Why Hamdan Is Not So Bad
Professor Jeremy Rabkin of Cornell, a leading critic of the liberal internationalist movement in the academy, offers a surprisingly soft critique of the Supreme Court’s decision in Hamdan (a decision that is fast becoming the new rallying cry for conservatives). Rabkin, a frequent critic of the ICC, the use of international law in constitutional interpretation, and many international law regimes in general, is far less worked up about Hamdan. It’s wrong, he says, but it is certainly defensible. Hence, Congress, which is supreme in this area, should be the focus now. He concludes:
It’s not necessary to damn the Court’s liberals or rant about disloyalty. The Court’s majority has asked Congress to clarify U.S. war policy in this area. The clarification should include the stipulation that war measures involving unlawful combatants shouldn’t be determined by ordinary courts. When it comes to terrorists captured in foreign lands, our priority can’t be litigation or even lawfare. We are waging war. And war is too important to be left to Supreme Court justices.
This sounds about right to me. The Court made a reasonable and justifiable decision and the advocates who fought for and won this decision are reasonable and fair people. Reasonable and fair people can be wrong, of course, but being wrong doesn’t make them traitors or criminals. I just wish both sides to this debate would keep this in mind.