A war-time precedent

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In stark contrast to Ex parte Quirin -- the 1942 decision that upheld the constitutionality of a military tribunal established to try, and ultimately convict, German saboteurs -- the Supreme Court yesterday issued an appalling 5-3 decision that encroaches on the authority of a president during a time of war. In its ruling against the Bush administration's use of military commissions at Guantanamo Bay, the court imposed an unprecedented restriction on President Bush's prerogatives as commander in chief.

Salim Ahmed Hamdan, a driver and bodyguard to Osama bin Laden, can be detained for the "duration of active hostilities," the court ruled, making note of the threat he poses to the United States. But he will not be tried by military commission. The court contends that the broad authorization passed by Congress shortly after September 11 and the Detainee Treatment Act (DTA) passed in December "at most acknowledge a general Presidential authority to convene military commissions." None of these congressional mandates can, the court concludes, "be read to authorize this commission." Moreover, the court concludes that the military commission is invalid because its "structure and procedures violate both the UCMJ and the Geneva Conventions."

The Justice Department used the DTA as the basis for its argument that Hamdan was no longer under Supreme Court jurisdiction. The DTA specifically prohibits the Supreme Court from hearing "application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." Justice Antonin Scalia sharply criticized the court for undermining the "unambiguous" language of the DTA with legislative history and for ruling against the limitations imposed by the DTA.

Two implications from court's ruling on military commissions are particularly disruptive to the war on terror. First, al Qaeda and other enemy combatants receive the protection of the Geneva Convention, even though al Qaeda is not itself a signatory of the convention. The court does not address this argument; instead, it impairs foreign policy with an interpretation of Article 3 that runs contrary to the administration's interpretation.

Second, the ruling implies that when Congress authorized the president to use "all necessary and appropriate force" to protect America, it did not, in fact, mean precisely that. Thus, as the president's ability to exercise his executive authority has been curtailed, the administration must consider the danger that other necessary programs may be undermined by the same flawed reasoning.

This is an "unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority," as Justice Clarence Thomas wrote in his dissent. The ruling will significantly undercut the president's ability to protect the United States. We believe that, in the long war against radical Islam that is still in its early stages, this is not a leading indicator but a trailing one -- a last gasp of the pre-September 11 mindset.