Yoo writes a piece regarding the Military Commissions Act-2006 deviating from the chaos that has been created about the issues in the bill itself. He writes about the bigger picture: The Supreme Courts audacity at trying to insert itself in the war on terror.
The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor "combatants" in an internal civil war under Article 3.Read the whole article here.
Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged. After all, it has gotten away with many broad assertions of judicial authority before. This has been because Congress is unwilling to take a clear position on controversial issues (like abortion, religion or race) and instead passes ambiguous laws which breed litigation and leave the power to decide to the federal courts.
Fact is there are standard procedures that have been followed throughout history, and the Supreme Court made a very disturbing and deliberate decision to involve itself in war time policy. If not for this, there would have not been the need for the Military Commissions Act-2006, nor the pandemonium that preceeded it or followed it.
The Supreme Court's Hamdan decision gave credence to terrorists believing that they can not only plan attacks against our country, but they can then use our civilian court system to bypass punishment for doing so.
Thoughtful critics point out that because the enemy fights covertly, the risk of detaining the innocent is greater. But so is the risk of releasing the dangerous. That's why enemy combatants who fight out of uniform, such as wartime spies, have always been considered illegals under the law of war, not entitled to the same protections given to soldiers on the battlefield or ordinary POWs. Disguised suicide- bombers in an age of WMD proliferation and virulent America-hatred are more immediately dangerous than the furtive information-carriers of our Cold War past. We now know that more than a dozen detainees released from Guantanamo have rejoined the jihad. The real question is how much time, energy and money should be diverted from winning the fight toward establishing multiple layers of review for terrorists. Until Hamdan, nothing in the law of war ever suggested that enemy status was anything but a military judgment.Congress to courts: Get out of the war on terror. AMEN.
Others Posting: Althouse, The Volokh Conspiracy, Blue Crab Boulevard, Penraker, Dumb Ox News. It Shines for All.
[UPDATE] 10/20/06- Wapo decides to add it's two cents (not worth even that much though) and others posting on this: The Strata-Sphere, Outside the Beltway, Volokh Conspiracy.