What a victory for the rule of law, eh? The president overstepped his boundaries and stepped on his crank when he tried to set up a mechanism to convict Guantanamo detainees of whatever misconduct he chose. In a nutshell,
the Supreme Court has held that even under his broad war powers, the president does not have the power unilaterally to 1) abrogate the Geneva Convention and/or 2) create military tribunals to try persons whom he can designate without fetter as "enemy combatants."
This is a great result and affirms the limited powers of the executive under our Constitution. Unfortunately, nothing has changed from Mr. Hamdan's point of view. He's still detained, and he still has no idea on whether he will eventually be tried under a military tribunal. That's because the opinion accepts the underlying premise that our nation is engaged in a War on Terror.
There is no War on Terror, and neither can there ever be a real "war," at least within the meaning of the U.S. constitution. Why? Follow me over the flip.
War is defined as
1
a. A state of open, armed, often prolonged conflict carried on between nations, states, or parties.
b. The period of such conflict.
c. The techniques and procedures of war; military science.
2
a. A condition of active antagonism or contention: a war of words; a price war.
b. A concerted effort or campaign to combat or put an end to something considered injurious: the war against acid rain.
Concededly, the secondary definition would encompass the so-called War on Terror, while the primary would not - the War on Terror is against a condition or something considered injurious. Still, waging war is a political tool, not a tool for ensuring that justice is rendered.
Terrorism, on the other hand is defined as
The unlawful use or threatened use of force or violence by a person or an organized group against people or property with the intention of intimidating or coercing societies or governments, often for ideological or political reasons.
As such, it is more properly treated as a crime. As a crime, it would more properly be addressed by the tools inherent in a criminal justice system. Political tools only role would be in assisting in apprehension of the criminal where the traditional criminal justice system is inadequate. For example, using special forces to locate and capture Osama Bin Laden in order to bring him before the court system would be a use of a political tool. Limited and measured war techniques and procedures serve merely as a means to get the criminal before the justice system.
It is in the difference between war and terrorism that the flaw in the Hamdan decision lays.
Even in Iraq, Saddam Hussein is being treated as a criminal, not as a combatant in a war. Yet the SCOTUS has glossed over the real issue in the Hamdan case - How can GW Bush even invoke his so-called war powers in the first place if the so-called war is against a condition as distinct from an actual physical antagonist? All that Hamdan has done is place limits on the president's war powers, limits I might note that have scary ramifications. Under Hamdan, Congress can abrogate the treaty under which the Geneva Convention is law in the U.S. and grant the president the very powers that Hamdan now denies him. Given the current composition of the Congress, this may not be all that far-fetched.
The better ruling would have been to find that the resolution authorizing the use of military force (AUMF) did not rise to the level of a declaration of war by the Congress, and re-affirm that the executive branch has no power to declare war. The president's war powers are much too broad and extensive to concede that they have been triggered just because the executive decides to label a condition as the target of a war.
So while there is good cause to celebrate the slamming of the Unitary Executive, there still remains a lot to be done in making sure that the problem of terrorism be properly characterized so that more precise tools can be brought to bear to eradicate it. Bluntly, waging a "war" may just be too blunt a tool. [Pun intended] Only when we as a nation recognize this can our policy makers get down to the real business of getting a handle on controlling terrorism.