Nothing so well illustrates the essential asymmetry of this country's worldwide struggle against terrorism than last week's 5-to-4 opinion out of the U.S. Supreme Court. The enemy is fighting a war; we are litigating a plea.
Throughout the sleepy Nineties, we dealt with two - two! - earlier and incomplete attacks on the World Trade Center not as the barbaric acts of war they were, but as isolated matters for the criminal justice system to deal with when and if it could. While we slept, the enemy plotted. We paid the bloody price for our obtuseness - in thousands of innocent lives - on September 11, 2001.
Now we're proceeding with great deliberation down the same blind alley.How describe this latest opinion from the high court? It's not easy to get a handle on this decision for, against or maybe just vaguely about the exercise (or paralysis) of the president's wartime powers. Here is how His Honor Anthony M. Kennedy - heir to the equally vacuous Sandra Day O'Connor's swing vote on the high court - "explained" what his majority opinion means, or rather doesn't mean:
"Our opinion does not undermine the Executive's powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch."
But doesn't this majority opinion de-commission or at least disable the system of military courts that the chief executive put in place, and Congress repeatedly reformed in order to meet the court's earlier objections?
Like the rest of Mr. Justice Kennedy's majority opinion, the answer to that question isn't clear. In the way of those who, when asked for a little simple clarity, do little but repeat their original non-sequiturs only in a louder voice, Justice Kennedy declaims: "It bears repeating that our opinion does not address the content of the law that governs petitioners' detention. That is a matter yet to be determined."
But when? For this is the third time in four years - or is it the fourth time in three years, and does it matter? - that the high court has left the question of how or if to try enemy combatants up in the cloudy air. What are the other branches of government, or even the lower courts, let alone our troops in the field, now to do with these detainees and future ones? The weightless burden of the court's confused and confusing guidance on this subject might be summed up as: To Be Determined.
Each time the Supreme Court has ruled against this system of trying enemy combatants, lawful or unlawful, Congress and the executive - at the court's explicit behest - have moved to meet its objections, only to be told once again that the tribunals still don't pass constitutional muster.