Clausewitz, and probably every military theorist since, has spoken of the fog of war -- the difficulty of telling what's happening in the field when you're in the midst of battle. Leave it to the Supreme Court of the United States to wrap war in a fog of law, too.
Sandra Day O'Connor has left the court but, alas, she didn't take her foggy jurisprudence with her. Her swing-vote, neither-here-nor-there, wait-and-see, let's-put-off-the-essential-questions kind of law still hovers. For the court now has emitted a fragmented opinion against the use of military tribunals in wartime, or at least the kind of military tribunals that were to be used at Guantanamo. In their place, the court leaves . . . mainly a vacuum.
That vacuum is being filled for the moment with a lot of speculation about just what those in charge of defending the country are supposed to do now. Abandon all hope, ye who would look for clarity from this Supreme Court.
This time the decisive vote for indecision was cast by His Honor Anthony Kennedy, who didn't join the majority but wrote a separate, concurring opinion in part, doing his modest part to further complicate matters.
Hamdan v. Rumsfeld isn't the worst decision the Supreme Court has ever handed down -- far from it. It's certainly not in the same invidious league as Dred Scott, in large part because it's not as clear. Instead it's so open-ended it should have concluded not with Reversed and Remanded, but To Be Continued.
Even the concept of unlawful combatants -- an enemy who violates the rules of war and is accountable to no government -- may no longer be applicable in American law in any realistic way. Every terrorist, every saboteur, every spy or conspirator who scrupulously avoids attacking military targets and limits his assaults to innocent civilians may now be entitled to the equivalent of prisoner-of-war status with all the rights and privileges appertaining to. Or maybe not. That's not clear, either.
Could the German soldiers who donned American uniforms during the Battle of the Bulge to misdirect GI convoys and generally sow confusion have been summarily executed if Hamdan v. Rumsfeld had then been the law of the land? Would the Nuremberg Trials -- military tribunals -- have been constitutional? And what about many of the measures taken during the Civil War against Confederate spies and raiders?
The administration now has been given a menu of alternatives to these now unconstitutional military tribunals and told it can take its choices. (One from List A, two from List B, as in a Chinese restaurant?) The administration could: