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The Supreme Court vs. the U.S. Constitution By: Matthew Woessner
FrontPageMagazine.com | Tuesday, October 03, 2006


By extending Geneva Convention privileges to enemy combatants, the Supreme Court of the United States has dealt a serious blow to the Constitution.  However, while most of the court’s critics focus on the impact such a ruling may have on the trial and interrogation of alleged terrorists, the real danger lies in the majority’s implicate assertion that even in matters of war the justices’ private morality trumps the rule of law. In the case of Hamdan v. Rumsfeld, the court not only ignored a legal directive to drop the case, it practically rewrote a section of the Geneva Convention, forcing the government to abide by obligations to which neither the executive, nor the legislative branches had ever given their consent.  This irresponsible use of judicial authority is a far greater threat to democracy than the trial of foreign nationals captured on the battlefields of distant lands. 

Under the laws of war, as outlined by the Geneva Convention, all soldiers are expected to abide by a code of conduct designed to protect civilians from the ravages of combat.  As a reward for conducting warfare honorably, the Geneva Convention entitles lawful combatants to relatively good treatment when captured by the enemy.  Should any questions arise as to their conduct, either before or after their capture, lawful combatants are entitled to a prosecution only by a military court marshal, which much like a civilian trial, offers considerable protections to the accused. 

Concluding that members of Al-Qaeda had violated nearly every provision of the Geneva Convention, the President ordered that select detainees at Guantanamo Bay were to be tried as enemy combatants, subject to a military commission.  With the option of introducing secret evidence, hearsay and testimony extracted under coercion the military could more effectively identify war criminals without compromising the national security of the United States

After losing in the appeals court, an attorney representing Hamdan asked the United States Supreme Court to hear arguments that his client was entitled to the privileges of a full military court marshal rather than the more restrictive military commission.  On November 7, 2005, the court agreed to consider his request.  

Under provisions of the Detainee Treatment Act of 2005, passed into law nearly three months before the case was argued before the Supreme Court “…no court, justice, or judge shall have jurisdiction to hear or consider -- an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay…” [Emphasis added] Since this provision seemingly stripped the courts of the right to hear the appeal the government filed a motion to dismiss the case for want of jurisdiction. 

At this juncture, the Supreme Court of the United States had basically two options--abide by the provisions of the Detainee Treatment Act, thereby dismissing the case, or strike down the provision as a constitutionally defective limit on the power of the judiciary.  This court chose to do neither.  Instead, arguing that Congress had failed to identify when the jurisdictional change was schedule to take effect, the five-member majority concluded that lawmakers had intended the limit on judicial appeals to apply only to future cases.  As such, they were free to consider the merits of Hamdan’s case without considering if the limit on the judiciary’s power was constitutional.  In other words, they simply chose to ignore an act of Congress. 

Having cynically sidestepped the fact that Congress specifically forbid them from hearing the case, the majority then went on to examine whether Hamdan could legally be tried under a military commission rather than a court marshal.  Even this court, with its propensity to plunge headlong into moral, rather than legal, questions, could not bring itself to argue that members of Al-Qaeda were entitled to the same rights and privileges as uniformed soldiers, captured on a battlefield of war.  As such, they were not entitled to receive military pay, access to tobacco, the right to run a prison camp convenience store or elect their own POW representatives.  Still, unable to resist the temptation to insert itself in a wartime controversy, the five-person majority went on to argue that the Geneva Convention prohibited sentencing under military commissions, because Article III expressly prohibits “The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” While, on the surface this may seem reasonable, the majority actually engaged in a legal slight of hand.  The provisions under Article III of the Geneva Convention are not granted to all persons in all conflicts.  Rather, they apply only to “…case[s] of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties…. ” The term “armed conflict not of an international character” had generally been understood to mean civil wars or domestic insurgencies which could not qualify for full-fledged POW status.  In this instance, the court twisted a passage, affording basic legal protections to soldiers in a domestic insurgency and transformed it into a general protection which covers all combatants, under all conditions, without regard to their status, history or conduct.  

I for one am not blind to the dangers of expansive presidential power, particularly in a time of war.  However, critics of the president ought not to lose sight of the dangers posed by an imperial judiciary who ignores Congressional directives, perverts the meaning of international agreements and constrains the executive’s ability to prosecute alleged war criminals in a manner which preserves America’s national security.  Especially in wartime, the courts must not be permitted to thwart the policies of the Commander in Chief, absent more convincing evidence that his actions actually violate the law.

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Matthew Woessner, Ph.D., is an Assistant Professor of Public Policy at Penn State Harrisburg.


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