SCOTUS Gone Wild and the War on Terra?

Adam Liptak of the New York Times said, “John C. Yoo, a principal architect of the Bush administration's legal response to the terrorist threat, sounded perplexed and a little bitter on Thursday afternoon. A few hours earlier, the Supreme Court had methodically dismantled the legal framework that he and a few other administration lawyers had built after the Sept. 11, 2001, attacks.”

Actually when I saw him on the Newshour he seemed petulant. But then sometimes I am just too sensitive for my own good and read much too much into facial, body and verbal expressions. Such a girl I am. But, whether perplexed, bitter or petulant, Yoo, like his legal theories, should be tossed into the trash can that is the resting place for the Unitary Executive.

Ah, if only it were so.

"What the court is doing is attempting to suppress creative thinking," said Professor Yoo, who now teaches law at the University of California, Berkeley. "The court has just declared that it's going to be very intrusive in the war on terror. They're saying, 'We're going to treat this more like the way we supervise the criminal justice system.' "

Well, as someone who works in criminal defense, I would suggest that Mr. Yoo read some of this courts recent criminal decisions and then I would suggest that we all get a firm grip on the Bill of rights folks. Because based on Mr. Yoo’s legal theories I would expect he would be quite pleased. So, what is he talking about?

While in the Justice Department's Office of Legal Counsel from 2001 to 2003, Mr. Yoo helped write a series of memorandums setting out a bold and novel legal strategy to find, hold, question and punish the nation's enemies. The memorandums said the Geneva Conventions do not apply to people the administration designates as enemy combatants. They contemplated the use of highly coercive interrogation techniques. They justified secret surveillance.

The court's decision in Hamdan v. Rumsfeld, Professor Yoo said, may signal the collapse of the entire enterprise. "It could affect detention conditions, interrogation methods, the use of force," he said. "It could affect every aspect of the war on terror."

Well, one could only hope that the rule of law, both domestic and international, would be operative. But, I am not going to get my hopes up.

Speaking of hopes, according to the Times:

He [Yoo] was not overstating his case. True, the decision itself — holding that the government could not try detainees held at Guantánamo Bay, Cuba, for war crimes in a particular way — was narrow, given that it directly affected only 10 men and did not address the administration's broader contention that it can hold those men and hundreds of others without charges forever. And Congress may yet put some or all of the president's programs on firmer legal footing.

But the effect of the decision, constitutional lawyers across the political spectrum agreed, could devastate the administration's main legal justifications for its campaign against the terrorist threat.

"The mood music of this opinion so lacks the traditional deference to the president," said John O. McGinnis, who served in the Justice Department from 1987 to 1991 and now teaches law at Northwestern, "that it would seem to have implications for his other programs."

The administration had built its case in part on a vote by Congress, taken a week after Sept. 11, that authorized the president to "use all necessary and appropriate force" against those who participated in and supported the attacks. The administration has relied on that authorization as legal support for several of its programs.

In 2004, the Supreme Court endorsed a part of this argument, but Justice John Paul Stevens, writing for the majority in Hamdan, was having none of it. There is, he said "nothing in the text or legislative history" of the authorization "even hinting that Congress intended to expand or alter" existing laws concerning military trials.

Be still my heart!

The logic of the ruling and its requirement that Congress directly authorize presidential actions even in wartime has broad implications. For one thing, said Laurence H. Tribe, a law professor at Harvard, it seems to destroy the administration's argument that Congress blessed the National Security Agency's domestic surveillance program when it voted for the authorization.

"That argument is blown out of the water and is obliterated," Professor Tribe said.

If only!

Justice Stevens also took aim at the administration's chief constitutional argument, the one that critics call "Article II on steroids."

Because Article II of the Constitution, among other things, anoints the president as commander in chief, Professor Yoo and other administration lawyers have argued the president can ignore or override laws that seem to limit his authority to conduct war. In the current struggle against terrorism, they argue, the entire world is the battlefield.

Perhaps not any more. Steven G. Calabresi, a law professor at Northwestern and a founder of the Federalist Society, the conservative legal group, said this second argument is also in trouble.

"The court is certainly not embracing the broader Article II power," he said.

Indeed, a footnote in the majority opinion, one sure to be read closely, seems tailored to address these other controversies by rejecting the argument that the president is free to ignore Congressional limitations on his power.

"Conceivably the court had in mind controversies like the N.S.A. terrorist surveillance program" in crafting the footnote, said Curtis A. Bradley, a former Bush administration lawyer who now teaches law at Duke.

Again, one would hope, but don’t get your hopes up too high.

The wholesale rejection of the administration's positions in Hamdan may have its roots in part in judicial hostility toward the memorandums Professor Yoo helped prepare several years ago. The justices in the majority, said Professor McGinnis, "have been so skeptical of a variety of legal interpretations coming out of the executive branch, like the so-called torture memos, that they are not giving the president any deference."

But some justices seemed to leave a door open, suggesting that the decision is not so much a judicial attack on executive power as it is an insistence that Congress, rather than a small group of administration lawyers, must play a leading role in formulating the response to terror.

"Where, as here, no emergency prevents consultation with Congress," Justice Stephen G. Breyer wrote in a brief concurrence that three other justices joined, "judicial insistence upon that consultation does not weaken our nation's ability to deal with danger. To the contrary, that insistence strengthens the nation's ability to determine — through democratic means — how best to do so."

Ah, yes, let’s leave it to the “Rubber Stamp Congress.” See, I told you not to get your hopes up.

But Professor Yoo was not inclined to accept the decision as a triumph of the democratic process. Instead, he saw it as a judicial usurpation of the president's power to protect the nation. "The court is saying we're going to be a player now," he observed ruefully.

Drat that Constitution and its separation of powers. But, don’t fret Professor Yoo, Congress is set to save us from an actual democratic process that the court’s being a player in is just a little too late.

According to the LATimes:

WASHINGTON — Since the 2001 terrorist attacks, President Bush has asserted almost unlimited authority to define the rules of what he calls "a different kind of war." Faced with the Supreme Court's rejection of administration policies on "enemy combatants" Thursday, the White House signaled that it had no intention of backing down.

Meeting the high court's objections required little more than having Congress put its stamp of approval on a system of military tribunals, the White House suggested. And some congressional Republicans quickly agreed.

"The Supreme Court did not require these people to be let go. They simply said, If you want to try them, Mr. President, you need to get Congress involved.' I agree," Sen. Lindsey Graham (R-S.C.), a former military lawyer, told CNN.

"Once we do that," he added, "I think this problem will be behind us."

So, there you have it, “Stay the Course.” And this is because this administration’s way of prosecuting, if you can call it that, the War on Terra is going so well.

And how exactly is the War on Terra against Osama and all things al-Qaeda going? Not well according to Peter Bergen of the Wapo:

Over the past four years, key members of the Bush administration have claimed that al-Qaeda is "on the run" (Donald Rumsfeld and Condoleezza Rice), "disrupted" (George Tenet) or "decimated" (President Bush). At the same time, however, significant terrorist attacks around the world have dramatically increased since Sept. 11, 2001, most of them conducted by militant Islamists. How does one reconcile this apparent contradiction?

A new narrative that purports to answer that question has emerged: Yes, al-Qaeda as an organization is severely impaired, but it has been replaced by a broader ideological movement made up of self-starting, homegrown terrorists who have few formal links to al-Qaeda but are motivated by a doctrine that can be called "Binladenism." Recent examples would include the militants in Madrid who bombed commuter trains in March 2004 and killed 191 people, or the seven terrorist wannabes recently arrested in Miami in connection with an alleged plot to blow up federal buildings. They had embraced al-Qaeda's doctrine of destruction, yet had no ties to the terrorist group.

However, according to five veteran U.S. counterterrorism officials I've spoken with recently, al-Qaeda the organization remains a real threat. One longtime government terrorism analyst points to the four suicide attacks in London last July 7 that killed 52 people as evidence of the organization's resilience. "At a minimum, this was an al-Qaeda-supported operation," the analyst told me. And al-Qaeda's leaders don't seem to be feeling the heat of the "war on terror." On Thursday, Osama bin Laden released his third audiotape in three months, while his deputy, Ayman al-Zawahiri, has appeared on an unprecedented number of videotapes since the second week of June -- averaging one a week.

So while the rapid spread of al-Qaeda's ideology in the past two years -- partly fueled by the Iraq war -- should be of considerable concern, it would be quite wrong to conclude that al-Qaeda the organization is down for the count. Indeed, if the bombings in London are any indication, it may be staging a comeback.

Well, a comeback can’t be a good thing. What ever happened to “Wanted Dead or Alive.” You know fighting them over there so we don’t have to fight them here. Oh, yeah that’s right, Iraq has become a recruitment tool for Osama and all things al-Qaeda.

Well, at the very least last week the Supremes did the right thing in Hamdan.

And as Dahlia Lithwick makes clear the only thing standing between us and a shreaded Constitution is Justice Kennedy.

Liberals had feared, and conservatives had feted, the end of judicial review as we know it, at least until last week's blockbuster ruling in Hamdan v. Rumsfeld proved that bit of conventional wisdom wrong practically before it had become conventional. Predictions of a new era of hands-off judicial minimalism may have been premature.

Yes, we are seeing the expected shift to the political right with the replacement of moderate Justice Sandra Day O'Connor by conservative Justice Samuel A. Alito Jr. But, more significant, the role of swing justice has itself swung from O'Connor to Justice Anthony M. Kennedy. On all the most divisive issues, today's court is now a Supreme Court of One.

Yes, Kennedy, 69 and on the court for 18 years, has inherited the power to decide crucial cases, and this term he showed us what that might mean. In Hamdan, he joined with the court's left wing to invalidate the military tribunals President Bush had concocted for the detainees at Guantanamo Bay, Cuba. And the majority opinion he joined, written by Justice John Paul Stevens, was neither minimalist nor mild: "In undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."

But more crucial, Kennedy has appropriated O'Connor's trick of writing an opinion or a concurrence that goes on to become the law of the land. O'Connor was famous (and not always in a good way) for signing onto an opinion, but on narrower grounds than the four other justices in the majority. The trick is that the justice who decides the case most narrowly speaks for the whole court. And that's how O'Connor imprinted her views on an awful lot of jurisprudence.

And that is the deal, this IS a narrow ruling.

Folks we are in trouble. Because, in the immortal words of our Dear Leader, George W. Bush:

"Our enemies are innovative and resourceful, and so are we. They never stop thinking about new ways to harm our country and our people, and neither do we."—Washington, D.C., Aug. 5, 2004.

What can one say?