For decades presidents of both parties have failed to take action as the attacks on our way of life have grown ever more outrageous. Presidential passivity makes the perpetrators bolder and more dangerous. It also atrophies our capacity to change course and take effective action.

No, I’m not talking about terrorists this time. I have the federal courts in mind. The Supreme Court issued a decision yesterday in Hamdan v. Rumsfeld which may have finally superceded Roe v. Wade as the most arrogant and unprincipled judicial assertion of power since Hammurabi promulgated his code.

The Court had no authority to hear the case, both because a statute clearly deprived it of jurisdiction and because the case presented questions no court is competent to address. If the Court was going to ignore these trifling impediments and decide the case anyway it should have issued a laugh track instead of an opinion. The case was utterly without merit.

Nonetheless the Court issued an opinion, a number of them in fact. Five Justices agreed that the President of the United States does not have the power to constitute military tribunals for the purpose of trying terrorists for violating the laws of war.

The irony here is exquisite.

Article III of the Constitution leaves the definition of the Supreme Court’s appellate jurisdiction up to Congress. In the Detainee Treatment Act of 2005 (DTA) Congress very clearly gave the Circuit Court for the District of Columbia Circuit exclusive jurisdiction over Hamdan’s habeas corpus petition. After the effective date of that statute the Supreme Court had no more authority to decide Hamdan’s case than the Arizona Liquor Control Board or the World Court in The Hague.

And yet five Justices have the temerity to use that case as a vehicle for pronouncing that the President is acting beyond his proper authority. Forget the old joke about the parricidal orphan; we have a new definition of chutzpah.

Justice Stevens writing for the Court goes through all kinds of gyrations trying to get around the clear language of section. He breaks out all the tools of statutory analysis including legislative history and uses them to construct a long convoluted argument which is entirely beside the point. Those tools are for discerning meaning where the legislature has been obscure. When Congress makes itself perfectly clear, those tools are useless, and the DTA is perfectly clear.

US President George Bush has refused to rule out military tribunals for inmates at Guantanamo Bay detention centre.

Republican senators immediately began planning how to win congressional approval for new tribunals.

By putting on hold military commissions to try terrorists for war crimes, five Supreme Court justices have made the legal system part of the problem, rather than part of the solution to the challenges of the war on terrorism. They tossed aside centuries of American history, judicial decisions of long standing, and a December 2005 law ordering them not to interfere with the military trials.

As commander in chief, President Bush has the authority to decide on wartime tactics and strategies. Presidents Washington, Jackson, Lincoln and FDR settled on military commissions, sometimes with congressional approval and sometimes without, as the best tool to punish and deter enemy war crimes. Bush used them to solve a difficult tension: how to try terrorists fairly without blowing intelligence sources and methods.