As is often the case when serious matters are at stake, the part of the story that hits the papers isn't the most important or interesting.
Here John Yoo argues that the military commission bill Bush signed recently was not a capitulation to the Supreme Court (as it was played both in the MSM and in talk radio/Conservative pundit land), but a smackdown of it. Yoo pithily explains the problem we face on all issues: whether liberal or conservative, our legislators don't like to make tough calls, so they invite the courts to meddle everywhere:
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.
Usually Congress and the President just roll over (I started to write role over, which was a spelling error, but would have been apt). Not this time.
This time, Congress and the president did not take the court's power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court's habeas powers in wartime because it disagreed with its decisions.
The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.
In other words, another unheralded Bush-led triumph for the rule of law. Admittedly not as sexy as John McCain airing his quibbles, but I don't mind --and I don't think Bush does-- when the media miss the point entirely. Curtsy:
The Remedy
