Jewish World Review July 5, 2006 / 9 Tamuz, 5766

Paul Greenberg

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The fog of law | Clausewitz, and probably every military theorist since, has spoken of the fog of war — the difficulty of telling what's happening in the field when you're in the midst of battle. Leave it to the Supreme Court of the United States to wrap war in a fog of law, too.

Sandra Day O'Connor has left the court but, alas, she didn't take her foggy jurisprudence with her. Her swing-vote, neither-here-nor-there, wait-and-see, let's-put-off-the-essential-questions kind of law still hovers. For the court now has emitted a fragmented opinion against the use of military tribunals in wartime, or at least the kind of military tribunals that were to be used at Guantanamo. In their place, the court leaves . . . mainly a vacuum.

That vacuum is being filled for the moment with a lot of speculation about just what those in charge of defending the country are supposed to do now. Abandon all hope, ye who would look for clarity from this Supreme Court.

This time the decisive vote for indecision was cast by His Honor Anthony Kennedy, who didn't join the majority but wrote a separate, concurring opinion in part, doing his modest part to further complicate matters.

Hamdan v. Rumsfeld isn't the worst decision the Supreme Court has ever handed down — far from it. It's certainly not in the same invidious league as Dred Scott, in large part because it's not as clear. Instead it's so open-ended it should have concluded not with Reversed and Remanded, but To Be Continued.

Even the concept of unlawful combatants — an enemy who violates the rules of war and is accountable to no government — may no longer be applicable in American law in any realistic way. Every terrorist, every saboteur, every spy or conspirator who scrupulously avoids attacking military targets and limits his assaults to innocent civilians may now be entitled to the equivalent of prisoner-of-war status with all the rights and privileges appertaining to. Or maybe not. That's not clear, either.

Could the German soldiers who donned American uniforms during the Battle of the Bulge to misdirect GI convoys and generally sow confusion have been summarily executed if Hamdan v. Rumsfeld had then been the law of the land? Would the Nuremberg Trials — military tribunals — have been constitutional? And what about many of the measures taken during the Civil War against Confederate spies and raiders?

The administration now has been given a menu of alternatives to these now unconstitutional military tribunals and told it can take its choices. (One from List A, two from List B, as in a Chinese restaurant?) The administration could:

  • Release all those held at Guantanamo and speed them on their way to their next terrorist assault, but that's not likely to happen under this president and commander-in-chief or, one would like to believe, under any other.

  • Try any formerly unlawful combatants under the rules for military courts-martial, with all the risks that would present of terrorists discovering the names of informants and how the government operates against them. They might be entitled to communicate freely with their fellow conspirators or call them as witnesses in their behalf. Each trial could become an extended circus and farce a la the Zacarias Moussaoui case. For all the reasonable precautions associated with military commissions may no longer be legal.

  • Could send these prisoners back to their home countries, where they might be subject to anything from immediate release to being tortured to death. Being sent home could be the last thing many of these detainees would choose. They might find the prospect of indefinite confinement at Gitmo, grim as that is, preferable to being handed over to their compatriots in, say, Egypt or Saudi Arabia.

  • Could, in conjunction with Congress, set up a new system of military commissions that might or might not meet the Supreme Court's objections. In the meantime, over the years it would take to create such a system, put it into place and then perhaps have it overturned by the Supremes again, the prisoners would stay right where they are now. And justice delayed would again be justice denied.

  • Or could do nothing at all, and just hold the prisoners for the duration of the War on Terror, meaning forever. The court did not challenge the long-accepted practice of holding prisoners of war till the end of hostilities. Which means that, in addition to all the other new facilities going up at Gitmo, a capacious cemetery may be needed. Because it's going to take a long time to sort out all the questions the Supreme Court has left unresolved.

While much of the majority opinion is merely confusing, some of it rings unmistakably false. Like the assurance from Associate Justice Stephen Breyer that this decision "does not weaken our nation's ability to deal with danger." Uh huh. It just throws in doubt the whole legal system for dealing with it.

Associate Justice Clarence Thomas was closer to the mark in his dissenting opinion when he warned that this decision will "sorely hamper the president's ability to confront and defeat a new and deadly enemy." Or at least wrap that effort in a legal fog.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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