The Supreme Court At War

Children play a game called "opposite day." Whatever someone says is taken to mean the opposite. Some Supreme Court justices have apparently never grown out of their appreciation of this game, to judge by their ruling in the Hamdan case involving military tribunals at Guantanamo Bay.

Last year, Congress (you might have heard of it — it writes the nation's laws) passed a bill signed into law by the president of the United States (he also should be familiar — the nation's commander in chief). It said that "no court, justice or judge" shall have the jurisdiction to consider habeas corpus applications of detainees at Gitmo. It would take a legal escape artist on par with David Blaine to wiggle out of that one, but, sure enough, five Supreme Court justices were up to the task.

The Supreme Court has an important role in our constitutional scheme, but it is not fit to, nor was it ever meant to, render fundamental judgments about matters of war and peace. For that we have the elected branches, primarily the executive, which has the flexibility and the focus to prosecute wars. But today's court knows no bounds.

In writing for the majority in Hamdan, Justice John Paul Stevens ripped off his black robe and beat his chest, declaring to the world, "Stand aside Congress, stand aside Mr. President, you constitutional weaklings. We, the court, can win the War on Terror and will do it with judicial overreaching, tendentious statutory construction and implausible renderings of international law."

The saving grace of Hamdan is that it preserves the option of trying al-Qaida members before military commissions, as long as Congress and the president work to craft the commissions just so. Otherwise, the decision is a disgrace and is a step toward affording members of al-Qaida the full panoply of rights and protections criminal suspects enjoy in the American civil court system.

Or, as Nancy Pelosi put it in a statement hailing the decision, it "reaffirms the American ideal that all are entitled to the basic guarantees of our justice system." That "all" is quite literal, whether someone is a foreigner or an American, an al-Qaida warrior or a shoplifter. Never have enemy fighters — especially fighters belonging to a criminal band with no regard for the laws of war — had it so good.