Hamdan

Hamdan:

The body politic is in an interesting place. The most important distinctions are decided time and again by razor-thin margins, yet the winning side gets all. Thus, in 2004, the electoral margin was very thin -- yet the Republicans won both houses of Congress and the Presidency. Though the margin of victory was only a few points, the whole power of the state passed into Republican hands.

In Hamdan, a 5-3 decision that would have been 5-4 if Roberts had participated decided the day. The margin was as narrow as can be, and yet the intent of the other two branches of government was set aside, and the most hardline liberal ruling in years became, for now, the law.

The SCOTUS is designed to 'tack behind' the rest of the government, as lifetime appointees of previous administration continue to hold to an older understanding of propriety. This has a conservative effect on government, in the sense that it slows and moderates change. That is the real effect of Hamdan -- to hold us to a Cold War understanding of the Geneva Conventions.

During the Cold War, terrorists and guerrillas were the regular proxies of both sides, though particularly the Communists. As such, the great powers had an interest in pretending that those groups had a kind of legitimacy they really never deserved -- whether it was the Contras or the proto-Taliban on the one side, or the Viet Cong or the Popular Front for the Liberation of Palestine or various quasi-Marxist African militias on the other. The Cold War superpowers each adopted a false morality in order to pursue the real goal of disemboweling the other sides' interest through proxies. We chose to treat these people as if they were noble freedom fighters -- at least the ones whose defiance of the laws of war was beneficial to our own side -- and now we are paying the price. The community of legal scholars who came up during the Cold War considers terrorists to simply be disadvantaged soldiers, and considers the violations of the rules of war that terrorists engage in to be simply a balancing of the playing field. We must treat them as if they were moral equals, if only to show how much better we are.

SCOTUS will come around on this one, as more justices retire and are replaced. Justices chosen after 9/11 will not be soft on terrorists, as the old-school justices have learned to be.

Nor will the international situation continue to be so kind. The Cold War is over. The great powers have changed: they are now the United States, China, and a declining European Union. There is a rising India. Of those, only the EU has an interest in continuing to treat terrorists as a sort of criminal, rather than as a sort of barbarian. The EU's power declines steadily, as it strangles itself with regulations and tries to force economies as different as Frances' and Greece's to obey the same rules. India has no love for terrorists, as it suffers more from radical Islamic terrorism than anyone; China has already adopted the issue as a way of dealing with "splittists."

The tide is strongly against Hamdan and its advocates. I join those who suspect that the Bush administration and the Republicans in Congress will set out to overturn it as their major business between now and the 2006 elections. They will not find it hard to do, as the groundwork is already lain. Hamdan, though stern, is a last stroke from a once-strong champion. Once that model of thinking bestrode the world. This was its last hour of strength.

As for what lays beyond, Chester has some interesting thoughts. I myself simply believe that the Republican Federal powers will undo the work of the SCOTUS, and gain political strength in doing so. The Congress will be asked for new authority, and will grant it gladly. Abroad, there is nothing at the international level that is strong enough to resist the combined interests of the United States, China, India, and Russia into the bargain.

There will be no great new rights for terrorists. They will not enjoy the full protections of courts martial, as if they were honorable men. The tide turned long ago. All we see in Hamdan is proof that a few old men and women failed to notice.