the meaning of Hamdan | Main | "the objectivist v. the constructivist"

July 02, 2006

more on spinning Hamdan

The scramble that I predicted last Friday--to fix the meaning of Hamdan--has begun. The Post's headline on Saturday read, "GOP Seeks Advantage In Ruling On Trials: National Security Is Likely Rallying Cry, Leaders Indicate." Just as I suspected, there have been efforts to link the Supreme Court's ruling against Bush to the New York Times' decision to publish national security leaks. "It will be worse for the Democrats to be seen as favoring the terrorists than favoring the New York Times," says one talk-show host.

The administration will want the following to be the popular interpretation of Hamdan: Five justices of the Supreme Court (a bunch of lawyers) found various technical grounds (including treaties negotiated by foreigners) to make life more difficult for the military. Congress now has a duty to support the Commander in Chief by creating military tribunals by statute. In the future, presidents will have to cross their t's and dot their i's in cases very similar to Hamdan. But in cases with significant factual differences from Hamdan, they can go ahead and act unilaterally again, and the Court ought to rule for the executive.

That reading of the case would be very bad for majoritarian democracy, the rule of law, and limited government--values of special concern to principled conservatives. (See, for instance, Patriots to Restore Checks and Balances). Just as true conservatives should want to restore the balance of powers, so partisan Republicans should see the importance of reimposing checks on the executive branch--otherwise, a Democratic president may use federal agencies to suppress rights that they value.

In my opinion, it's a rhetorical mistake for Members of Congress to emphasize their own prerogatives, as Senator Spector did by saying that from now on decisions will be made by Congress, "because it's our constitutional responsibility." That sounds like a matter of turf--and Congress is none too popular. I'd rather hear that the Court required us, the American people, to make difficult decisions about how the United States shall handle captives in the current struggle. Such decisions cannot be made by presidential fiat but must be debated openly, because they are our responsibility. Because Congress has the formal power to pass legislation, we must follow the Congressional debate, deliberate, express our views, and vote accordingly in November. That, after all, was how the framers intended us to govern ourselves.

Posted by peterlevine at July 2, 2006 02:10 PM


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