Mark Steyn (and me) on the Supreme Court

Court finds a right to jihad in the Constitution

In the article above, Steyn strongly attacks one element of the US Supreme Court decision against the military commission process (namely, the application of a part of the Geneva Conventions to a captured al Qaeda member.)

His basic argument is a summary of part of the dissenting judges' opinion, which is well worth reading in the original. An extract (which makes more sense if you read Steyn's article first):

The President's interpretation of Common Article 3 is reasonable and should be sustained. The conflict with al Qaeda is international in character in the sense that it is occurring in various nations around the globe. Thus, it is also "occurring in the territory of" more than "one of the High Contracting Parties." The Court [the majority, I think this means] does not dispute the President's judgments respecting the nature of our conflict with al Qaeda, nor does it suggest that the President's interpretation of Common Article 3 is implausible or foreclosed by the text of the treaty. Indeed, the Court concedes that Common Article 3 is principally concerned with "furnish[ing] minimal protection to rebels involved in ... a civil war," ante, at 68, precisely the type of conflict the President's interpretation envisions to be subject to Common Article 3. Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3. But where, as here, an ambiguous treaty provision ("not of an international character") is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive's interpretation.

The Australian media was full of "Howard should embarrassed" commentary on this, with Michelle Grattan particularly harsh:

Howard claims he is not embarrassed by the American judgement. He should be. In retrospect (and for that matter, at the time), the Government's November 2003 statement accepting the military commissions looks craven.

Maybe it would if 3 Supreme Court judges had not agreed with Howard and Bush. There is no acknowledgement in Grattan's article that it was a 5/3 split decision. Yes of course that is still a "win", but split decisions (or at least close ones) mean the losing side has not lost face completely.

And I suspect that any non lawyer reading it can see that the dissenting judgement is far from implausible in its reasoning. It was also expressed in strong terms. Take this opening paragraph:

On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, "no court, justice, or judge" shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the Court today concludes that, on what it calls the statute's most natural reading, every "court, justice, or judge" before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised.....

And from way further down, where they consider the majority's other arguments even if they are right on the jurisdiction to hear issue:

We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11--even if their plots are advanced to the very brink of fulfillment--our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists "redhanded," ante, at 48, in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President's ability to confront and defeat a new and deadly enemy.

Of course, I am no expert on US law, but a reading of the dissenting judgement does give the impression that it was the majority that was pushing the interpretative envelope here, not the dissenters.

National Review's editorial on the decision is white hot with anger, and having looked at the case now, I can see why. The editorial seems very well argued to me.