This morning I opened the news rag that my two oldest enterprising sons get up at 5:00 AM each day to deliver. I turned to the opinion page to see a nasty political cartoon depicting the demise of the Geneva Convention and habeas corpus thanks to the evil George W. Bush. UC Berkeley Legal professor John Yoo seeks to set the record straight in this article.
Yoo notes that in the face of the newly signed Military Commissions Act, the only ones to whom the Geneva Convention does not apply are those to whom it has never applied and was never meant to apply. Likewise, under this legislation, the only ones that cannot benefit from a writ of habeas corpus are those that have never been able to benefit from such. In both cases, that would be terrorists that we have managed to snag.
The act, which was passed by both chambers of Congress and signed into law by the President, was a direct response to the Supreme Court’s ruling in Hamdan v. Rumsfeld. Yoo says, “Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy.”
And why shouldn’t SCOTUS think it could get away with it? “After all,” Yoo notes, “it has gotten away with many broad assertions of judicial authority before.” But Yoo also places part of the blame for this on the legislative branch, “because Congress is unwilling to take a clear position on controversial issues (like abortion, religion or race) and instead passes ambiguous laws which breed litigation and leave the power to decide to the federal courts.”
But this time SCOTUS simply went too far. Yoo cites the absurdity of applying the Geneva Conventions to non-signatories that fight in ways that exclude them from the provisions of the conventions by definition. Recounting historical precedence, Yoo also says, “Until the Supreme Court began trying to make war policy, the writ of habeas corpus had never been understood to benefit enemy prisoners in war.”
So what the Military Commissions Act actually accomplished was not a curtailment of the civil liberties of Americans, but simply a return of matters to the way they were before SCOTUS went overboard in Hamdan. Yoo says that the act was nothing short of a stinging rebuke to the court. “Congress and the president … told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions.” The act also refuses to the courts the ability to take up cases that concern the Geneva Conventions.
What we have here is a return of military power to the executive branch after the judicial branch tried to horn in where it did not belong. The judicial branch’s power grab was so offensive that the legislative branch quickly went along with rebuking the judicial. The scrap between the administration and three GOP senators over one facet of the act was little more than a sideshow to main event of rebalancing power.
This is how our government is supposed to work. The three branches constantly pull against each other to maintain a proper balance, while hopefully most of the players in those three branches maintain a desire to promote the welfare of the nation above their desire for power. When imbalances occur, the system works to eventually rectify them. And that is what has occurred in this case.