Balkin on Hamdan: Jack Balkin has a very nice post Hamdan as a Democracy-Forcing Decision, the essence of which is:

What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.

(Read the whole thing.) It has long seemed clear to me and many others who are otherwise sympathetic to its policies that the Bush administration made two colossal errors in prosecuting the general war on terror.

First: Not seeking quick explicit congressional authorization for such policies as incarceration, military tribunals, etc. The Hamdan case was just one result of this failure. Now, such involvement is much more difficult to accomplish; then it would have been relatively easy. Just not as easy as going it alone, which has proved to be the harder course in the long run.

Second: Not involving the American public directly in supporting the war. Tax increases or a military draft were not needed for this. But bond drives, resource collection, and other assistance-to-the-military programs — even better, some form of volunteer genuine militia service — in the wake of 9/11 would have given the public some ownership of the resulting policies. Many called for these sorts of initiatives at the time. They were waiting to be asked to pitch in and help. Instead the administration adopted a Vietnam-type strategy of "We'll handle things; you all go about your business." Which leads to bad reactions when "things" do not go as smoothly as expected.

The administration essentially opted for a one-branch war, and the country is now paying the price for that decision. While the failure to involve Congress is merely hard to rectify at this point, the failure adequately to involve the public may now be impossible to remedy.

Neither of these observations is original to me. Both points were made by others when the GWOT began, which is why it is not hindsight to point them out on a day that a very large chicken has come home to roost.

There are important lessons to be learned here for future wars, both conventional and asymmetric. I am no expert on military strategy, etc., and for this reason do not blog about it. But this falls more into the domain of political or constitutional theory, and tells us something important about the value of the separation of powers. Jack's basic point is that the Court is giving the administration a mulligan. But the do-over will be much more difficult than the initial shot would have been. It did not have to be this way.

(Civil comments only please.)

Update: Some of the comments have concerned the militia suggestion alluded to above. I raised this possibility on 9/18/2001 (so please forgive its emotional tone) in an essay Saved by the Militia: Arming an army against terrorism. Of course, the merits of this particular form of citizen involvement are somewhat tangential to my principal point about the cost of insufficiently involving the public in a major war like the GWOT. And my original post did not concern the correctness of the Court's decision in Hamdan--especially its decision to reach the merits of the dispute. I was merely commenting on Balkin's insights about its scope and affect.

Rooting for Your Team: I just had another thought about citizen involvement in the GWOT. Many have long contended that organized sports is an emotional substitute for warfare. Consider how involved fans become with their teams. They even buy at great expense "official" clothing and wear it to show their support. Teams cultivate their fans, at least smart ones do.

However, unlike WWII, with this real war, no such "official" involvement exists. And given press coverage of the war, you cannot even stay reliably informed of its progress — unless you follow blogs, of course, but that is a highly niche audience. The only box score you get is how many soldiers and Iraqi civilians have been blown to bits each day. This is like following a team by reading just the daily injury reports (which true fans do read).

To push the analogy to the breaking point. Think of the NFL players in the backfield on a defensive stand waiving to their arms to get the fans to scream. Think of the effect of a home team quickly falling behind in a game, so they lose their "home-field advantage." The obvious analogy here is to efforts to support the troops, etc.

But here is where the analogy breaks down, but in an illuminating way: In asymmetric warfare, unlike in sports, terrorists are hoping they do not have to defeat the opposing players on the field. They just have to sufficiently demoralize the "fans" until their players get "redeployed." So their actions are aimed at the fans, through the media, as much as at their opponents on the field. Which is all the more reason why cultivating fan or, rather, citizen involvement with a real war is even more important than with war-subsitutes like organized sports. With American wars prior to Korea, this seems to have been better understood by the administration in power.

(Civil comments only please)