CT Blue

Recently the Supreme Court ruled, by the slimmest of margins, that prisoners at Guantanamo have the right to file habeas corpus actions challenging their incarcerations. In today’s Times, Jonathan Mahler, writes that in doing so the Supreme Court has bucked precedent:

“The most important thing we do is not doing,” Justice Louis D. Brandeis once said of the Supreme Court’s abiding humility, its overwhelming preference to allow the people, through their elected representatives, to govern themselves.

And never is the court more reluctant to act than when faced with a challenge to the president during wartime. Consider the historical record.

The court has ruled against a president in a time of armed conflict no more than a handful of times, most famously in Youngstown Sheet and Tube v. Sawyer, when it held that Harry S. Truman lacked the constitutional authority to seize the nation’s steel mills to avert a strike during the Korean War. The invocation of two words — military necessity — by a commander in chief was usually all it took to silence a majority of the justices.

So it is extraordinary that during the Bush administration’s seven years, nearly all of them a time of war that began on Sept. 11, 2001, the court has been prompted to push back four times. Last week’s decision in Boumediene v. Bush, in which the court ruled that prisoners at Guantánamo Bay have a right to challenge their detentions in the federal courts, marks only the most recent rebuke.

I would suggest that the five remaining more or less rational justices recognize something that Mahler does not: that we are not in a “time of war”, or that if we are, it has become a permanent state of war, therefore different in kind than previous wars in which there were, for instance, identifiable enemies and objective criteria by which to judge whether the war was over. Bush’s argument boiled down to this: The country is at war, therefore the president has untrammeled power. Whether the court would ever have accepted that is an open question, but there was another, usually unstated corollary. We will, henceforth always be at war, and therefore the president will always have untrammeled power. The question therefore is a stark one: does the Constitution limit the president, and secondarily the Congress, in a time of permanent war? If it doesn’t then the Constitution is a dead letter. Right now its survival depends on the vote of a single justice.