For its ruling in Hamdan v. Rumsfeld, limiting presidential powers to place detainees at the Guantanamo facility before military tribunals. The central issue in the matter is not the treatment of the detainees; this is not Abu Ghraib. It is simply but crucially a matter of the powers of the commander in chief in wartime, but a very uncertain kind of wartime. And so the Supreme Court has tossed the ball back where it belongs: to Congress. A number of leading senators have suggested that they will introduce legislation that, essentially, would codify what has been executive branch policy toward the detainees, and there’s a strong argument in favor of the policy; indeed the “Detainee Treatment Act of 2005,” cast in the press as an “anti-torture” bill, gave great latitude in handling detainees. Having been captured while participating in a terror war against the United States, the detainees, like irregulars throughout history, do not deserve to be treated as soldiers on a conventional battlefield or simply as criminals.
Nonetheless, there needs to be a legal framework that governs their treatment, and it’s not for the president to make law unto himself. Indeed, one of the gravest mistakes of the Bush administration has been its failure to build more than the narrowest sort of support for the post-Sept. 11 “Long War.” Energy in the executive is crucial to victory in war, but the legislature — “the people” in the Clausewitzian trinity — has a vital role to play.