Dear Senator Specter,
I am writing to you as the Ranking Republican on the Judiciary Committee. It’s useless to write to Chairman Patrick Leahy, because his views are the same as a minority of the Supreme Court Justices — whatever outcome in any case benefits the Democratic Party is fine with him, regardless of what that does to or with the US Constitution.
You, at least, say that you are interested in accurate analysis of the constitutional issues presented. I’ve read a couple of your books and I must say that your scholarship, except in the area of Scottish law, leaves a great deal to be desired.
But, let bygones be bygones. Today’s issue is the incompetence of the press in dealing with the issue of habeas corpus and its application, or not, to the prisoners at Guantanamo. I’m sure you’ll be hit with questions about that. And it would behoove you to know what you’re talking about, better than the editors at the New York Times, to choose an example not entirely at random.
If, so, read on. Here’s an explanation of that very subject in words of one syllable or less:
The first mistake in the New York Times coverage of this subject is it starts too recently. This is demonstrated by Ms. Greenhouse’s coverage of Hamdan v. Rumsfeld a year ago. She wrote that, “The decision was such a sweeping and categorical defeat for the administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantanamo detainees almost speechless with surprise and delight….” She wrote that there was “no doubt’ that this ruling was “an historic event, a defining moment.” She compared it to US v. Nixon, in 1975. That unanimous ruling that President Nixon must turn over the White House tapes, was followed 15 days later by his resignation.
By comparison, Hamdan has been a tempest in a teapot. All that the Court really ruled in that case was that Congress had not sufficiently acted to create military tribunals to try illegal enemy combatants. Months later, Congress passed the Military Commissions Act, to remedy that lack.
That Act did remove habeas corpus review of the tribunals from the lower federal courts. The New York Times and most other media have assumed that meant no review of the actions of such tribunals. This assumption is a result of failing to read a 26-page, unanimous, Supreme Court decision from 1942, which the Hamdan Court itself recognized was still good law.
The World War II case was In re Quirin, which sought a review of the military tribunal trials and convictions of eight German saboteurs, who came ashore on the East Coast from two German submarines. They came in civilian clothes. They had money, maps, and plans to bomb various war-related facilities. All had been found guilty. Six had been sentenced to death.
One of the saboteurs was an American citizen (brought to Chicago at age of one). Another claimed to be an American citizen. The Court held unanimously that this was irrelevant, since the individuals had acted as illegal enemy combatants, and therefore could be tried as such.
The trial and appeals courts both ruled that this was a military matter, that there was no habeas corpus review available in any normal courts (created under Article III of the Constitution). The Supreme Court unanimously reversed that determination. Then it reviewed the cases on the Law of War. Under that law, which preexisted the Constitution, and incorporated by the federal code of military justice established in 1789, illegal enemy combatants could be tried by military tribunals and executed or imprisoned, without the procedures and constraints which apply to Article III criminal trials.
Had Ms. Greenhouse, or any other reporter, bothered to think about early American history, they should have realized what this meant. The Supreme Court in Quirin referred to multiple examples of the use of military tribunals during wars. The best known examples were the trial and hanging of Nathan Hale by the British in the American Revolution, and the trial and hanging of Major John Andre by the Americans in the same conflict.
It takes only a little current reading to realize that the Hague Convention on prisoners of war, followed by the four Geneva Conventions, carry forward the distinctions that fighters who are not in uniform, not in organized units, and hiding among the civilian population are not entitled to the protections of any of those Conventions, just as they were not protected by the Law of War. Such fighters are consistently called either illegal enemy combatants, or “spies” subject to execution on the spot.
Consideration of the Law of War leads to a better understanding of the most recent action of the Supreme Court, in agreeing to hear a challenge to the Military Commissions Act itself. Though the Court had initially decided not to hear this appeal, and reversed itself to do so, this is not a watershed decision. This time, Ms. Greenhouse was careful not to tout the decision’s importance, as she had with Hamdan a year earlier.
Again, Quirin suggests what the Court is doing, and why. Congress has full power over the jurisdiction of the lower federal courts, so it can change their jurisdiction any time it cares to. Congress can also suspend review by habeas corpus totally in time of war, but it has not done so. And the Supreme Court, unlike the lower federal courts, is established by the Constitution itself.
Therefore, Quirin suggests that the Court will rule unanimously that it has jurisdiction to hear the Guantanamo appeal. Having done that, a divided court, probably 5-4, will rule that Congress has written its new statute on military tribunals in accord with prior Court decisions and with the Law of War, and that the tribunals can continue.
When that decision is issued, it is likely that Linda Greenhouse will publish in the New York Times a hand-wringing article to the effect that the Court has “moved to the right” and that the nation is “in peril.” There will be a matching, hand-wringing editorial. Neither she nor the editors will mention that today’s tribunals offer far more defense opportunities but are logically the same as General Washington’s drum-head trial of Major John Andre, the out-of-uniform, behind-the-lines British contact for Benedict Arnold’s planned betrayal of West Point.
Understanding modern Supreme Court decisions is not rocket science. It does, however, require reading some old Court decisions, and paying some attention to American history. Such reading is, apparently, too cumbersome or tedious, for Ms. Greenhouse, the editors of the New York Times, and a majority of the other media who attempt to cover the decisions of the Court.
In hopes that you read and apply the above information, for your sake as well as for the sake of America, I remain,
Your Obedient (Non-Constituent) Servant,
J. Armor, Esq.