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Pyrrhic Victory

It has been almost a year since the Supreme Court decided Hamdan v. Rumsfeld and invalidated the military commissions the Bush administration created to prosecute individuals being held at Guantánamo Bay. At the time, liberals hailed the decision as a victory for checks and balances. Former Clinton administration Acting Solicitor General and current Duke law professor Walter Dellinger, one of the leading figures of the Democratic legal establishment, called Hamdan the "most important decision on presidential power and the rule of law ever." Cass Sunstein wrote on TNR Online that Hamdan was a decision of "immense importance." Finally, the courts were creating checks on the administration's war on terrorism.

But, as time has passed, it seems that Hamdan has not been the corrective it appeared to be at first blush. Last week, the Bush administration announced that it is planning to limit even further the ability of Guantánamo detainees to interact with their lawyers--precisely the types of limitations on rights that many thought Hamdan had started us down the path to avoiding. In reality, Hamdan is looking less like a grand promise to liberals and more like a grand disappointment.

The reason is that Hamdan was, fundamentally, a decision about the separation of powers--about what the executive branch can and cannot do without congressional approval. The Court decided that the military commissions the president had convened were improper not because they violated the liberties enjoyed by Hamdan or other individuals, but because the Bush administration had not first asked Congress for permission to convene them. Since September 11, the Court has largely avoided taking a stand on issues of individual rights, and Hamdan, in which rights concerns were secondary anyway, represented no change from this pattern.

As a result, Hamdan left the door open for the erosion of those rights. By focusing almost solely on the separation of powers, the Court has catalyzed a political process focused on national security, in which protecting individual rights has not been a priority. Rarely does Congress react so quickly to a Supreme Court decision as it did after Hamdan. Within months after the decision, Republicans and Democrats in Congress joined together overwhelmingly to pass the Military Commissions Act (MCA), which, with some important exceptions, represented as significant a limitation on individual rights as had been pursued by the Bush administration for years.

Thanks to the MCA, any alien detained by the United States--in Guantánamo or elsewhere--is largely stripped of the ability to challenge their detentions in court via a writ of habeas corpus. While Hamdan was a triumph for international human rights because it decided that the Geneva Conventions limited what the military commissions could do, the MCA states that the Geneva Conventions can never be the source of any claim of right in an American court, that the president has broad powers to tell us what the Geneva Conventions mean, and that only "grave" breaches of the Geneva Conventions are illegal.

Now that they have been sanctioned by Congress, these parts of our federal law are no longer simply the wild-eyed schemes of a politically damaged president; consequently, they are much harder to constrain. In fact, the newly Democratic Congress has not made any serious effort to repeal the MCA.

The problem with this separation of powers approach is not just that it invigorates a flawed wartime politics, but that it legitimates--rather than limits--what results from it. After Hamdan, political leaders can pass laws like the MCA without facing charges that they are disobeying the highly respected Supreme Court. Indeed, Congress and the president have done exactly what the Court told them to do: Work together to devise a solution. Because the Court in Hamdan and elsewhere has had so little to say about exactly what kind of solution is constitutionally acceptable, our political leaders can stand in front of the cameras and say that they are just doing what the Court said--even while they neglect many civil liberties concerns.

We should not forget, also, that other courts besides the Supreme Court are reviewing the war on terrorism. And, rather than having their attention focused on and governed by Supreme Court statements about individual liberties, these courts are instead following the lead of their judicial masters. When the D.C. Circuit decided in February that the MCA was constitutionally acceptable, it was not forced to apply any strong pro-rights language from the Court from Hamdan or elsewhere. Lower courts addressing the warrantless wiretapping program similarly have no clear guidance from the Court about whether this program violates our constitutional commitment to privacy. It is not surprising, then, that we can find very few decisions even by other courts standing up for rights.

For lessons about how things might have worked a little better if the Supreme Court had focused more on rights, we can turn to the highly instructive experiences of Canada and United Kingdom. Since September 11, the highest courts of both countries have issued landmark decisions clarifying what constitutional protections individual citizens have even during times of fear and panic. These decisions had supporters and opponents on both the right and the left, but, most importantly, they forced political leaders and courts alike to deliberate about some of the harms that individuals face when governments overreach--harms that these highest courts had specifically identified and indicated needed to be protected.

None of this, of course, is to say that Hamdan was wrongly decided, was not worth bringing, or was not hugely important in its own ways. It forced the Bush administration to defend and justify--at length and in open court--many of the tactics that it had been using and, perhaps, to pay some political price for its actions. And Hamdan was symbolically important, providing a clear statement about the limitations of presidential power--and the importance of the separation of powers--at a time when such a statement was badly needed. But none of this should let us forget that Hamdan had its limitations.

It is just a matter of time before many of the individual rights problems left unsolved by Hamdan return to the Supreme Court's doors. The aftermath of Hamdan should remind us, however, that even if the Court does issue another ruling of great excitement to liberals, what might appear at first to be a landmark victory for liberal causes might eventually become a disappointment.

By David Fontana