The Strange Lament of Hamdan's Critics
(updated below)
The Supreme Court's opinion in Hamdan has really gotten under John Yoo's skin. On Friday he published his second editorial in less than a week condemning the ruling. In his op-ed in the LA Times, Yoo wrote:
Actually, John, what makes this war different is the fact that it's not really a war at all, at least in the traditional sense. There's been no war declaration. There will be no armistice or surrender. We are engaged in a struggle with a group of stateless thugs, and that struggle is likely to continue indefinitely.
Yoo is certainly correct that in the past, the Supreme Court has tended to defer to the executive branch during times of war, only reining in the excesses once the fighting had stopped. And were there any end in sight to the current "war," the Court might well have shown the same deference here. But if Yoo really can't see the difference between this conflict and past conflicts, well, he's pretty hopeless.
Yoo clearly thinks that as long as terrorists pose any threat to the United States, the president's "emergency" powers are operative, and Congress and the courts have no real role to play. For reasons that defy understanding, he thinks that this is an acceptable way for a democracy to function in perpetuity.
Charles Krauthammer agrees with Yoo, but he is at least a little more honest about it. In an op-ed in Friday's Washington Post, Krauthammer wrote:
Krauthammer observes, sarcastically, that "[t]he Supreme Court has decreed a return to normality." Though I disagree strongly with Krauthammer's implication that our laws are mere "peacetime rules," he's essentially right about what the Court did. It stepped in and said 'enough is enough.'
What I don't understand is how Yoo or Krauthammer or the Bush administration, for that matter, failed to anticipate this development. They should have known that this day would eventually come. While it's true that both Lincoln and FDR claimed emergency powers, they did so in the face of truly existential threats to our country. And in both cases, they relinquished these powers at the war's end. It has now been almost five years since the events of 9/11. Neither the Civil War nor World War II lasted that long. How long did Yoo and company really think the Court would sit back and allow the president to disregard our laws? 5 years? 10 years? 50?
Even if you believe the president should have extensive emergency powers--including the power to operate outside of the law--you cannot reasonably expect the Court to recognize a never-ending state of emergency. That's especially true where, as has been the case for virtually the entire "war on terror," there is nothing preventing our political institutions from functioning as they're intended to. By the standard of past conflicts, we are very far from a state of emergency. Our Capital is not under siege. There is no open rebellion. There has been no draft or effort to mobilize industry. Hell, we're not even on "orange alert," whatever that means.
When everything is business as usual, what possible rationale is there for short-circuiting or bypassing our normal system of governmental decision-making? When it comes to establishing the rules for trying detainees or spying on American citizens, why should the president's opinion take precedence over the opinion of Congress? This is a democracy after all.
Krauthammer describes Hamdan as the latest in "a long string of breathtaking acts of judicial arrogance," a sentiment with which John Yoo would no doubt readily agree. But neither man seems to be even mildly off-put by President Bush's claim to indefinite emergency powers, including the power to disregard long standing criminal statutes. Is judicial arrogance really the problem here?
The Court stepped in because it had to, because the Bush administration had not just claimed temporary emergency powers, but had laid out a blueprint for never-ending executive branch supremacy. If the Court had not stepped in and reasserted the rule of law, the window of opportunity to correct our course might have passed. The Yoos and Krauthammers of the world can complain all they want about the Supreme Court's lack of deference, but on some level they have to know that they brought this on themselves. They provided legal and rhetorical cover for an unprecedented power grab, and in doing so, they badly overreached. Had these guys given even minimal lip-service to traditional concepts such as the rule of law and checks and balances, the Court might not have felt the need to publicly rebuke them. They might have been willing to punt these issues down the road a little farther. But instead the administration and its apologists embraced radical theories of executive power, and they did so openly and unapologetically.
And the result was Hamdan. They have no one to blame but themselves.
UPDATE: I see an anonymous "former senior administration lawyer" agrees with my assessment. Per Newsweek:
Any guesses as to who that anonymous lawyer is? James Comey? Jack Goldsmith? Maybe even John Ashcroft?
The Supreme Court's opinion in Hamdan has really gotten under John Yoo's skin. On Friday he published his second editorial in less than a week condemning the ruling. In his op-ed in the LA Times, Yoo wrote:
The court's decision in Hamdan vs. Rumsfeld ignores the
basic workings of our separation of powers and will hamper
the ability of future presidents to respond to emergencies
with the forcefulness and vision of a Lincoln or an FDR. . . .
What makes this war different is not that the president
acted while Congress watched but that the Supreme Court
interfered while fighting was ongoing.
Actually, John, what makes this war different is the fact that it's not really a war at all, at least in the traditional sense. There's been no war declaration. There will be no armistice or surrender. We are engaged in a struggle with a group of stateless thugs, and that struggle is likely to continue indefinitely.
Yoo is certainly correct that in the past, the Supreme Court has tended to defer to the executive branch during times of war, only reining in the excesses once the fighting had stopped. And were there any end in sight to the current "war," the Court might well have shown the same deference here. But if Yoo really can't see the difference between this conflict and past conflicts, well, he's pretty hopeless.
Yoo clearly thinks that as long as terrorists pose any threat to the United States, the president's "emergency" powers are operative, and Congress and the courts have no real role to play. For reasons that defy understanding, he thinks that this is an acceptable way for a democracy to function in perpetuity.
Charles Krauthammer agrees with Yoo, but he is at least a little more honest about it. In an op-ed in Friday's Washington Post, Krauthammer wrote:
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. 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
Krauthammer observes, sarcastically, that "[t]he Supreme Court has decreed a return to normality." Though I disagree strongly with Krauthammer's implication that our laws are mere "peacetime rules," he's essentially right about what the Court did. It stepped in and said 'enough is enough.'
What I don't understand is how Yoo or Krauthammer or the Bush administration, for that matter, failed to anticipate this development. They should have known that this day would eventually come. While it's true that both Lincoln and FDR claimed emergency powers, they did so in the face of truly existential threats to our country. And in both cases, they relinquished these powers at the war's end. It has now been almost five years since the events of 9/11. Neither the Civil War nor World War II lasted that long. How long did Yoo and company really think the Court would sit back and allow the president to disregard our laws? 5 years? 10 years? 50?
Even if you believe the president should have extensive emergency powers--including the power to operate outside of the law--you cannot reasonably expect the Court to recognize a never-ending state of emergency. That's especially true where, as has been the case for virtually the entire "war on terror," there is nothing preventing our political institutions from functioning as they're intended to. By the standard of past conflicts, we are very far from a state of emergency. Our Capital is not under siege. There is no open rebellion. There has been no draft or effort to mobilize industry. Hell, we're not even on "orange alert," whatever that means.
When everything is business as usual, what possible rationale is there for short-circuiting or bypassing our normal system of governmental decision-making? When it comes to establishing the rules for trying detainees or spying on American citizens, why should the president's opinion take precedence over the opinion of Congress? This is a democracy after all.
Krauthammer describes Hamdan as the latest in "a long string of breathtaking acts of judicial arrogance," a sentiment with which John Yoo would no doubt readily agree. But neither man seems to be even mildly off-put by President Bush's claim to indefinite emergency powers, including the power to disregard long standing criminal statutes. Is judicial arrogance really the problem here?
The Court stepped in because it had to, because the Bush administration had not just claimed temporary emergency powers, but had laid out a blueprint for never-ending executive branch supremacy. If the Court had not stepped in and reasserted the rule of law, the window of opportunity to correct our course might have passed. The Yoos and Krauthammers of the world can complain all they want about the Supreme Court's lack of deference, but on some level they have to know that they brought this on themselves. They provided legal and rhetorical cover for an unprecedented power grab, and in doing so, they badly overreached. Had these guys given even minimal lip-service to traditional concepts such as the rule of law and checks and balances, the Court might not have felt the need to publicly rebuke them. They might have been willing to punt these issues down the road a little farther. But instead the administration and its apologists embraced radical theories of executive power, and they did so openly and unapologetically.
And the result was Hamdan. They have no one to blame but themselves.
UPDATE: I see an anonymous "former senior administration lawyer" agrees with my assessment. Per Newsweek:
"This is an extremely damaging decision for presidential
power," says a former senior administration lawyer, who
asked for anonymity owing to his intimate involvement in
the legal wrangling over prisoner treatment. "And it was
largely a self-inflicted wound." The bitter irony: an
administration determined to expand executive power may
have caused a serious contraction.
Any guesses as to who that anonymous lawyer is? James Comey? Jack Goldsmith? Maybe even John Ashcroft?
posted by A.L. at 11:15 PM
13 Comments:
I wish I shared your confidence regarding the philosophical (vs. legal) underpinnings for the Hamdan decision. Regardless, the final vote was harrowingly (is that a word?) close. As to "how Yoo or Krauthammer or the Bush administration, for that matter, failed to anticipate this development", I believe the term is hubris. Doesn't surprise me at all.
Minor point: WWII lasted from 1939 to 1945 -- six years.
This would have come a lot sooner IMHO had Bushco not thwarted every attempt by others to bring the issue to court. Perhaps the "emergency" was valid for a year or so after 9/11, but certainly not for 5 years.
Minor point: WWII lasted from 1939 to 1945 -- six years.
Yeah, but Pearl Harbor was in December of 1941, so from an American perspective, the war was less than 5 years.
Mr. Hankie, the chimpy you. He loves me and I love you.
All I can say is that if the Dems regain Congress there's a helluvalot of work ahead. Yoo is sounding shrill, Charlie K is beginning to stutter, Bush's take on this leaps right over the decision into some other dimension and I'm thinkin' these are their sane days for God's sake.
What is the real impact of Hamdan on an administration that regularly side-steps Congress and the rule of Law when it suits them… what’s to keep them from also ignoring the Supremes?
If they can stall and keep their secrets long enough to replace one more justice, then Hamdan and all the rest goes away. Game over.
A.L. - check GG's 7/9 post on this topic @ C&L... Arguments sound familiar.
Bush's "War on Terror" ain't no war at all.
For what kind of war does the government seek not to increase taxes but actually seeks to cut taxes???
Terrorists have battled us for decades now: Reagan dealt with them, and even Truman was confronted by them. Yet no president up until now has sought to deny people the rights granted under the constitution. There's no war on terror, for if there were, Bush wouldn't have given up trying to capture Osama Been Forgotten. But Bush likes to claim there's a war on terror, that way, he can feel the power of incarcerating people at Guantanamo forever.
For what kind of war does the government seek not to increase taxes but actually seeks to cut taxes???
This is clearly a war on working Americans, their families, and children. It has nothing to do with protecting anyone and has more to do with looting the federal treasury and generating extreme windfall profits for the oil companies.
The tax-cuts are the "proof" that this is just economic warfare on the middle and lower classes in the U.S.
This is why they need to steal elections - the majority of citizens are not going to support this.
Hi there, A.L., I enjoyed your guest posts over at Glenn's blog, especially the one about Addington's head. I'm still working my way through the Hamdan decision, but a casual glance over Krauthammer's op-ed seemed to contain at least one mistaken or disingenious argument - that the DTA stripped the Supreme Court of jurisdiction. Perhaps Krauthammer bought the false assertion of Graham and Kyl's Amicus brief, since Levin specifically stated the Supreme Court would retain jurisdiction for Hamdan and was never contradicted on this point prior to the bill's passage.
Regardless, I find it amusing that Krauthammer, Yoo and others can bemoan the "arrogance" of the Supreme Court as well as a lack of respect for the separation of powers! Every time I read or hear Yoo, I have to conclude the man's never read The Federalist Papers!
It is alarming to think that what the Yoos and Krauthammers of the world are advocating is little more then a return to monarchy for the US.
Dean writes about the liars Graham/Kyl and their attempted scam. I would call them an embarrassment but I think they are worse than that. Republicans will stop at nothing and lie and cheat at every opportunity. Utterly disgusting.
I think it is was you who addressed this along time ago AL.
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