By Charles Krauthammer
Friday, July 7, 2006; Page A17

1861. 1941. 2001. Our big wars -- and the war on terrorism ranks with the big ones -- have a way of starting in the first year of a decade. Supreme Courts, which historically have been loath to intervene against presidential war powers in the midst of conflict, have tended to give the president until mid-decade to do what he wishes to the Constitution in order to win the war.

During the Civil War, Abraham Lincoln suspended the writ of habeas corpus -- trashing the Bill of Rights or exercising necessary emergency executive power, depending on your point of view. But he got the whole troublesome business done by 1865, and the Supreme Court stayed away. (the legal repercussions of which are still being felt today, and not for the better in many ways)

During World War II, Franklin Roosevelt interned Japanese Americans. He, too, was left unmolested by the court. But Roosevelt also got his war wrapped up by 1945. (Yes, and that was an exercise in institutionalized racism.. you didn't see any americans of german or italian descent being locked away, did you? It wasn't right then and it isn't right NOW. How is this point an argument? Retard.) Had the current war on terrorism followed course and ended in 2005, the sensational, just-decided Hamdan v. Rumsfeld case concerning military tribunals for Guantanamo Bay prisoners would have either been rendered moot or drawn a yawn. (except for the glaring reality that the 'War on Terror', redubbed 'The Long War' is the same as 'The War On Drugs'.. essentially unwinnable through military means.)

But, of course, the war on terrorism is different. The enemy is shadowy, scattered and therefore more likely to survive and keep the war going for years. (OMFG, we agree on something?) What the Supreme Court essentially did in Hamdan was to say to the president: Time's up. We gave you the customary half-decade of emergency powers, but that's as far as we go. From now on the emergency is over, at least judicially, and you're going to have to operate by peacetime rules. (No, just operate WITHIN THE LAW as written. Wartime does not give you carte blanche, and plus no declaration of war has even been signed or tendered)

Or, as Justice Anthony Kennedy, the new Sandra Day O'Connor, put it, Guantanamo (and by extension, war-on-terrorism) jurisprudence must henceforth be governed by "the customary operation of the Executive and Legislative Branches." This case may be "of extraordinary importance," but it is to be "resolved by ordinary rules." (heaven forbid the US operate under the rule of law.)

All rise: The Supreme Court has decreed a return to normality. A lovely idea, except that al-Qaeda has other ideas. The war does go on. One can sympathize with the court's desire for a Harding-like restoration to normalcy. But the robed eminences are premature. And even if they weren't, they really didn't have to issue a ruling this bad. (The war goes on, so for as long as this idiotic conflict continues, the executive branch is to be given imperial powers devoid of the checks and balances instituted to protect the nation as a whole? What brilliant logic! Let's see, the war on drugs has been going for about 40 years... )

They declared illegal President Bush's military tribunals for the likes of Salim Ahmed Hamdan, Osama bin Laden's driver and bodyguard. First, because they were not established in accordance with congressional authority. And, second, because they violated the Geneva Conventions.

The first rationale is an odd but fixable misreading of congressional intent. The second is a grotesque and unfixable misreading of the Geneva Conventions. (No, their internment as "enemy combatants" which conveniently skirts ANY kind of law, be it international or US, and being held outside of the mainland USA guarantees anything could be done to them. That's morally right?)

The court feels that the president slighted Congress by unilaterally establishing military commissions. What is odd about this solicitousness for the powers of the legislature is that Congress, which is populated entirely by adults, had explicitly told the judiciary just six months ago that when it comes to Guantanamo prisoners, the judiciary should bug off. (.. and it wasn't right, or legal, then either. Congress finally came to its senses, probably aided by Bush's horrible poll numbers. Wtf is your point?)

The Detainee Treatment Act in December 2005 not only implicitly endorsed what the administration was doing with prisoners, it explicitly told the judiciary to leave the issue to Congress and the president to resolve, as they have historically.

The court's wanton overriding of Congress and the president is another in a long string of breathtaking acts of judicial arrogance. (the court is one of those pesky checks and balances to a tripartite system. If you remove one, the 3 pronged system becomes overweighted on one side. That's the point of it.) But it is fixable. The Republican leadership of the Senate responded to the court's highhandedness by immediately embarking on writing legislation to establish military tribunals. (of course they did, and the judiciary will rule on the legality of it and probably shut it down too)

The unfixable part of the Hamdan ruling, however, is the court's reading of Common Article 3 of the Geneva Conventions. The Geneva Conventions, which were designed to protect civilian populations and those combatants who respect them, were never intended to apply to unlawful combatants, terrorists of the al-Qaeda kind. The court tortures the reading of Common Article 3 to confer upon Hamdan -- and by extension the man for whom he rode shotgun, bin Laden -- the kind of elaborate legal protections that one expects from "civilized peoples." (The geneva coventions apply to ALL prisoners of war. So, in this WAR on terror, are the enemy not therefore POW's? Not to this man. He wants it both ways. It's either a WAR, or it isn't. Make up your mind. This is exactly how they skirted the law in the first place)

This infinitely elastic concept will allow courts to usurp from Congress and the president the authority to fashion the procedures for military tribunals -- an arrogation that mocks the court's previously expressed solicitousness for congressional authority. (I believe the courts took issue with the aforementioned application of the Geneva conventions as it applies to conflict, and rightly so you idiot.)

But no matter. Logic has little place here. The court has decreed: There is no war -- or we will pretend so -- and henceforth it shall be conducted by the court. God save the United States. (This honorable court can fend for itself.)
The courts save your ass, because you obviously have no regard for your own rights and those of your fellow citizens. How stupid do you have to be to not have any interest in your personal civil rights?

Durrrrrrrrr that's a neocon for you.