The best explanation for the Supreme Court's holding that a military tribunal lacks jurisdiction to try suspected terrorist Salim Ahmed Hamdan is not to be found in the Constitution or the cases interpreting it, or in the Court's interpretation of congressional legislation, but in extrajudicial factors.
The Court lacked jurisdiction to hear Hamdan's appeal, but once assuming jurisdiction, it ruled incorrectly that the Geneva Conventions apply to his case. The Court strained, in the first instance, to inject itself in this matter, despite the clear intent of Congress to deprive it of jurisdiction, and it strained to grant Hamdan, a suspected Al Qaeda member, Geneva Convention protections.
Such an unwarranted assumption of jurisdiction by the Court, coupled with its bending over backward to treat a suspected civilian-killing terrorist the protections guaranteed to bona-fide soldiers of Geneva signatories, can only be explained by the psychology of the court's majority.
When learning of this decision, I was reminded of the words of Justice Antonin Scalia in a speech on the growing (and disturbing) influence of international law on our Supreme Court jurisprudence. Scalia's words, even more than his brilliant dissent in this case, contain the key to understanding the mindset of the Hamdan majority.
Scalia said that judges inclined toward the "living Constitution" approach think "there really is a brotherhood of the judiciary who indeed believe it is our function, as judges throughout the world, to determine the meaning of human rights. And what the brothers -- and sisters -- in one country say is quite relevant to what the brothers and sisters in another country say. And that's why I think if you are a living constitutionalist, you are almost certainly an international living constitutionalist."
To grasp the magnitude of the arrogance of the Court's majority in extending Geneva protections to Hamdan, you really need to understand that it had no power to decide this case.
Justice Scalia devoted his entire 24-page dissent to making this point. On Dec. 30, 2005, Congress passed the Detainee Treatment Act (DTA), in which it expressly and unambiguously stripped all courts, including the Supreme Court, of jurisdiction to consider habeas corpus petitions of Guantanamo Bay detainees, such as Hamdan.
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