Serving the International Brotherhood

July 3, 2006

The best explanation for the Supreme Court’s holding that a military tribunal lacks jurisdiction to try suspected terrorist Salim Ahmed Hamdan is not to be found in the Constitution or the cases interpreting it, or in the Court’s interpretation of congressional legislation, but in extrajudicial factors.

The Court lacked jurisdiction to hear Hamdan’s appeal, but once assuming jurisdiction, it ruled incorrectly that the Geneva Conventions apply to his case. The Court strained, in the first instance, to inject itself in this matter, despite the clear intent of Congress to deprive it of jurisdiction, and it strained to grant Hamdan, a suspected Al Qaeda member, Geneva Convention protections.

Such an unwarranted assumption of jurisdiction by the Court, coupled with its bending over backward to treat a suspected civilian-killing terrorist the protections guaranteed to bona-fide soldiers of Geneva signatories, can only be explained by the psychology of the court’s majority.

When learning of this decision, I was reminded of the words of Justice Antonin Scalia in a speech on the growing (and disturbing) influence of international law on our Supreme Court jurisprudence. Scalia’s words, even more than his brilliant dissent in this case, contain the key to understanding the mindset of the Hamdan majority.

Scalia said that judges inclined toward the “living Constitution” approach think “there really is a brotherhood of the judiciary who indeed believe it is our function, as judges throughout the world, to determine the meaning of human rights. And what the brothers — and sisters — in one country say is quite relevant to what the brothers and sisters in another country say. And that’s why I think if you are a living constitutionalist, you are almost certainly an international living constitutionalist.”

To grasp the magnitude of the arrogance of the Court’s majority in extending Geneva protections to Hamdan, you really need to understand that it had no power to decide this case.

Justice Scalia devoted his entire 24-page dissent to making this point. On Dec. 30, 2005, Congress passed the Detainee Treatment Act (DTA), in which it expressly and unambiguously stripped all courts, including the Supreme Court, of jurisdiction to consider habeas corpus petitions of Guantanamo Bay detainees, such as Hamdan.

The DTA provides, “No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” The provision, said Justice Scalia, took effect on the date the act was passed: Dec. 30, 2005. As of that date all courts were deprived of jurisdiction in all such cases, including pending cases, like Hamdan’s.

The majority went out of its way to find that Congress did not mean to deprive the courts of jurisdiction over pending cases. But as Scalia explained, previous Supreme Court precedent makes clear that “when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law.” And there was no such reservation in the DTA. As the Court stated in Ex parte McCardle (1869), “Without jurisdiction, the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”

It is inconceivable that the Court’s majority was in doubt about Congress’s intent to deprive it of jurisdiction in these cases. But it decided to snub its nose at those annoying scalawags, whom, after all, are not fit to tie the shoes of members of the elite global fraternity of judges.

Once it usurped jurisdiction of the case, the majority further demonstrated its determination to go the extra mile for Al Qaeda (and thus please its international brethren) by straining to interpret “Common Article 3” of all four Geneva Conventions as applying to Hamdan even though Al Qaeda is not a nation, not a Convention signatory, and the conflict is clearly international in scope. Can you imagine the implications of granting Geneva protections to terrorists who lurk incognito among civilian populations and target them for extermination? What incentive remains for anyone — even from signatory nations — to abide by the rules? Leave it to the liberal elite to reward rule-breaking and barbarity.

Above all, this case illustrates the urgent need for at least one more Bush Supreme Court confirmation: an originalist who is a lifetime non-member of the international brotherhood.