In a five—to—three decision the United States Supreme Court struck down the current use of military commissions to try al Qaeda detainees (Hamdan v. Rumsfeld, Case No. 05—184, 2006 US LEXIS 5185).  This case arose from a challenge to the military commissions by Osama bin Laden's chauffeur, Salim Hamdan.  Hamdan was charged with membership in a war—criminal enterprise and conspiracy to commit war crimes.  In this case Justice Stephen Breyer voted with the majority of Justices in all parts of the decision.

Justice Breyer has recently published the book Active Liberty:  Interpreting Our Democratic Constitution.  Here he presents principles he believes can be useful to judges as they interpret statutes and the Constitution. Justice Breyer sets forth the general principle that the Constitution has a 'democratic nature' (p. 5), and that this democratic nature should be taken into greater account when the Court interprets statutes, the Constitution, and presumably treaties.  Given the fact that Hamdan is a case largely arising out of the analysis of statutes, the Geneva Conventions, and procedures created by the Executive and utilized by the military commissions, this case provides valuable insight into just how Justice Breyer's principles of 'active liberty' really work.

Only those who favor a nakedly imperial judiciary can argue with the general principles that Justice Breyer so eloquently sets forth.  Based on his years of experience, he tells us that he has developed a view of the Constitution as a whole.  He emphasizes the fact that the Constitution, first and foremost, creates a government that is democratic with primarily 'democratic objectives.' (p. 6)  These democratic objectives of the Constitution protect 'active liberty,' which Justice Breyer defines as the 'liberty of the ancients'.  (p. 4).  This liberty preserves the right of citizens to participate in our government.  This participation is the sharing among citizens of a nation's sovereign authority.  Not only does active liberty preserve these participatory rights, it protects the rights of citizens to be free from oppression by the government; even a democratic government.

Justice Breyer emphasizes the language in the Constitution's Preamble and states that active liberty is based on the will of 'We the People.'  Because our government is a republic and not a direct democracy, Justice Breyer recognizes that the will of the people is manifest through elected officials.  Justice Breyer acknowledges the roles of the three branches of government, and in the name of separation of powers, the Justice celebrates judicial restraint.  He refers to the 'interpretative tradition' which requires judicial restraint 'basing that call upon both technical circumstance and democratic value.'  (p.17). He understands the limited expertise of the judge.  He advises that when interpreting the law judges should avoid the temptation to substitute their will for that of the people, as exercised through their elected representatives.

These principles articulated by Justice Breyer suggest a kind of judicial humility.  He encourages a willingness to defer to those who represent the people and to those who may know more than unelected judges. 

How, then, are these general principles advocated by Justice Breyer in his book implemented by Justice Breyer and the majority in the recent Hamdan case?  There are three issues taken up by the Court in this case that deal most directly with the democratic will of the people, so celebrated by Justice Breyer.  The Court's decision, supported by Justice Breyer, suggests something other than any real commitment to these principles. 

1)   'We the People' have spoken pretty clearly in the elections since 2000 and since the attacks of September 11, 2001.  Not only was the President comfortably re—elected in 2004, but his party and his policies made gains in the legislative branch.  These democratically elected legislators passed the Detainee Treatment Act of 2005.  This statute has a very clear provision denying jurisdiction to any court other than the DC Circuit Court for review of combatant status review tribunals and military commissions.  The Constitution gives Congress the power to establish or deny jurisdiction to federal courts. 

Not only is the statutory language denying jurisdiction to the Supreme Court clear, but, as Justice Scalia points out in his dissent, there is ample judicial precedent for the immediate relinquishment of jurisdiction in pending cases of this kind.  However, the majority, including Justice Breyer, ignored this clear expression of the will of the people and the volumes of precedent.  The Supreme Court took jurisdiction over and decided this case that was not to get past the DC Circuit Court. The desire of five Justices to oversee military commissions trumped the exercise of the people's active liberty as clearly expressed by Congress. 

2)   Congress overwhelmingly passed the 'Joint Resolution' authorizing the President to 'use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided' the September 11, 2001 attacks. There is ample precedent for the use of military commissions by the President to further this purpose. Furthermore, Congress has passed Article 36 of the Uniform Code of Military Justice (UCMJ),  which permits these commissions to use principles of law and rules of evidence that are generally recognized in criminal cases in the United States District Court, but only 'so far as he [the President] considers practicable.' This provision gives the President latitude in setting forth procedures depending on the circumstances.

Based upon the unique threat and the very dangerous tactics of radical Islam, intelligence sources and methods are extremely important.  In recognition of these legitimate concerns, and consistent with the Joint Resolution and UCMJ, our democratically elected President established procedures for military commissions that may require a detainee not to be present at trial.  The detainee may not, in some cases, see all the witnesses or the evidence against him.  However, his counsel may be privy to this evidence, although counsel may not be able to share this evidence with the detainee.  There are appellate procedures.  All these procedures stem from the statute and are based on the very real need, as recognized by Congress and the President, to protect intelligence and law enforcement sources, methods, and activities.  The personal safety of both witnesses and members of the tribunal must also be protected. 

Justice Breyer voted to strike down all of these procedures and to require that those who kill US civilians and soldiers, and who destroy US property be given the same legal protections as US servicemen.  This includes the right to see evidence and sources, and to confront witnesses as long as the defendant is not disruptive. When it comes to the protection of intelligence sources and American citizens, it appears that Justice Breyer and the other four Justices give more weight to 'Pinch' Sulzberger and the Editorial Board of the New York Times than to the elected representatives of the people, or to the military, whose expertise in these matters surpasses that of unelected Supreme Court Justices. 

So where is Justice Breyer's 'judicial restraint' and deference to the expertise of others?  Where is that veneration of those democratic principles that produced the legislation relied upon by the President and that is at the heart of Justice Breyer's active liberty?

3)  Over the years the Geneva Conventions have been signed by Presidents and approved by the Senate.  In so doing the people of the United States agreed that certain kinds of warfare will be governed by certain basic rules.  As Justice Thomas illustrates in his dissent, when agreeing to the Geneva Conventions the American people agreed to diplomatic enforcement rather than judicial enforcement of these Conventions.  The American people also agreed to certain protections to members of certain kinds of armed forces in Common Article 3 of the Geneva Conventions.  Common Article 3 deals with combatants in armed conflicts that are not international in character, i.e. civil wars.

Five Justices including Justice Breyer first determined that the judiciary and not the Executive Branch has jurisdiction to enforce these provisions, contrary to the language in the Geneva Conventions.  In a tortured analysis they also found that the conflict in which Salim Hamdan participated is not international in character.  This finding triggers Common Article 3 protections under the Geneva Conventions.  For Justice Breyer and the other four Justices, the war to take down the Taliban in Afghanistan, which involved a coalition of international forces led by the United States fighting radical Islamists from all over the world (Hamdan is from Yemen) is really a civil war.  This status of the war as determined by these Justices would then entitle these enemy combatants to all sorts of protections that they themselves regularly flout in their murder of civilians and beheadings of prisoners of war.  For these Justices, the enemy's consistent violations of the Geneva Conventions do not preclude them from the protections of the Geneva Conventions, and it is unlikely that this is what the American people using their active liberty agreed to.

Thankfully, Justice Kennedy, in an increasingly rare moment of lucidity, did not join in the entire decision which would mandate more procedural protections, and this portion of the opinion on the Geneva Conventions is not part of the law of this case.

In a very short concurrence in Hamdan Justice Breyer suggests that the President's reading of the plain meaning of the statutes and Conventions is some kind of a 'blank check' that Congress never conferred.   Justice Breyer then generously counsels that 'nothing prevents the President from returning to Congress to seek authority he believes necessary.'  So, according to Justice Breyer, the President must go to Congress to seek the authority that Congress has already given to him.  He celebrates democratic values in his book and feigns deference to Congress in Hamdan, while undermining its authority and substituting the power of the Court for that of Congress.

The late Justice Brennan and others who believe in the concept of the 'Living Constitution' are not terribly subtle. They believe that the Constitution must change with the times.  For them, there is no better arbiter of the times, the meaning of the Constitution, and what laws are wise than those nine Platonic Guardians on the Supreme Court. For them the very concept of interpretation is subordinate to their preferred political policies. Justice Breyer's 'active liberty' has pretensions of being more principled, objective, and less arbitrary.  Yet, as the Hamdan case shows, when faced with policies promulgated by elected officials that Justice Breyer does not approve of, he will strike them down as readily as any 'Living Constitution' devotee.

Based on his full support of the Hamdan decision, it seems clear that the rhetoric of active liberty is different than that of the 'Living Constitution', but the results are the same.  In The Merchant of Venice in response to Shylock, Antonio states that 'The Devil cites Scriptures for his purpose.'  (I iii 99).  When Justice Breyer cites statutes, constitutional provisions, and conventions, he, too, cites them for his 'purpose.'  This purpose is unrestrained, political, and partisan, and all of his learned eloquence cannot disguise this unfortunate fact.