This column was written by Matthew J. Franck.
It is a standard element in the art of fiction that the reader of a story (or the viewer of a movie or play) is called upon to engage in the "suspension of disbelief" — to still the voice whispering "preposterous" in the mind's ear, to entertain the unlikely and even the fantastic, so long as there is some element of internal consistency, plot logic, and verisimilitude, this last understood not as real-world plausibility but as conformity with reasonable expectations, within the world conjured by the artist, about events, characters' actions and motivations, and so forth.So, in the six decades since the invention of Superman, the reader or viewer has been asked, for the sake of the story and its message, to suspend disbelief in the planet Krypton, in the hero's speed, strength, invulnerability, X-ray vision, and so on. Little things can undermine verisimilitude: Accept everything else about him, and isn't it just too much that none of Clark Kent's friends notices that he looks just like Superman with glasses on?
Whether it's little things or big ones, the fiction of Justice John Paul Stevens needs a lot of work before most American citizens — if they had the patience to wade through his 73-page novella masquerading as the plurality opinion in Hamdan v. Rumsfeld — would accept the tale and take its message to heart.
Here are the things in which the reader is required to suspend disbelief, in order to take Stevens' "opinion" seriously as a story of law and war:
That when Congress enacted a statute in December 2005 providing that "no court, justice, or judge shall have jurisdiction to hear or consider" habeas corpus petitions from detainees at Guantanamo, without exception or qualification, it really meant to include an exception that all detainees whose lawyers were clever enough to file petitions before the statute's enactment could still press their claims, and the Court will act on that exception that Congress surely intended but did not say.That when the same law gave "exclusive jurisdiction" for the review of detainees' status, and of their trials by military commissions, to a federal appellate court, it didn't really mean that either.That Congress' explicit, unquestioning references in this law to those military commissions and their trials did not indicate a legislative approval of the president's orders creating those commissions and their trial procedures.That the Authorization for Use of Military Force passed by Congress, when it gave the president power to use "all necessary and appropriate force" against the enemies who attacked us on September 11, 2001, was intended to give no authority to the president to try combatants, captured by U.S. forces, for violations of the laws of war.That no overt acts undertaken by Osama bin Laden and his gang prior to September 11, 2001, can be prosecuted as violations of the laws of war, since such acts occurred before the commencement of a state of war.That conspiracy to violate the laws of war is not itself, and never has been, an offense that can be charged as a violation of the laws of war.
That the previous statement represents a fixed principle because, unlike the Constitution, which is infinitely malleable at the hands of the Court, the common law of war is frozen in place and cannot be adjusted by military officers and their civilian superiors to the changing circumstances of modern war against terrorists.That an unspecific reference, in the Uniform Code of Military Justice, to "the laws of war" as governing trials before military commissions, implicitly incorporates any terms of the Geneva Convention that might be brought to bear on such trials, making those Geneva principles enforceable individual rights in American courts even though Geneva by its own terms contemplates no such enforceability.That by virtue of this move, military commissions are to be condemned as not "regularly constituted" under Geneva, despite their recognition in American law and their active, orderly, rule-bound use in American wars since 1847.That under Geneva, our conflict with al Qaeda is not "international" in character, because al Qaeda is not a nation, nor was it ever an auxiliary force in support of a national regime in Afghanistan.That departures, in the military commissions, from some trial procedures used in courts martial, even though such departures are permitted by the law where abiding by those procedures strikes the president as not "practicable," are to be condemned because the president did not say "Simon says" and declare any particular court-martial procedures "impracticable."That anyway, if he had said "Simon says," it doesn't matter because the Supreme Court gets to say what is "practicable" and "impracticable" in time of war.That the Court cannot think of any departures from court-martial procedures for which there is any "evident need" dictated by "military necessity," which last is another thing the Court knows better than the president and his military and intelligence advisers.That it is unthinkable that there could ever be a need to conceal from the terrorist unlawful combatant defendant, on trial before a military commission, what is the precise provenance of the evidence brought to bear against him, even when it is known to his appointed military defense lawyer who has a "secret" security clearance.I think I'm going to go see the new Superman movie. There I might find a story I can pretend to believe for two hours.
Matthew J. Franck is professor and chairman of political science at Radford University, and a regular contributor to NRO's Bench Memos blog.
By Matthew J. Franck
Reprinted with permission from National Review Online