"Get your facts first, and then you can distort them as much as you please." (Mark Twain)

Friday, June 30, 2006

Memo to Mr. Justice Clarence Thomas: Blow Me 

I have not commented on the Supreme Court's landmark opinion issued yesterday in Hamdan v. Rumsfeld because I have yet to actually read the entire opinion (PDF) which, when the concurrences and dissents are included, runs 186 pages. Good commentary is available elsewhere, including careful analyses by Glenn Greenwald, and (especially) Marty Lederman and his colleagues at SCOTUSblog.

The cynic in me wonders how much difference the decision will make, at least in the short term. An executive branch which feels free to flaunt the power of Congress (which, after all, controls the pursestrings) is unlikely to grant much deference to the judicial branch (which controls almost nothing). In the longer term, the Court's recognition of the applicability of the Geneva Conventions may have some importance, but it is chilling to realize in this context that the administration is just one Court appointment away from a different result. I have never been overly impressed with Justice Stevens' jurisprudential skills - his heart is generally in the right place, but his opinions often border on the incomprehensible - but we must all hope for him (and Justice Ginsburg) to remain healthy for another two years.

The most telling moment in the decision, however, comes in Justice Thomas' dissent. I found this at ACSblog, via Atrios, and it appears at page 8 of the opinion (page 134 of the PDF, emphasis supplied):
As an initial matter, the plurality relies upon the date of the [congressional authorization for the use of military force]'s enactment to determine the beginning pointfor the “period of the war,” Winthrop 836, thereby suggesting that petitioner’s commission does not have jurisdiction to try him for offenses committed prior to the AUMF’s enactment. Ante, at 34–36, 48. But this suggestion betrays the plurality’s unfamiliarity with the realities of warfare and its willful blindness to our precedents. The starting point of the present conflict (or indeed any conflict) is not determined by congressional enactment, but rather by the initiation of hostilities.

For the record, the man who wrote this passage - who claims, by implication, a superior familiarity with the "realities of warfare" - has never worn a uniform or fired a shot in anger. The author of the plurality opinion, however - that would be Justice Stevens - served in the United States Navy during World War Two. The arrogance and the ignorance of Thomas' comment is truly breathtaking, even considering its source. It is also entirely consistent with the thinking of the people whom he serves.

Update: As usual, the Rude Pundit makes an excellent point (rudely):
Isn't the whole "five justices" or "five robed judges" overruling the "will of the people" device used by the right just the height of rhetorical bullshit? [...] 'Cause, like, wasn't it five justices who overruled the will of the people in Bush v. Gore? So, you know, let's just shut the fuck up about what five justices can do.




Overall, what I have found really strange is that the talk of war precludes a declaration of war. I wonder if war was actually declared (with all the votes & flag-waving) what this would mean. Unlike other declarations of war, we'd have to declare war against someone or some entity. Not "terror" (a vague term, no doubt). Similar to the war on poverty, cancer and cavities....it is a term of art and not a legal declaration of war. If the government was to admit that no declaration of war was possible-another term of art would be necessary (e.g., battle against terroris; scurmish against evil doers).
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