The decision in the Hamdan case helps show why activists on both sides of the political spectrum fight so hard over judicial nominations. A district court judge appointed by President Clinton bent over backwards to find that trial by a military tribunal isn’t good enough for Osama bin Laden’s driver and his fellow al Qaeda members who were captured fighting against us in Afghanistan. In doing so, the district judge held that the 1949 Geneva Convention confers individual rights enforceable in federal court, but did not even mention a Supreme Court case, relied on by the government, holding that the comparable 1929 Geneva Convention is not judicially enforceable. The district judge also concluded, as he had to for technical reasons in order to bestow gold-plated process on the al Qaeda man, that when Hamdan was captured we were not engaged in a conflict with al Qaeda that is distinct from our conflict with the Taliban. Huh? And the district judge obliterated the distinction between court martials and military commissions, even though the Uniform Code of Military Justice clearly does not treat the two interchangeably. That’s how eager the district court was to make sure that bin Laden’s driver gets, at a minimum, the same military trial that a U.S. soldier accused of misconduct (but not of taking the field of battle for the enemy) receives.
What explains the district judge’s desire to thwart the government and find in favor of Hamdan? As suggested here the most likely motive was the judge’s personal belief that, in his words, the government’s position “can only weaken the United States’ own ability to demand application of the Geneva Conventions to Americans captured in armed conflicts abroad.” But shouldn’t the views of our military leaders and president on this policy question trump those of a former civilian lawyer now serving as a district judge? To answer in the negative is to extend the role of judge from impartial interpreter of the law to policy maker. That’s what conservatives are talking about when they complain about judicial activism. And that’s what much of the fuss is about.
As I expected as soon as I knew who was on the panel, the Court of Appeals cleaned up this mess. The author of the no-nonsense opinion (Judge Randolph) is a Bush-I appointee. The judge who agreed in full with the opinion (Judge Roberts) is a Bush-II appointee. The judge who concurred with nearly all of the opinion (Senior Judge Williams) was appointed by Reagan.
But one cannot count on the Supreme Court to decide this case on the legal merits, as opposed to its sense of what the decision might mean for American prisoners of war, or how our treatment of the al Qaeda prisoners comports with European thinking on the subject. That too is what the fuss is about.
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