On the last day of the Supreme Court’s term, Tom Goldstein, the prominent D.C. appellate lawyer who served as second chair representing Al Gore in Bush v. Gore, participated in a panel hosted by the liberal American Constitution Society at the National Press Club. In the middle of the symposium, Goldstein received word concerning the result of one of the final cases of the term, and raised his hands as if to signal a touchdown. When the moderator asked whom the “touchdown” was for, Goldstein declared: “The Good Guys.” The case was Hamdan v. Rumsfeld, and the victorious party was Osama bin Laden’s purported personal driver and bodyguard, Salim Ahmed Hamdan. Goldstein was not alone: From legal academia, to Capitol Hill, to the mainstream media, to the blogosphere, liberals have expressed undue exuberance concerning the outcome of Hamdan, and thereby reaffirmed why many Americans are reluctant to trust liberals on questions of national security.
Liberal legal scholars and practitioners were among the first to offer their thoughts on the Hamdan opinion. Walter Dellinger, the former acting solicitor general for the Clinton administration, exclaimed that “Hamdan is simply the most important decision on presidential power and the rule of law ever. Ever[,]” and concluded that “[t]his really is a wonderful day for the rule of law.” It is simply absurd to call Hamdan the most important decision on presidential power ever. This is not a partisan judgment; it is the simple legal sense of the matter. Much of Hamdan is little more than a questionable patchwork of statutory interpretation. That portion of Hamdan which addresses presidential power simply applies the principles announced in the Youngstown Sheet & Tube—the infamous steel-seizure case. The Youngstown case is widely regarded as the most important case on wartime presidential power, and it is difficult to see how anything but misplaced liberal glee arising from this administration’s loss could cause anyone to suggest that the modest application of Youngstown’s ideas makes Hamdan somehow more important than Youngstown itself.
Not to be outdone, Michael Ratner, president of the Center for Constitutional Rights, responded to Hamdan in a more effusive fashion, stating that “[i]t doesn’t get any better.” The responses of Ratner, who filed an amicus brief in Hamdan, and Goldstein, who was one of the attorneys representing Hamdan in the Supreme Court, are partially explained by simply the excitement of winning. Even so, the statements lacked anything resembling prudence or good judgment. A lawyer representing Jeffrey Dahmer would have been ill-advised to issue a statement saying that the “good guys” won if he succeeded on a claim against the government, and a sophisticated lawyer representing Osama bin Laden’s bodyguard should be expected to have at least that much sense at the National Press Club.
While liberal lawyers may have overstated the importance or the merit of the opinion, they at least seemed to have some idea about what legal issues were at stake. Not so the Democratic politicians, who have asserted that the decision recognized constitutional rights for non-citizen detainees held at Guantanamo. Minority Leader Nancy Pelosi said, “This is a triumph for the rule of law. The rights of due process are among our most cherished liberties, and today’s decision is a rebuke of the Bush Administration’s detainee policies and a reminder of our responsibility to protect both the American people and our Constitutional rights.” Dianne Feinstein appeared on This Week and defended Pelosi’s statement, compounding it by suggesting that the president and Congress should work together to draft legislation to create either “a special authorized commission, or… a military tribunal… that gives the detainees the rights that the Constitution provides.” But the Hamdan court did not find that the Constitution grants the detainees any rights, or that it prohibits the president, if (or, should I say, when) authorized by Congress, from using the very tribunals that he established to try the detainees. Pelosi and Feinstein’s statements may resemble the opinions of their liberal constituencies, but they do not resemble the Court’s opinion in Hamdan.
The hyperbolic reaction of the Left seems particularly ill-advised given that the Hamdan opinion will have little lasting practical effect: Congress has already made clear that it intends to grant the president the authority to utilize some kind of military commission. Despite several prominent Democrats supporting some form of legislation, there is caustic liberal sentiment against granting the president any such option. One of the first comments on the Daily Kos after Hamdan was issued summed up this position: “Democratics [sic] in Congress need to be told in no uncertain terms that they shall not vote to allow these tribunals. We need to put the electoral gun to their heads and make sure they march in the right direction on this.” Of course, these orders would march the Democrats right out of Congress. Offering what may be an even more extreme sentiment, Richard Cohen in the Washington Post argues that rather than granting the president authority to use tribunals, Congress should question the war itself: “[w]hatever the case, a hitherto compliant Congress ought to pick up on the Supreme Court’s suggestion that it tell the president how detainees should be handled—and go even farther, taking a hard look at whether an unrestrained war on terrorism, like the war in Iraq, is an exaggerated reaction to an exaggerated threat.” And Professor Mark Graber, responding to the legislative momentum, laments the bloodthirsty plebeians that populate his country: “Those us who believe in the principles of Hamdan also need to recognize that a great many Americans are so scared, they are willing to slaughter numerous innocents if there is the possibility of getting a terrorist among the bunch, so that due process seems a luxury we can no longer afford.”
Despite the fact that the public generally trusts Republicans more on national-security issues than Democrats, the latter have been given a golden opportunity to capitalize on growing public disapproval of the Iraq war. But at every turn, liberals overreach, overreact, and, quite frankly, give the American people reason to distrust their judgment. Hamdan is just the latest example. While liberals enjoyed a short-lived victory before the Supreme Court, their excessive celebration is likely to bring about additional losses at the polls, cast by Americans who don’t think that the good guys won.
Robert Alt is a fellow in legal and international affairs at the John M. Ashbrook Center at Ashland University.