American security depends on decisive use of presidential power, but American liberties also depend on reasonable definitions of those powers. However it decides on the merits of the Salim Ahmed Hamdan case now before it, the U.S. Supreme Court must reassert its judicial-branch jurisdiction and its role of constitutional review.
Hamdan, who deserves little sympathy as Osama bin Laden's former driver, is at the center of a complex case being argued on many levels. But the first hurdle involves whether the Supreme Court even has jurisdiction over the case. That question arises in the wake of Congress passing the Detainee Treatment Act late last year. It strips defendants in such military courts of any right to habeas corpus petitions, the basic legal tool to determine whether the trial itself is lawful.
If the Supreme Court decides that new law is not only valid but applies to cases it had accepted before the law was passed, this case is over. The court should reject that path, and reassert its jurisdiction. Hamdan's birdshot defense peppers the court with other legal issues. Most important, from a policy standpoint, is whether President Bush had the authority, with or without congressional acquiescence, to establish the military tribunal process generally, for al-Qaida captives, or for Hamdan individually. It also argues that Hamdan's capture in Afghanistan makes him a prisoner of war with Geneva Conventions protection, and that if he's not there a Geneva Conventions tribunal has to say that before a U.S. tribunal can act; that conspiracy isn't a globally recognized charge so he can't be tried in a military court for it; and that there have been procedural violations.
Those issues can and should be argued openly, and Hamdan's case is a good way for the Supreme Court to define them. That's why the executive branch wants it to rule itself out -- because it wants no definitions but its own. Military tribunals have been used since Gen. George Washington had to deal with the British spy caught working with Benedict Arnold. The ones set up two months after the 9/1 1 attacks were a valid approach toward dealing with al-Qaida captives. Last year's Detainee Act also offsets its waiver of habeas corpus by mandating military status review panels at Guantanamo and allowing an appeal to the federal district court in Washington, D.C.
But other cases, including Zacarias Moussaoui's, went to civil court. And no nation that prides itself on upholding the rule of law should so easily suspend the law. The Bush administration has a long history of claiming overreaching powers with little regard to the need to balance national security and individual rights. The high court's job is to draw those lines.