does a party that has NOT signed a treaty, and does not comply with a treaty, become a part of such a treaty? The Geneva Convention relating to the treament of prisoners of war provides, at Article 4, that —

“A. Prisoners of war … are persons belonging to one of the following categories, who have fallen into the power of the enemy:

“1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

“2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this terrirory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

“(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.”

The purpose of this language is to make clear that NOT every combatant is covered by this treaty, i.e., that in order to receive the Convention’s protections, combatants must accept and comply with basic rules of war. Any literate person should understand this.

Well, the activist Supreme Court majority in Hamdan decided to ignore this language. Instead, it looked to “Common Article 3,” which has nothing to do with the current war. It requires, as an initial matter, that the conflict be not be of an international character. But the war on terrorism clearly is of an international character. Are the justices blind to the numerous known terrorist cells and conflicts throughout the world?

After rejecting the jurisdictional restriction of this article, the Court then went ahead and applied it to unlawful enemy combatants. That is to say, that terrorists detained by the U.S. “shall in all circumstances be treated humanely” and there shall be no “outrages upon [their] personal dignity, in particular humiliating and degrading treatment.”

The author of this intellectually dishonest opinion is John Paul Stevens. Stevens did something very similar in the earlier Rasul case in which he played word games with “jurisdiction.” In Rasul, the relevant statute provided that a writ of habeaus corpus may be granted by a federal judge within their own jursidiction, meaning within their judicial district. Stevens twisted that language to mean that a federal judge’s jurisdiction extends to any terrirtory over which the U.S. exercises complete control, i.e., Guantanamo Bay — a military base located in a foreign country. In doing so, Stevens also reversed over 50-years of precedent. In Johnson v. Eisentrager, the Court held it that alien combatants did not have access to U.S. civilian courts.

Today the Supreme Court’s majority trashed the Geneva Conventions, trashed Supreme Court precedent, and trashed the Constitution. But it did succeed in expanding its own authority and the ability of the enemy to conduct its war against us.