Alexander Hamilton may have been a great statesman and financier, the kind of conservative who is also a visionary, but he was no prophet. At least not in Federalist Paper No. 78, in which he assured voters that the judiciary would always be "the least dangerous" branch of the proposed new federal government.
Learned in the law as he was, Colonel Hamilton could not have foreseen this present Supreme Court, which has vastly complicated the work of both the country's military and its intelligence operatives.
The court began by ignoring Congress' explicit instruction in the Detainee Treatment Act that "no court, justice or judge shall have jurisdiction to hear or consider an 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."
Then the court -- to borrow a phrase attributed to a former governor of Arkansas -- opened a whole box of Pandoras. A five-justice majority of the court proceeded, in Hamdan v. Rumsfeld, to put all plans for military commissions on hold until Congress would agree to re-establish them with new, unprecedented protections for unlawful enemy combatants, including Osama bin Laden's personal driver. Erasing the historic distinction between lawful and unlawful enemy combatants, the court ruled that these military tribunals also violated the Geneva Conventions, even though that treaty applies only to the governments that signed it, and al-Qaida was certainly never a signatory. (Its favored form of justice consists of beheadings on video.)
The Supreme Court's recent rulings in Hamdan and similar cases provide the best illustration yet of the late Robert Jackson's observation that the judiciary is ill-equipped to make foreign policy, especially military policy.
"Such decisions," Mr. Justice Jackson once observed, "are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility . . . ."
No wonder Robert Jackson's stature in law and statecraft grows year by year, decade after decade, as this Supreme Court continues to bear out his warning against an over-reaching judiciary. For the moment it has prevented the country from using military tribunals against a clear and all too present danger like al-Qaida, even though such tribunals go back to George Washington's time.
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