High court says 'war on terror' is no war

The court feels that the president slighted Congress by unilaterally establishing military commissions. What is odd about this solicitousness for the powers of the legislature is that Congress, which is populated entirely by adults, had explicitly told the judiciary just six months ago that when it comes to Guantanamo prisoners, the judiciary should bug off.

The Detainee Treatment Act in December 2005 not only implicitly endorsed what the administration was doing with prisoners, it explicitly told the judiciary to leave the issue to Congress and the president to resolve, as they have historically.

The court's wanton overriding of Congress and the president is another in a long string of breathtaking acts of judicial arrogance. But it is fixable. The Republican leadership of the Senate responded to the court's highhandedness by immediately embarking on writing legislation establishing military tribunals.

The unfixable part of the Hamdan ruling, however, is the court's reading of Common Article 3 of the Geneva Conventions. The Geneva Conventions, which were designed to protect civilian populations and those combatants who respect them, were never intended to apply to unlawful combatants, terrorists of the al-Qaida kind. The court tortures the reading of Common Article 3 to confer upon Hamdan — and by extension the man for whom he rode shotgun, bin Laden — the kind of elaborate legal protections that one expects from "civilized peoples."

This infinitely elastic concept will allow courts to usurp from Congress and the president the authority to fashion the procedures for military tribunals — an arrogation that mocks the court's previously expressed solicitousness for congressional authority.

But no matter. Logic has little place here. The court has decreed: There is no war — or we will pretend so — and henceforth it shall be conducted by the court. God save the United States. (This honorable court can fend for itself.)

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Charles Krauthammer's e-mail address is letters@charleskrauthammer.com. Washington Post Writers Group