The New Juristocracy

From the Founding right up until the still-quaking bombshell of Hamdan v. Rumsfeld, issued at the end of the Supreme Court's term in late June, the primary imperative of national government was to protect the security of the governed from hostile outsiders. The Framers, however, had an ingenious gloss on this venerable first principle. In the great American experiment in republican democracy, this power of self-preservation—what Justice Felix Frankfurter, in another era of grave peril, called “the most pervasive aspect of sovereignty”—would repose only in those political actors directly accountable to the people whose lives hung in the balance.

The arrangement made exquisite sense. On the one hand, if the public's representatives were insufficiently attentive to national security, those with the most at stake could vote them out of office. On the other hand, if public officials failed to give due deference to the civil rights that guarantee our freedom, Americans, lovers of liberty, could show them the door. The epicenter of this dynamic would be the President of the United States, the only public official (besides the Vice President) elected by, and accountable to, all of the people.

Judges? They would have no role in national security. They, after all, are politically unaccountable. This is neither to disparage them nor suggest they are irresponsible, much less unpatriotic. They are unaccountable to the people because they are accountable only to the law. And not some universal law. They are custodians of the people's laws, those governing the domestic body politic.

Those laws quite intentionally handcuff government for the sake of promoting freedom. They thus have no place in the international arena, a state of nature in which nations, insurgent militias, and, now, transnational terrorist networks all claim the right to use force. “The circumstances that endanger the safety of nations are infinite,” Hamilton observed in The Federalist (No. 23). “[F]or this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.”

In stark contrast, within the domestic realm, government would have a comparative monopoly on the legitimate use of force. Security would not be as pressing a concern. Within this fortress, judicial courts could guarantee Americans freedom from oppressive action by their government. They could preserve the rule of law indispensable for the American body politic to flourish. It was for those reasons—in abeyance of mortal danger—that the nation could afford to insulate them from popular passions, whims, and safety concerns.

However patently central it is to a good society, the judicial function remains largely irrelevant to the international order. For all the blather about our “international community,” it is an ersatz community, lying beyond our laws and democratic choices. Unlike dreamy modern internationalists, the Framers well understood that broad swaths of this “community”—enemies of the United States—would always pose threats, some existential, to the body politic.

Such threats are not legal problems. They do not principally involve Americans being deprived of their legal entitlements by their government—the cases and controversies judicial power was designed to resolve. They are clashes between the American national community and the outside world. They are the stuff of political power—diplomacy, force, and all the intermediate measures wielded by the political branches. The judicial power has no place because American courts are part and parcel of the American national community; they do not exist outside or above it.

In our system, rising to external threats from alien forces with no claim on the protections of American law would be the domain of the political branches. In times of crisis and war, it would be uniquely the province of an energetic executive. All the immense might the United States could muster for its self-preservation would be concentrated in one set of hands, able to act swiftly and decisively to quell enemies endlessly variant in size, strength, and method of attack.

Was that, as vigorously claimed by today's critics of the purportedly “imperial presidency” of George W. Bush, a blank check? Of course it was not. Those hands, the president's, answer to the American people. The line between liberty and security is not a fixed one. “The great ordinances of the Constitution,” the legendary Oliver Wendell Holmes, Jr., admonished, “do not establish and divide fields of black and white.” They are not amenable to static judicial formulas. Our barometer—within very wide margins—is what the American people demand for their well-being, which ebbs and flows with the state of the threat environment.

This is why, for example, we have never—at least until Hamdan—had a one-sided treaty with an international terrorist organization, whereby jihadists get to keep killing Americans and we guarantee them American rights. The Constitution makes treaties the province of accountable political actors. No public official who had any thought of remaining a public official would propose a departure from that principle. In the days before Hamdan, when the Framers' requirement of an accountability nexus between the protectors and the protected held sway, such a bizarre idea would have been a career-ender.

National self-preservation: the irreducible core of popular self-determination. It is simply not the business of judges. And once, in a less hubristic time, no one knew that better than the judges themselves. Of presidential power, Holmes wrote for a unanimous Supreme Court in 1909: “When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process” (emphasis added). Justice Robert Jackson—a giant in both the accountable and unaccountable worlds, having served as FDR's attorney general before being named to the Supreme Court and, ultimately, prosecuting the Nazis at Nuremburg—put it emphatically in 1936:

[T]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry [italics mine].

No longer. With Hamdan, a very different breed of Supreme Court has ushered in a new juristocracy. It has formally cut the publicly accountable tie between the most fundamental political matter, namely, national survival, and the decision-making of political representatives. And already this much is clear: While judicial intrusion is now the order of the day, judicial aptitude has not advanced beyond Justice Jackson's low expectations.
In trumping democratic self-determination, the Hamdan court's first order of business was to cashier Congress as an instrument of the public will. In a juristocracy, a legislature is simply a tool for imposing the judicial will on the executive—and the people. As a stricture on the judiciary itself, Congress is impotent.

In 2004, the budding juristocracy had first flexed its new wartime muscles with an unprecedented grant of American court access to alien enemy combatants (i.e., non-American terrorists) engaged in a barbaric war against Americans. Specifically, the Supreme Court held, in Rasul v. Bush, that America's enemies could use America's courts to file habeas corpus petitions challenging their detention by America's military, which had been sent into battle by America's president after a sweeping authorization overwhelmingly approved by America's legislature.

Americans, it should astonish no one to learn, were not in favor. They pressed their accountable representatives to act. Congress responded with last December's Detainee Treatment Act (DTA). It provided, in no uncertain terms, that “no court, justice or judge shall have jurisdiction to hear or consider 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.”

Congress, having considered the executive branch's arrangements for the detention and trial by military commission of alien combatants, determined that those military proceedings should go forward. This was unsurprising. The detention of enemy combatants is a staple of warfare. When combatants violate the laws of war—as is al Qaeda's modus operandi—military commissions have been employed since the nation's founding to try them. The commissions authorized by President Bush for al Qaeda terrorists after the 9/11 attacks were, by historic standards, remarkably deferential to fair-trial concerns—particularly given that the enemy's idea of due process for captives is to start a new videocassette before recording the next decapitation. To the contrary, the Bush commission procedures called for:

the presumption of innocence;

 

burden of proof on the prosecution;

the right to counsel—both to a military lawyer provided at the expense of the American taxpayer and to a private attorney if the combatant chose to retain one;

the right to be presented with the charges in advance of trial;

access to evidence the prosecution intends to introduce and to any exculpatory evidence known to the prosecution;

access to interpreters as necessary to assist in understanding the proceedings;

the right to a trial presumptively open to the public (except for portions sealed for national defense or witness security purposes);

the free choice to testify or decline to do so, and the right against any negative inference from a refusal to testify;

access to reasonably available evidence and witnesses, and to investigative resources as “necessary for a full and fair trial”;

the right to present evidence and to cross-examine witnesses;

elaborate sentencing procedures, and a multi-tiered post-trial review process.

Nevertheless, in recognition of the fact that the enemy targets civilians for mass homicide, the president factored into the fair-trial calculus the imperative of protecting the lives for which he is accountable. Thus, while combatants would presumptively have a right to be present at all stages of their trials, that presence could be denied during portions in which classified information was to be introduced (including secret methods and sources for obtaining that information).

Mind you, the combatant would not be completely shut out; his military counsel would have the right to be present. But the balance struck was to provide considerable due process while screening the enemy from intelligence vital to the national defense. Information that could be used against us in the ongoing war. Information the revelation of which might induce foreign intelligence services to refrain from cooperating with us. Information of the kind jihadists were lavishly given during the 1990s, when terrorism was regarded as a crime and al Qaeda reaped the benefits of disclosure-rich standards that govern American civilian trials.

Surveying these procedures at the end of 2005, Congress clearly approved. It was, after all, within the legislature's power to condemn the commissions, or at least clarify that they were not what Congress contemplated when it broadly authorized the use of military force after the 9/11 attacks. To the contrary, the DTA patently assumed that the commissions would go forward to completion without further interference from the civilian court system. But bowing to criticism from civil liberties activists and foreign commentators, Congress balanced American national security against complaints that military proceedings were too unilaterally controlled by the executive branch. Generous provision was made for independent judicial review.

This innovation would make the al Qaeda proceedings the most enemy-friendly in a history that dates back to George Washington's use of military commissions in the Revolutionary War—a history during which commissions have always been the exclusive preserve of the executive. Under the new formula, at the end of the military process, review would be undertaken by the U.S. Court of Appeals for the D.C. Circuit (and, ultimately, the Supreme Court). Appeal could be taken as of right by any alien sentenced to ten years or more of imprisonment. But there was yet another beneficent caveat: the court would have discretion to accept review of any combatant case if it seemed an injustice had been done.

It was only with those protections in place that Congress unambiguously directed the courts, including the Supreme Court, to cease and desist interfering in the executive's conduct of foreign policy and warfare. Such intrusions, as Justice Jackson had soundly referred to them, were in arrant contravention of the goal of the war, which is to defeat the enemy, not to empower him. The Supreme Court itself had acknowledged in the wake of World War II (in the 1946 Yamashita case) that the “trial and punishment of enemy combatants” who commit war crimes are part of the “conduct of war.” The conduct of war, military necessity, is a presidential responsibility, far beyond the judicial ken.

A juristocracy, though, abides no curbs on its jurisdiction. It matters not that the Framers made Congress the master of the courts' jurisdiction. In this juristocracy, our Constitution and congressional statutes like the DTA mean not what they say, but whatever five Supreme Court justices say that they mean. In this instance, five Hamdan justices led by John Paul Stevens (author of the aforementioned Rasul debacle), decided that “no court, justice or judge shall have jurisdiction” actually meant “we five justices shall have such jurisdiction as we damn well please.” With reasoning that would make a snake-oil salesman blush, the majority ruled that the DTA was somehow meant to apply only to future detainee cases, not to detainees whose cases were pending at the time of enactment. Of course, the whole point of the DTA had been to deal with pending detainee cases—the Gitmo population is steadily dwindling and no one anticipates new cases. But such congressional shackles are gossamer against the judicial will-to-power.

Having brushed aside governing law, the juristocracy then moved on to its actual agenda: slamming the president for … brushing aside governing law. At least that was what the majority purported to be doing. The charge, however, is baseless. In reality, what this court has done is impose on a nation at war laws Congress never enacted, which incorporate a post-sovereign vision of human rights Americans have never adopted, derived from a treaty the United States has never ratified—indeed, has expressly rejected owing to fear that it would vest terrorists with broad legal protections.

The Hamdan majority cashiered the Bush military commissions on the ground that they violate Common Article 3 (CA3) of the 1949 Geneva Conventions. On its face, this is preposterous, amounting to a drastic rewrite of the Conventions as ratified by the political branches through the Constitution's treaty process. Naturally, al Qaeda, being a terrorist network rather than a country, is not a Geneva signatory. CA3 operates to extend some prisoner-of-war protections to the militias of non- signatories, but only in very particular circumstances: to wit, conflicts “not of an international character occurring in the territory of one of the High Contracting Parties,” meaning civil wars. To contort al Qaeda into this category, the court had to find that a terror network which has killed Americans in New York, Virginia, Somalia, Saudi Arabia, Kenya, Tanzania, Yemen, Afghanistan, and Iraq—to say nothing of the hundreds of non-Americans it has slaughtered globally—is somehow not “of an international character” because it is not a nation. Swept aside were the inconveniences that the war on terror is patently not confined to Afghanistan (where Hamdan, Osama bin Laden's personal driver, was captured), and that American courts have traditionally recognized the president's supremacy in the interpretation of treaties (which he ratifies and can unilaterally end).

More alarming, though, are the ramifications of applying CA3. Treaties are international compacts. Presumptively, they do not create private rights that can be vindicated in litigation. Disputes about their application are fodder for diplomacy—negotiations and reclamations between the political representatives of concerned states, not lawsuits. Indeed, presumptions aside, the Geneva Conventions expressly provide for non-judicial dispute resolution. This “non-self-execution” doctrine was pivotal to the unanimous rejection of Hamdan's claims by the D.C. Circuit panel (one of whose members was now-U.S. Chief Justice John Roberts—who thus recused himself from the Supreme Court's consideration of the case). Yet the Supreme Court ignored it.

The Court's rationale was vague. At times, the 5–3 majority seems to have held that CA3 applied not because Geneva was independently enforceable but because it was implicitly incorporated when Congress enacted the Uniform Code of Military Justice (UCMJ). This was dubious to say the least: the UCMJ, which expressly recognized the president's constitutional authority to convene military commissions, mentions not CA3 but the “law of war.” It was the Hamdan Court that claimed this term included Geneva's CA3—a transparent cherry pick since, if the Court is right, there would be no reason “law of war” would not also include the Geneva provisions that make the treaty judicially unenforceable.

The Court was not clear that this supposed UCMJ incorporation was the only basis for making CA3 judicially enforceable. The majority elusively intimated that it could be vindicated as a treaty by private litigants (i.e., as if Geneva were a statute, like the Americans with Disabilities Act). This sets the stage of the next great battle for the shock troops the Hudson Institute's John Fonte has so aptly labeled “transnational progressives”—the vanguard of NGOs, global bureaucrats, and law professors molding a post-sovereign world based in “international human rights law.” Since the 1970s, a pervasive infrastructure of such “law” has been erected. It is heavily leftist, having been drafted, for the most part, by activist NGOs. American presidents, especially Jimmy Carter, felt comfortable signing on to much of it. After all, it was deemed more aspirational than binding, and no one wants to be framed as against “the Rights of the Child” and the like. If, however, the airy terms of these compacts—which no American legislature would dare have enacted—were suddenly to become judicially enforceable, this would mark a tectonic shift in American democracy from popular sovereignty to rule by judges.

Case in point: the rights of alien terrorists. Beginning in the late 1970s, fully recognizing that the Geneva Conventions do not, in fact, provide protections for terrorist organizations, human rights activists sought adoption of the so-called 1977 Protocol I Additional. This Geneva supplement, however, was rejected by the Reagan administration. The United States determined its adoption would legitimize terrorist tactics. That is, it would have been the antithesis of the humane and civilizing inspiration for Geneva because its effect would be the encouragement of more terrorism.

Thus with Hamdan, the unaccountable branch, the one the Framers excluded from life-and-death matters of the state, has entered the nation into the very suicidal treaty the people's elected officials sagely shunned. And what rights must be accorded under CA3 to savages seeking to supplant American democracy with a fundamentalist caliphate? Why, freedom from “outrages upon personal dignity, in particular humiliating and degrading treatment,” and “all the judicial guarantees which are recognized as indispensable by civilized peoples.” This is to say, capaciously promiscuous guarantees the parameters of which will eventually be determined not by those whose lives hang in the balance, but by federal judges.

There was a time, not long ago, when American courts were our bulwark, guaranteeing Americans a fair shake from their own government. Now, they are fast transforming into a supra-sovereign tribunal: a forum where the rest of the world, including our mortal enemies, is invited to press its case against the United States—a testament to the farcical conceit that a law degree and a prestigious judicial appointment render one fit to determine the security needs of the citizens from which one is blissfully insulated. Welcome to Hamdan's new juristocracy.