Try, Try Again

Andrew Cohen: Supreme Court's Gitmo Decision Railroads White House

(CBS) 
To the Congress, the ruling is an invitation -- really a plea -- for concrete action. Congressional action clearly cannot help cure all of the potential legal problems with what the White House wants to do with these detainees. But clear direction from Congress certainly couldn't hurt. Which is why Justice Stephen Breyer, in a concurring opinion, practically begged the legislature to get more competently involved:

"Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary," wrote Breyer.

That's where all the action now will center in this dispute as leaders of the other two branches begin to deal with the first day of the rest of Hamdan's life. In fact, Sen. Bill Frist, R-Tenn., the Republican leader of that chamber, hadn't even had time to read the entire ruling before declaring that Congress would try to fix the problem after Fourth of July holiday.

Every member of Congress might want just for fun to print out the long decision and read it over the holiday so that the next legislative "solution" to the problem caused by the detainee turns out better than the last one, the ill-conceived and poorly-worded Detainee Treatment Act of 2005.

To the detainees, and to civil libertarians here and abroad, the Court's ruling is a welcome sign that there is still a working majority of Justices who are willing to disagree from time to time with the Administration's view of vast presidential power that can be exercised without prior judicial approval or consent.

In spite of this ruling, Hamdan may never again walk free. But because of this ruling, he is likely to get a fairer trial, and perhaps be able to see and confront the witnesses against him, and attend his trial, and have a decent chance at appeals, and otherwise rely upon domestic law (the Constitution) and foreign rules (the Geneva Conventions) that contemplated long before his birth that there would come a time when a class of soldiers or prisoners or terrorists or criminals or whatever they are would find themselves in a sort of legal no-man's land.

The language of the historic ruling itself is notable for its general lack of grandiosity. Only Justice Breyer, briefly, took flight. "Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our nation's ability to deal with danger," he wrote. "To the contrary, the insistence strengthens the nation's ability to determine -- through democratic means -- how best to do so. The Constitution places our faith in those democratic means. Our Court today simply does the same."

That quote and a few nasty-grams from Justice Clarence Thomas in dissent are the only truly memorable line from the 185 pages of precedential fun.

First, the Court's majority rejected a late-arriving attempt by Congress to preclude the case from substantive judicial review. Justice Stevens said Congress did not specifically include the case among the class of cases it intended to block from judicial review. This reasoning brought upon the majority the wrath of Justice Antonin Scalia, who called it "patently erroneous."

Scalia, and two of the other members of the Court's more conservative wing, all would have voted for the Administration's plan and against any judicial involvement in the case. Chief Justice John G. Roberts, Jr. did not participate in the case because it was his decision, rendered last year when he was a lowly federal appeals court judge, which was at the Court for review. But even if the Chief Justice had voted now the way he voted then, the Stevens' majority would have held the day.

The majority next ruled that Congress did not specifically authorize the use of the particular military proceedings that the Bush Administration wanted to employ to process the detainees. Justice Stevens also wrote that the government could have long ago prosecuted the men under the rules offered by the Uniform Code of Military Conduct but that the White House had not sufficiently justified its departure from those long-established rules to the new ones, which offer much less due process. And then the Court declared that the government's plan for the detainees violated the Geneva Conventions as well.

The reason there wasn't much lofty rhetoric in all the pages of legalese is that the case ended up being resolved more on technical grounds -- statutory construction -- than on constitutional principles.

Indeed, Justice Stevens was very careful to avoid resolving the many constitutional questions that Hamdan (and the government) had raised. Those were, as they often are in Supreme Court litigation, left for another day.

Whether that day ever comes or not now depends entirely upon the White House and Congress, which have been told in quite certain terms that so long as they try to weasel out of giving the detainees fair trial rights without a darned good reason they are going to have to answer to the other branch of government.