Stevens No Superman In Gitmo Decision

John Paul Stevens, Supreme Court Justice
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.