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Friday, June 30, 2006

Justice Stevens, I've got an idea for you

Oh, shoot. I thought this was going to be good. Here's the rumpus:

(Ironically, Justice Thomas refers to Justice Stevens\' "unfamiliarity with the realities of warfare"; but Stevens served in the U.S. Navy from 1942 to 1945, during World War II. Thomas's official bio, by contrast, contains no experience of military service. Justice Stevens suffers another unwarranted ad hominim attack from Justice Scalia, who refers to Stevens' sarcasm)

Atrios and Kos have picked up on the "unfamiliarity..." part to blast Justice Thomas. I was ready to chime in (my suggestion would have been to have Stevens comment on Thomas's "unfamiliarity with the realities of racial discrimination" in the next affirmative action case). Here's some context for Thomas's quote:

As an initial matter, the plurality relies upon the date of the AUMF's enactment to determine the beginning point for the "period of the war," Winthrop 836, thereby suggesting that petitioner's commission does not have jurisdiction to try him for offenses committed prior to the AUMF's enactment. Ante, at 34-36, 48. But this suggestion betrays the plurality's unfamiliarity with the realities of warfare and its willful blindness to our precedents. The starting point of the present conflict (or indeed any conflict) is not determined by congressional enactment, but rather by the initiation of hostilities.

So, Thomas isn't talking strictly about Stevens, but rather about the joiners in the plurality opinion. Further, Thomas isn't talking about the realities of participating in a war -- soaking in a foxhole in Guadalcanal, for example. It's an unfortunate and unnecessary phrase, but Stevens's military service does not give him any special insight into the legal beginning of a war.

It's actually quite an interesting question, in this case at least. Did hostilities with Al Qaeda begin on September 11? With the bombing of the Cole? Sometime before? More importantly, how broad a circle do you draw to circumscribe Al Qaeda? Does it include the Taliban protectors, who were more or less content to stay in Afghanistan and brutalize women and infidels domestically?