John Yoo, a key architect of the Bush administration's legal response to 9/11, had a provocative op/ed in last Thursday's Wall Street Journal. Yoo explained that, after the Military Commissions Act 2006,
It is not the presidency that "won." Instead, it is the judiciary that lost.
Quite, for there is truth in Yoo's gloating and schadenfreude.
By passing the Authorization to Use Military Force (AUMF) and, later, the Detainee Treatment Act (DTA), Congress attempted to lay out a clear legal basis for the war on terrorism. Both activated the President's war powers and, in so doing, modified the substantive rules of American law.
In a series of judicial decisions, Rasul v Bush, Hamdi v Rumsfeld, and Hamdan v Rumsfeld, the Supreme Court rejected these Congressional enactments Through mischief and chicanery, the Court weaseled its way around the substantive portions of the AUMF and DTA, thus forcing the administration to return, cap in hand, to the Congress for explicit authorization for every war-fighting program it wished to conduct. This, of course, is not how wars are fought, far less won.
The Military Commissions Act, as Yoo explains, ends all this. The Constitution gives Congress the power to determine the Court's jurisdiction, and so, by way of corollary, Congress can strip the Court's jurisdiction when it chooses. Instead of fiddling with substantive rules of American law, the MCA recognizes that the Supreme Court cannot be trusted not to meddle, and so withdrew the Courts' jurisdiction over many aspects of the war on terrorism. Given the Court's record thus far, this was the only proper option.
Whether or not the Supreme Court accepts the MCA's reach will be discovered in subsequent cases. For the moment – and regardless of how the Court acts – this is a stunning rebuke of the Supreme Court's role in the war on terrorism from the political branches.