Hamdan is a former bodyguard/chauffeur of Osama bin Laden, captured in Afghanistan, now detained in Guatananamo Bay and the plaintiff in a case against Secretary of Defense Donald Rumsfeld. In that case, the United States Supreme Court proclaimed (both prematurely and patently wrongly) that Hamdan is entitled to benefits of the Geneva Conventions and may not be tried by a military tribunal upon the order of the President of the United States (who is also the Commander-in-Chief of the Armed Forces of the United States and entitled to deference as to his military decisions, especially in wartime).
Linda Greenhouse is the longtime United States Supreme Court reporter of The New York Times (the newspaper that periodically takes it upon itself, even during wartime, to publish classified information the disclosure of which obviously will benefit enemies of the United States, such as the Bush Administration's previously secret terrorist surveillance program monitoring terrorist telephone calls and its previously secret monitoring of terrrorist banking transactions outside the United States). She is married to a prominent attorney widely regarded as a leading expert in military law. Her influence is such that Laurence H. Silberman, an insightful retired federal appellate judge, coined the term "Greenhouse effect," referring to the possibility that some judges, including United States Supreme Court justices, have decided cases in order to win favorable coverage from her.
Whether or not a "Greenhouse effect" affected the majority opinion is debatable, but there is no denying that Ms. Greenhouse reported the Hamdan decision blocking the federal government's plan for for trying the Guantanamo detainees euphorically:
"The decision was such a sweeping and categorical defeat for the administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantánamo detainees almost speechless with surprise and delight, using words like 'fantastic,' 'amazing' and 'remarkable.' . . .
"The courtroom was, surprisingly, not full, but among those in attendance there was no doubt they were witnessing a historic event, a defining moment in the ever-shifting balance of power among branches of government that ranked with the court's order to President Richard M. Nixon in 1974 to turn over the Watergate tapes. . . .
"In the courtroom on Thursday, the chief justice sat silently in his center chair as Justice Stevens, sitting to his immediate right as the senior associate justice, read from the majority opinion. It made for a striking tableau on the final day of the first term of the Roberts court: the young chief justice, observing his work of just a year earlier taken apart point by point by the tenacious 86-year-old Justice Stevens, winner of a Bronze Star for his service as a Navy officer in World War II."
Ms. Greenhouse went over the top and could not stop. The Supreme Court order to President Nixon to turn over the Watergate tapes led to his resignation; its order blocking the trial of Hamdan pursuant to presidential order from proceeding is leading Congress to pass legislation authorizing it, not to impeach the President. The wartime service of the aged, activist justice who authored the majority opinion is highly commendable (although not as commendable as the Vietnam service of former Congressman "Duke" Cunningham, now imprisoned), but hardly justification for his deplorable decision.
Mark Levin is one of America's premier constitutional lawyers and conservative commentators. A guest on hundreds of television and radio programs and a contributing editor for National Review Online, he served as a top advisor to several members of President Ronald Reagan's Cabinet—including as Chief of Staff to the Attorney General of the United States and leads the prestigious Landmark Legal Foundation based in Washington, D.C.
Mr. Levin's recent National Review Online article ("The Outrage of Hamdan") eviscerated the majority opinion and put it in context:
"Congress and the Court are systematically stripping the presidency of war-making powers. Congress demands that the president get court approval before intercepting enemy communications (we call that intelligence gathering) and the Court demands that the president get statutory support from Congress before he can use military tribunals to try terrorists. And yet, neither Congress nor the Supreme Court have any explicit constitutional authority to make these decisions. Congress can cut-off funding for the war or any aspect of it, which it has not; and the judiciary's only role in these matters is to defer to the president, who has explicit and broad authority under the Constitution as the commander-in-chief. Today, the Court has taken a giant new step in its usurpation of explicit presidential authority. The battle against terrorism is being fought as much in our courtrooms as on the field in Iraq and other places — where the likes of the ACLU and activist judges will set policy in contravention of the Constitution. Congress and the courts are conferring rights and privileges on terrorists. They are conferring constitutonal protections on the enemy. They are granting the enemy jurisdiction in our civilian courts. They are extending the Geneva Conventions to an enemy that is specifically excluded from those protections. I wrote an entire book on the subject of the Supreme Court, and how it's destroying America. And that's exactly what it's doing. In 2004, the Court said, in two cases — Rasul and Hamdi — for the first time in our history, that unlawful enemy combatants — that is, terrorists who themselves refuse to comply with the rules of law — have a legal right to access to our federal civilian courts and can file habeas corpus petitions there. That means they can ask a federal judge to determine whether their detention is proper. In the past, the Supreme Court refused to grant such access to our courts. And as I wrote at the time, this is a slippery slope. Having broken down the wall of restraint that had traditionally been recognized by the Court, there appears to be no limit anymore on the judiciary's role in second-guessing the commander-in-chief. And that's exactly what happened today. The Supreme Court said today that in exercising his constitutional authority, the president had to comply with congressional statutory mandates. I don't believe the establishment of these tribunals violate any statute, but more to the point, since when does a statute trump the Constitution? Since never. Let's look at the relevant Geneva Convention. First point - since when does a party that has NOT signed a treaty, and does not comply with a treaty, become a part of such a treaty? The Geneva Convention relating to the treatment of prisoners of war provides, at Article 4, that —'
A. Prisoners of war ... are persons belonging to one of the following categories, who have fallen into the power of the enemy: '1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. '2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this terrirory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions: (a) That of being commanded by a person responsible for his subordinates; (b) That of having a fixed distinctive sign recognizable at a distance; (c) That of carrying arms openly;(d) That of conducting their operations in accordance with the laws and customs of war.'
"The purpose of this language is to make clear that NOT every combatant is covered by this treaty, i.e., that in order to receive the Convention's protections, combatants must accept and comply with basic rules of war. Any literate person should understand this. Well, the activist Supreme Court majority in Hamdan decided to ignore this language. Instead, it looked to 'Common Article 3,' which has nothing to do with the current war. It requires, as an initial matter, that the conflict be not be of an international character. But the war on terrorism clearly is of an international character. Are the justices blind to the numerous known terrorist cells and conflicts throughout the world? After rejecting the jurisdictional restriction of this article, the Court then went ahead and applied it to unlawful enemy combatants. That is to say, that terrorists detained by the U.S. 'shall in all circumstances be treated humanely' and there shall be no 'outrages upon [their] personal dignity, in particular humiliating and degrading treatment.' The author of this intellectually dishonest opinion is John Paul Stevens. Stevens did something very similar in the earlier Rasul case in which he played word games with 'jurisdiction.' In Rasul, the relevant statute provided that a writ of habeas corpus may be granted by a federal judge within their own jurisdiction, meaning within their judicial district. Stevens twisted that language to mean that a federal judge's jurisdiction extends to any territory over which the U.S. exercises complete control, i.e., Guantanamo Bay — a military base located in a foreign country. In doing so, Stevens also reversed over 50-years of precedent. In Johnson v. Eisentrager, the Court held it that alien combatants did not have access to U.S. civilian courts. Today the Supreme Court's majority trashed the Geneva Conventions, trashed Supreme Court precedent, and trashed the Constitution. But it did succeed in expanding its own authority and the ability of the enemy to conduct its war against us."
Wendy E. Long is legal counsel to the Judicial Confirmation Network (an organization of citizens joined together to support the confirmation of highly qualified individuals to the Supreme Court of the United States and to ensure that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote). Until March 2005, Mrs. Long was a litigation partner in the New York office of Kirkland & Ellis LLP. Previously, she was a law clerk to Justice Clarence Thomas (whose dissenting opinion in Hamdan deftly demonstrated in detail that the majority opinion represented an egregious abuse of power and judicial activism at its worst).
Mrs. Long, in a caustic, but completely correct, comment posted as a benchmemo at National Review Online ("The Liberal, Activist, Lawless Kennedy Court") pointed out not only that Hamdan was wrongly decided and demonstrated a dangerous disregard for the law, but also that Justice Anthony Kennedy, a disappointing Supreme Court appointment by a Republican President (like Justices Stevens and Souter) "somehow taint[s] the whole" Court.
"]The important end-of-term decisions handed down by the Supreme Court, including Hamdan and the Texas redistricting case, point to one regrettable conclusion: this Court is still a liberal, activist Court that issues decisions based on politics, personal preference, ideology, perceived international or humanitarian ideals — in short, on anything and everything except what should be its sole consideration: the law.
"At the epicenter of this problem is Justice Anthony Kennedy, who manages to make the entire Court look like a totally political body. His concurring opinions of breathtaking lawlessness and irrationality, siding with the liberal activist wing of the Court, somehow taint the whole institution. No wonder the current erroneous tendency among press and public to evaluate judicial nominees in political terms.
"Justice Kennedy has long been this way — Casey, Lawrence, the list goes on and on — but in the past he shared this 'swing vote' pedestal with Sandra Day O'Connor, who at least wrote narrowing (if similarly unintelligible) concurrences a good deal of the time. With O'Connor gone, Kennedy appears even more unhinged from law and reality, and the broad 'swing vote' brush with which he paints is covering over more and more of the Constitution.
"The replacement of Justice O'Connor with Justice Alito has made a solid block of four whose stock-in-trade is the law: its text, its principles, and its history. But instead of four — the Chief Justice, and Justices Scalia, Thomas, and Alito — there could have been today a majority of six such Justices, if only well-intentioned former Republican Presidents, and their legal advisers, had insisted on judicial nominees with a demonstrated public record of adherence to the law and fidelity to judicial restraint and the principles of the Constitution.
"Today's decision in Hamdan calls to mind President Abraham Lincoln's response when he was accused of violating the Constitution's grant of executive power by suspending the writ of habeas corpus during the Civil War. The essence of Lincoln's response was later articulated in another context by Justice Robert Jackson, who wrote that the Constitution cannot become a 'suicide pact.' How ironic that Justice Kennedy, in his Hamdan concurrence, cited Justice Jackson on the extent of executive power. How tragic that his analytical ability does not match Justice Jackson's."
"The hopeful sign is that Americans are now focused on the need for proven constitutionalist Justices, as they were not when Justice Kennedy and Justice Souter were nominated by Republican presidents. They know that the success of self-government is at stake, as President Lincoln said in his first inaugural address:
'If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.'"
Perhaps the "Greenhouse effect" seduced Stevens, Kennedy and/or Souter. (Ginsburg and Breyer did not need seducing, and never should have been appointed, but Bill Clinton was doing the appointing when the vacancies they filled arose). Instead of improving with age, Stevens devolved His obituary in The New York Times undoubtedly will be memorable, but he seems to have decided that the Constitution he took an oath to support is a Constitution he rewrites or tries to rewrite as he thinks best (examples: banning Ten Commandments displays in courthouses and writing the "public purpose" requirement of the Constitution's eminent domain clause out of the Constitution).
There could be a solid block of seven if Republican Presidents had not settled for Stevens, Kennedy and Souter. For America's sake, it needs to be at least five. And the sooner, the better.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.