Rosa Brooks, Georgetown law professor and LA Times columnist extraordinaire, unpacks
the Khadr/Hamdan dismissals today in an op-ed (incidentally, fun fact: most folks think op-ed stands for "opinion-editorial" when it actually means "opposite editorial," and refers to physical placement in the paper).
She neatly sums up the issue:
That's where we come to the heart of the problem, the issue that led the two judges to toss out the cases against Khadr and Hamdan. Congress only gave the commissions jurisdiction over "unlawful enemy combatants." But the detainees have never been determined to have done anything that made their combatancy "unlawful," and, as Judge Allred noted, the definition of "enemy combatant" used by the earlier review tribunals was broad enough to potentially even include civilians not actively involved in hostilities. As a result, the judges concluded that they lacked jurisdiction to try the detainees.
Reading between the lines, it appears that the judges thought that the Bush administration wanted to have its cake and eat it too: declare all terror suspects "enemy combatants" in a "war on terror" and also try them for actions such as seeking to kill U.S. troops in that war. But you can't have it both ways; under the laws of war, if Al Qaeda suspects are combatants, it's not unlawful for them to kill U.S. troops.
The real irony? While the military commissions have floundered, civilian courts have convicted numerous high-profile terror suspects. If the administration hadn't been so fixated on declaring "war" on terror, many of the suspected terrorists at Guantanamo might have been convicted long ago.
That last point is the most important. And, with all modesty, I think it also deserves a little addendum. One also needs to ask WHY the administration was so eager to transform a law enforcement matter into warfare. The answer lies in the particular brand of conservatism practiced by certain members of the administration (David Addington and Vice President Cheney, most notably).
The idea here is that the power of the presidency, as an office, has been usurped by the courts and Congress following the betrayal of the public trust that was Watergate. Accordingly, Cheney acolytes believe that it is a duty of their office to wrest back control from the people's body and "activist judges."
What's one effective way to do that? As detailed by journalist James Mann in his excellent book about the seeds of Bushite foreign policy, Rise of the Vulcans, many in the administration believed (and believe) that flexing America's military muscles---that is using the troops in active combat---is a great way to bolster the president's political power. That is, a wartime president can make lots of executive decisions, no pun intended, simply by invoking the mystical incantations of "commander-in-chief" or "national security."
And that's exactly what the administration has done.
What is truly ironic, however, is that the executive primacy guys and gals don't realize just how strong the office of the president has become since Watergate, and especially after the Reagan administration. The use of what are effectively presidential edicts (executive orders, military orders, etc.) to implement policy has grown
since Watergate. Executive branch secrecy and insulation from Congressional or judicial scrutiny is at a high water mark. Checks and balances that we used to take for granted (can you say NSA?) have been secretly eroded.
What's happening now? A la Watergate, the president-first crowd is suffering a wave of blowback. And, what's really, really ironic, is that with the new Democratic Congress, the Cheney-esque campaign to "restore" the power of the presidency may actually weaken that office because of the loss of public trust.
Perhaps that's all part of the constitutional scheme, but we're in for trouble in the short term.