by JONATHAN MAHLER
Published: July 9, 2006
The afternoon before the Supreme Court handed down its instantly historic ruling in Hamdan v. Rumsfeld, Lt. Cmdr. Charles Swift, the Navy defense lawyer appointed to represent the man who has admitted to being Osama bin Laden's driver, Salim Hamdan, told me he was reading a minority opinion written 60 years earlier, in the wake of World War II, by one of the court's lesser-known justices, Wiley B. Rutledge. The case involved Tomoyuki Yamashita, a Japanese general who'd been convicted of war crimes and sentenced to death by a U.S. military tribunal, a verdict upheld by the court, 6-2, despite some glaring procedural deficiencies: among other things, the admission of hearsay evidence including propaganda films and unnamed witnesses.
When Swift and I spoke, Supreme Court watchers had already deduced that Justice John Paul Stevens would be writing for the majority in Hamdan. Back in 1947, the 27-year-old Stevens was Rutledge's clerk, so Swift was consulting Rutledge's dissent in Yamashita for clues.
Rutledge's opinion included these stirring words: "In this stage of war's aftermath it is too early for Lincoln's great spirit, best lighted in the Second Inaugural" — the spirit of magnanimity — "to have wide hold for the treatment of foes. It is not too early, it is never too early, for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than due process of law in the trial and punishment of men, that is, of all men, whether citizens, aliens, alien enemies or enemy belligerents."
Swift told me, "I think tomorrow's going to be a good day."
And of course it was. With the assent of four of his colleagues, Stevens ruled that the military tribunals created by presidential order in November 2001 to try enemies captured in the war on terror violated the Geneva Conventions and the Uniform Code of Military Justice and were therefore illegal. Stevens, it would seem, had absorbed his mentor's distaste for unbridled power. "He was finally able to vindicate those values that Rutledge championed," says Allison Danner, who clerked for Justice Stevens in the late 1990's.
So much of the conversation concerning the war on terror has focused on fear — for some, the fear of losing our freedoms, for all, the fear of another attack. It's easy to overlook the counternarrative of hope, whether it's Iraqi citizens braving violence to vote in free democratic elections, the declining confidence in bin Laden in a number of Muslim countries (according to a recent Pew Research Center poll) or our Supreme Court reminding us of the resilience of the principles upon which this country was built. "There are not many countries where a noncitizen with a fourth-grade education can sue the president," says Neal Katyal, the Georgetown Law professor who argued Hamdan's case before the Supreme Court. "That is our great gift to the world. We're strong enough to say our system can handle it."
Throughout our history, war has led to the abrogation of rights, from the Alien and Sedition Acts through the detention and internment of Japanese-Americans in World War II to the F.B.I.'s undercover infiltration of antiwar groups during Vietnam. More often than not, when asked to rule on the legality of these extraordinary measures, the Supreme Court has given the commander in chief a wide berth. This is understandable: "Judges, like other citizens, do not wish to hinder a nation's 'war effort,' " Justice William Rehnquist once wrote. And yet, when the court sets aside civil liberties and defers to the president, it acts out of fear; when the court checks the president and reaffirms those liberties, it acts out of strength — and, equally, hope.
President Bush has said that the war on terror presents unprecedented challenges and therefore demands a novel approach, the so-called new paradigm. It is true that we are fighting a new kind of enemy, one who is transnational, can wreak havoc on an epic scale and, in the case of suicide bombers, cannot be deterred by the threat of conviction in a court of law. But if the danger posed by this enemy is of a different character than we have encountered in the past, so, too, is the danger posed by our response to him. This is, after all, a war with no foreseeable end and a limitless battlefield. Left unchecked, the president could extend the reach of his wartime powers anywhere, ad infinitum.
Do we need to narrow the scope of certain liberties to defeat radical Islam? The majority opinion in Hamdan does not preclude this possibility, but it does prevent the president from acting unilaterally, while inviting — compelling, really — Congress to assume its own share of constitutional responsibility for the war on terror. Will Congress prove a more vigilant steward of our civil liberties? We cannot say. In the future, the balance of hope and fear will depend on many things, most notably whether we are attacked again. But we are at least assured of an admittedly overdue debate about the conduct of the war. Before Hamdan, that debate, such as it was, consisted of the executive branch telling us — or not telling us — how it was prosecuting the war and of the denunciations issued by the executive branch's critics. We were told that after 9/11, everything had changed — or that nothing had changed. Now that our fear will be tempered by hope, the real conversation can begin.
Correction: July 9, 2006
An article on Page 13 of The Times Magazine today about the recent Supreme Court decision that blocked the Bush administration's plan to try detainees at Guantánamo Bay by military commission misattributes a passage from a Supreme Court opinion 60 years ago that dealt with many of the same issues in the case of a Japanese war criminal. The dissenting opinion, about "the immutable rights of the individual," was written by Justice Frank Murphy, not another of the dissenters, Justice Wiley B. Rutledge.