The atmospherics on Hamdan

Yesterday on "MCS, one of my co-panelist, Jim Rowen, tried to get me to admit that the Hamdan decision means that Bush broke the law. On the way home this afternoon (I left early - sue me), I heard more of this on the same station. "Rick Esenberg was beside himself yesterday" apparently because Bush "broke the law."

There is, of course, a sense in which this is true. A majority of Justices - and, therefore, the Court - held that the type of military trial being held in Hamdan's case violated the Uniform Code of Military Justice and, perhaps, the common articles of the Geneva Convention.

But the phrase is also misleading in that when we use the term "lawbreakers," we generally mean someone who willfully ignores a clear legal command. We don't generally use that term to refer to a public position who takes a reasonable legal position with respect to his or her authority that is ultimately overruled by the courts. If we did, every President we have ever had - certainly everyone in the modern era of judicial review - would be a "lawbreaker" because everyone of them has lost cases in courts. Clinton, for example, argued that Hillary's healthcare task force could operate in secrecy. The courts said it could not. Is it fair to say he broke the law? Yes in one sense, but not quite in the way that we use that term in everyday life. Clinton also lost a case in which the Court held that a racial set-aside program amounted to unconstitutional discrimination and a host of others.

How do we know that Bush's position was reasonable? Without even getting into the merits, we know that the D.C. Circuit agreed with him. In Hamdan itself, three Justices agreed with him (and Roberts would have since he already ruled on the question while on the D.C. Circuit). All of the opinions in Hamdan occupy 185 pages in PDF format. To say that Bush was obviously wrong and willfully broke the law is ... obviously wrong.