The Madness of Hamdan

Peter Mulhern:

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The Court had no authority to hear the case, both because a statute clearly deprived it of jurisdiction and because the case presented questions no court is competent to address. If the Court was going to ignore these trifling impediments and decide the case anyway it should have issued a laugh track instead of an opinion. The case was utterly without merit.

Nonetheless the Court issued an opinion, a number of them in fact. Five Justices agreed that the President of the United States does not have the power to constitute military tribunals for the purpose of trying terrorists for violating the laws of war.

The irony here is exquisite.

Article III of the Constitution leaves the definition of the Supreme Court’s appellate jurisdiction up to Congress. In the Detainee Treatment Act of 2005 (DTA) Congress very clearly gave the Circuit Court for the District of Columbia Circuit exclusive jurisdiction over Hamdan’s habeas corpus petition. After the effective date of that statute the Supreme Court had no more authority to decide Hamdan’s case than the Arizona Liquor Control Board or the World Court in The Hague.

And yet five Justices have the temerity to use that case as a vehicle for pronouncing that the President is acting beyond his proper authority. Forget the old joke about the parricidal orphan; we have a new definition of chutzpah.

Justice Stevens writing for the Court goes through all kinds of gyrations trying to get around the clear language of section. He breaks out all the tools of statutory analysis including legislative history and uses them to construct a long convoluted argument which is entirely beside the point. Those tools are for discerning meaning where the legislature has been obscure. When Congress makes itself perfectly clear, those tools are useless, and the DTA is perfectly clear.

Justice Stevens’ jurisdictional argument is like a fumbled conjuring trick. It is painfully transparent. There is no plausible justification for the Court to reach the merits in Hamdan. Justice Stevens could have reduced one whole section of his opinion to six words: “We don’t need no stinking jurisdiction.”

But let’s forget about jurisdiction for the moment. What about the merits? Does the President need a permission slip from Congress before he can set up tribunals to try and punish people who wage war against us without regard to any legal or moral restraints? To ask the question clearly is to answer it.

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There is more about this horrible opinion. The Supreme Court ignores the seperation of powers, statutory construction and common sense to reach an opinion that is inexplicable beyond the results desired by a bunch of liberals who are willing to ignore the Constitution and the law. This is really a bad decision. Hopefully Congress can repair the damage and work around the mess made by these justices who need to be replaced sooner rather than later.