Thursday, October 19, 2006

Supreme court rebuked by congress

John Yoo, professor of law at UC Berkeley, writes on the "military commission law," which was Congress' response to the Hamdan decision, explaining that it is much more than just that:
[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. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court's habeas powers in wartime because it disagreed with its decisions.

The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.
Traditionally, treaties have been considered politics not law and consequently the Supreme Court should have no business interpreting them. During Pres. Washington's administration, for example, France went to war with England and tried to force the US to obey our mutual defense treaty and go to war on France's side. No politician on the US side agreed. If the Supreme Court had claimed jurisdiction then and forced a war, the American experiment might have come to a quick and painful end.

Professor Yoo's interpretation of how the press missed the meaning of this law is also interesting:

All this went overlooked during the fight over the bill by the media, which focused on Sens. McCain, Graham and Warner's opposition to the administration's proposals for the use of classified evidence at terrorist trials and permissible interrogation methods. In its eagerness to magnify an intra-GOP squabble, the media mostly ignored the substance of the bill, which gave current and future administrations, whether Democrat or Republican, the powers needed to win this war.
In other words, the press was so busy trying to make Republicans look bad that they missed the big picture.

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