bin Laden’s driver’s big day

Tomorrow the Supreme Court will hear oral argument in the Hamdan case. Hamdan was Osama bin Laden’s driver. He claims that our government’s decision to try him before a military tribunal violates his rights.

A preliminary matter is which judges will hear the case. Chief Justice Roberts will not; he helped decide it in the court of appeals. Justice Scalia, I assume, will. Some folks are claiming that he should recuse himself because he talked about some of the issues in the case during a speech. This claim lacks merit, in my view, for reasons set forth by Daveed Gartenstein-Ross and Ed Whelan.

A threshold legal issue is whether the Supreme Court has jurisdiction to hear this case in light of the Graham-Levin amendment (formally known as the Detainee Treatment Act). That Act denies jurisdiction over “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.” Matthew Franck shows why this language should be deemed a show-stopper.

If the Court gets to the merits, it should affirm the court of appeals decision in favor of the government for the reasons set forth in Judge Randolph’s excellent opinion.

But will the Court affirm? Charles Lane in the Washington Post suggests that, because the case has so many sub-issues, it is difficult to handicap. In truth, nearly all of the sub-issues raised by Hamdan’s attorneys are frivolous, as Judge Randolph demonstrated. But Lane’s point is nonetheless valid — the whiff of complexity associated with the existence of multiple issues can provide the springboard for one of the Court’s infamous split decisions which, in turn, provides the springboard (or pretext) for policy making.

Lane makes another interesting point when he notes that “several members of the court are especially sensitive to international opinion, which has generally seen Guantanamo as a symbol of U.S. excesses in the war against al-Qaeda.” Indeed, “the court has been bombarded by friend-of-the-court briefs urging it to think about the impact of the Hamdan case on the image of the United States abroad.”

One would hope that our fiercely independent judiciary, which prides itself on being unmoved by public opinion, would be unmoved by the opinion of foreigners. One would also hope that the Court will not usurp the foreign policy making role of the president by taking it upon itself to craft policies that it thinks will improve our image abroad.

If the Court is inclined not to exercise this minimal amount of restraint, it might consider the impact of the Hamdan case on its own image right here in the U.S.A. Foreigners may applaud conferring on Osama’s driver the rights and privileges afforded prisoners of war, or better. But Americans are unlikely to be amused.


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