Discussions at Sound Politics at posts on positions taken by Maria Cantwell and Darcy Burner on the topic of policy toward terrorist detainees drew out of a number of liberal commenters raising objections. In follow-up to their concerns, allow me to point out an op-ed by John Yoo in yesterday's Wall Street Journal. Yoo directly confronts standard liberal arguments against the tribunal bill.

Yoo lays the context:

The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor "combatants" in an internal civil war under Article 3.

Yoo further chides the Court majority, and by extension liberals holding to the same position:

Until the Supreme Court began trying to make war policy, the writ of habeas corpus had never been understood to benefit enemy prisoners in war. The U.S. held millions of POWs during World War II, with none permitted to use our civilian courts (except for a few cases of U.S. citizens captured fighting for the Axis).

And on the topic of asserting the jurisdiction of the Executive and Legislative branches over such matters, Yoo ends with a flourish:

This time, Congress and the president did not take the court's power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court's habeas powers in wartime because it disagreed with its decisions.

The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.

All this went overlooked during the fight over the bill by the media, which focused on Sens. McCain, Graham and Warner's opposition to the administration's proposals for the use of classified evidence at terrorist trials and permissible interrogation methods. In its eagerness to magnify an intra-GOP squabble, the media mostly ignored the substance of the bill, which gave current and future administrations, whether Democrat or Republican, the powers needed to win this war.

All of the above are policy developments Maria Cantwell voted against, and about which Darcy Burner says she is "ashamed." More importantly, Yoo lays out a compelling case, in follow-up to this Los Angeles Times op-ed decrying the Hamdan decision, that runs contrary to all the liberal mythology surrounding the Court's ruling. Such misunderstanding of the balance of powers seems typical of the liberal base, as seen in Nancy Pelosi's description of the infamous Kelo decision:
"It is a decision of the Supreme Court, so this is almost as if God has spoken."

Not quite. And if I might say so, thank God.