http://fredericksburg.com/News/FLS/2006/072006/07022006/203471

How tightly does a Supreme Court ruling handcuff the administration's War on Terror?

Date published: 7/2/2006

No tribunals

What should we make of the Supreme Court's smackdown of executive power?

GEORGE W. BUSH isn't the first president to claim broad powers in dealing with an international threat. "The transaction of business with foreign nations is Executive altogether," believed Founder Thomas Jefferson, while Harry Truman noted, without perturbation, that the American people every four years elected a dictator in foreign policy. And, of course, neither Jefferson nor Truman had to deal with a nebulous enemy whose fondest hope is to use available technology to turn an American megalopolis into a morgue.

The Supreme Court's 5-3 decision last week in the case of Hamdan v. Rumsfeld, involving a former driver of Osama bin Laden now held at the military's Guantanamo Bay detention center, nonetheless trimmed presidential power, declaring illegal the military tribunals set up by the administration to try the Gitmo prisoners. This left to dissenting justice Clarence Thomas the defense of Mr. Bush's prerogatives. "[W]e are not engaged in a traditional battle with a nation-state," wrote Mr. Thomas, "but with a world-wide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of Sept. 11."

Yet the majority decision does no apparent harm to the nation's security. Mr. Bush can reconstitute the military tribunals if Congress passes enabling legislation. Or, said the majority, he can bring the military commissions into line procedurally with the courts-martial created by the Uniform Code of Military Justice. In that case, defendants would have the right to appear at their trials and to examine prosecution evidence, abilities denied by the tribunal system. What the president cannot do is anything he pleases merely because the nation is effectively at war. Yet the high court's ruling frees no prisoners, and it prevents no future detentions of those who would kill us and destroy our way of life.

This isn't to say, however, that Americans should be all smiles about the ruling. The court majority foolishly suggested that the inmates at Gitmo enjoy the protections of the Geneva Convention. This dishonors true soldiers everywhere, whatever their beliefs. The Taliban and al-Qaida fighters scooped up during the late-2001 invasion of Afghanistan by coalition forces wore no uniforms and observed no rules of warfare above the fang-and-claw level. Pious brigands, they brutalized the defenseless, killing as they pleased. The Wehrmacht and Gen. Giap's soldiers, as POWs, deserved humane treatment; for any kindness beyond a well-placed bullet, the average Gitmo detainee can thank the spirit of charity, not Geneva.

Also disturbing is what the court's ruling portends. Just how many Geneva rights can the 460 or so Gitmo prisoners legitimately assert? How many other extraordinary presidential programs related to the war on terror are illicit? Must Congress always give its assent? (Generally, far from being thwarted, Congress has been happy to let Mr. Bush run the war.) A rope here, a rope there, and will Mr. Jefferson's "Executive" end up like Gulliver, large, strong, but immobilized in a crisis that demands operational flexibility?

The answers are murky. This is indeed a new kind of war, and that fact, which will continue to test the wisdom of our leaders, is unfortunate for many. That these include people who started the war and now reside in a limbo their savagery helped create seems somehow just. Yes, each Gitmo detainee deserves a fair hearing, but Executive Communique No. 1 for the worst of civilization's enemies should be: Life's a bitch.