SCOTUS reminds Bush of the rules

Posted on Thursday 29 June 2006

Everybody’s up in arms this evening about the Supreme Court’s Hamdan Decision:

The Supreme Court today delivered a stunning rebuke to the Bush administration over its plans to try Guantanamo detainees before military commissions, ruling that the commissions violate U.S. law and the Geneva Conventions governing the treatment of war prisoners.

In a 5-3 decision, the court said the trials were not authorized by any act of Congress and that their structure and procedures violate the Uniform Code of Military Justice (UCMJ) and the four Geneva Conventions signed in 1949.

Predictably, some on the right are apoplectic, while some of their counterparts on the left are gleeful. Since Polimom isn’t an expert in this area, it took some digging to find the bottom of the dogpile.

Basically, the Court said that as it stands right now, Bush does not have authority to order military commissions to try Guantanamo detainees; he requires Congressional authority (and he’s already said he’s going to go ask for it…)

So yes, the Supreme Court does seem to have clipped Bush’s wings a bit, and even delivered a bit of a smack upside the head by ruling that he’s overstepped his authority. To use Jack Balkin’s phrase, the Court has made a democracy-forcing decision:

I repeat: nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do. What the Court has done, rather is use the democratic process as a lever to discipline and constrain the President’s possible overreaching. Given this Administration’s history, that’s not necessarily a bad thing.

Read the entire piece; it’ll either peel you back down off the ceiling, or let a bit of helium out of your balloon (depending).

According to the SCOTUSblog, though, there’s far more involved in the Hamdan ruling:

Even more importantly for present purposes, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today’s ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons “shall in all circumstances be treated humanely,” and that “[t]o this end,” certain specified acts “are and shall remain prohibited at any time and in any place whatsoever”—including “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA’s interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

I have no idea, frankly, whether this interpretation is correct, but it’s certainly interesting.

All in all, I see this as a triumph for our system of government, with the Supreme Court performing precisely as it was designed to do.

Some excellent discussion and analysis can be found below (I’ll update as I come across more):

Glenn Greenwald

The Volokh Conspiracy

Outside the Beltway

Jon Swift


10 Comments for 'SCOTUS reminds Bush of the rules'

    June 29, 2006 | 10:05 pm

    You’re a complete idiot. If the terrorists successfully bring their war here because of the STUPIDITY and TREASON of you liberals, YOU WILL DESERVE THE BEHEADING THAT YOU GET AT THEIR HANDS. Idiot.

    June 29, 2006 | 10:17 pm

    Hmmm…. did I mention some folks were apoplectic?

    June 29, 2006 | 11:25 pm

    I’m not apoplectic, but I definitely have my reservations. It’s all fun and games until the next attack — and then we all scream again about how our government didn’t do enough to protect us.

    In responding this way I also have >this story in mind. In fact I have a lot of stories like these in mind.

    Clip those wings. Clip, clip, clip! No single clip seems detrimental, until eventually there aren’t enough feathers to keep the eagle airborne …

    June 29, 2006 | 11:38 pm

    Reflecting a little more. What bothers me is that I don’t see anyone but our administration attempting to craft a holistic, multi-pronged strategy to combat terror. Instead the rest of us consider cases one by one, becoming indignant when a reporter or whistle-blower exposes some anti-Constitutional action or program. Call it serial denunciation, instance after instance after instance. Who’s out there wondering what must remain in place for the whole to hold together?

    My son is good at knocking down the block buildings I put together. The day may come when he pauses first to appreciate the thoughtfulness and skill I’ve used in putting them together.

    When I hear about previously-classified programs to track down terrorists, my first response is typically appreciation: “I hadn’t thought of that.” Makes me glad we have experts crafting a multi-pronged strategy to defend us.

    There, I’ve said it. Now everyone else can go apoplectic on me. Enjoy yourselves …

    June 30, 2006 | 7:15 am


    I have enormous reservations about an executive branch that consistently moves outside our system of checks and balances. It just flat-out scares me, and has all along. Bush cannot act in a vacuum, and near as I can tell, that’s the upshot of the Hamdan decision. A wink and a nod from Congress is not the same thing as authoriization.

    The NYTimes’ (and others’) recent exposure of the Swift program is a horse of a different color. According to their own reporting of it, the executive branch did, in fact, have congressional (legislative branch) authority, and it was being operated within the rules.

    I simply am unable to compare a security leak with increasing expansion of executive power.

    June 30, 2006 | 9:06 am

    I certainly wouldn’t weigh a security leak against expansion of executive power.

    What I’m weighing are dozens upon dozens of security leaks, and legal challenges, and political attacks, against that expansion. When the fur’s done flying and we’re finally done ripping apart our executive branch for ever having unsheathed its claws … what will be left? Will we be back in the Clinton era of insignificant response?

    Please note that I believe you’re yanging against my yin here. I understand the importance of the rule of law, and holding our govenrment accountable. That’s a given. What I’m questioning is our lack of accountability in assailing our government’s efforts at protecting us. Serial denunciation is easy. Anyone can begin to play, and stop playing, at will. The serial denouncer is accountable to no one. The serial denouncer never needs to craft an alternate policy. The serial denouncer never needs to consider budgetary or human resource constraints. The serial denouncer can ignore the wider picture in order to focus on only those areas that interest him or her. And if the serial denouncer’s effect is to weaken our national defense, exposing us to future attacks, many rationalizations are available, among them: 1) it’s the government’s problem, not mine, 2) that’s the price of freedom, 3) I only played a small role compared to everyone else.

    Again, I understand your concern about constitutionality and the rule of law. I share those concerns. I would be surprised if you didn’t share my concern about the cumulative effect of so much serial denunciation. Will it yield a more legal America? Probably. Will it yield a safer America? I really don’t see how. And wait a second before you attack those two questions, because I have a third: will serial denunciation end up sacrificing safety in favor of legality in ways that the majority of Americans would not approve? … even the two-thirds majority needed for Constitutional amendment?

    I have to say yes, I think so.

    The hijacking occurs both ways. In one corner: a president who hijacks power into the executive branch to accomplish what he wants (which happens to be saving American lives). In the other corner: hundreds, thousands, perhaps millions of citizens with the power to hijack intelligence efforts by exposing them publicly.

    Personally, I know who I think’s gonna win. And that’s why I resort back to my three questions:

    First, I can’t help noting that the primary weapon the terrorists used against us was our own freedom.

    Second, I note that not one single terrorism attack has succeeded on American soil since 9/11.

    Third, when it comes to protection of liberty, I have a hard time siding with a citizenry that had the audacity to blame Bush for 9/11 after only eight months in office. When we have that kind of damned-if-you-do, damned-if-you-don’t attitude, I have a hard time blaming Bush for choosing the damned-if-you-do alternative that saves lives, rather than the damned-if-you-don’t option that risks another attack.

    What I’m not hearing in all this serial denunciation is any sense of scope. Or even dialogue. If it’s not legal, it’s illegal. End of story. Where’s the exploration? Reporters expose without investigating alternatives. SCOTUS justices strike down without imploring the executive branch to craft alternatives. Bloggers celebrate without weighing the price we pay in safety.

    Yin with my yin here.

    June 30, 2006 | 10:16 am

    forester (ah… it’s so nice to have your thoughts back in the mix…) –

    Yes indeed, I share your concerns about the cumulative effect of the attacks, or “serial denunciations” (interesting terminology). I agree even more fundamentally that we, as a nation, are not having a rational dialogue about what it is, exactly, we’re trying to accomplish — on either side of the equation.

    First, I can’t help noting that the primary weapon the terrorists used against us was our own freedom.”

    That is at the root of the discussion we need to have: exactly what is it that makes America different, and how much of that can we change without becoming something other than America?
    In May, I wrote:

    We can’t do that with this war, and if we can’t define the bottom of the slope we’re sliding down — if The War has no definable end — then the brakes won’t ever be applied to our loss of privacy and rights. These slow, individual encroachments on our lives and liberties will simply accumulate over time…. decades, or even lifetimes.

    When it’s all said and done, that long, drawn-out process could twist the very warp and weft of our country’s fabric and lead to the ultimate defeat – that we won’t be America anymore.

    Wasn’t that what Osama was after in the first place?

    The reach of the executive branch into individual liberties has precedent, but this “war” does not, and my angst, at least, stems directly from here.

    Yes, denouncements and attacks are undermining efforts, I think — but many Americans simply cannot recover from the trust that was broken on the road to the Iraq war. The breach is so vast, in fact, that I really can’t figure out how Bush has any chance to regain credibility, and without that, the challenges will no doubt continue.

    I am on record as being against impeachment, primarily because I think the entire administration would have to go… and there’s neither precedent nor plan for how we would do that. However, this problem right here — the distrust and thus inability to give credence to either side — is the one reason I can see its value.

    We don’t trust each other and we’re locked in internal conflict because of it.

    June 30, 2006 | 8:59 pm

    We don’t trust each other and we’re locked in internal conflict because of it.

    I can agree with this. And since a president is largely responsible for the political climate he (or she!) engenders, I chalk this up as one of my great disappointments in Bush’s presidency. I feel that, to a degree, we citizens bear a responsibility in the climate of distrust as well — it takes two to tango — but one person in a dance leads, and that should have been Bush.

    July 1, 2006 | 7:18 am

    Several other thought-grenades to toss into the room:

    1) There is one limit to the power of this (or any) President – it is the fact that no one can hold the office for more than 10 years (effectively, 2 terms.) W is outta there in Jan 2009 – no ifs, ands, or buts. So, his Administration’s so-called ‘attacks’ on our civil liberties will come to an end.

    2) A subsequent Administration may choose to reverse those policies which they don’t agree with. And, if the people are riled enough, the next Administration will be under some pressure to do so.

    3) As has been pointed out, W has been really the only one to take a holistic view of combatting this new enemy. And, as in not unusual in a new situation, he has made some mistakes, some decisions that we don’t like or agree with. However, as is also (usually) the case, he has learned (some some extent – how much may be debatable) from his mistakes, and I suspect his successor will build on his work (unless the next Administration decides that the only course of action is to ‘cut and run’, and order all US residents to swear fealty to Allah, or face beheading by the sword.)

    4) This war is truly like no other. Unlike previous wars against nation-states, it is not so easy to define ‘victory’, and thus allow us to determine that the conflict is at an end. Is it when we deliver Osama’s head on a silver platter? Is it when Islamo-fascism is no longer a player on the world stage? Is it when the giant meteor slams into Earth, and obliterates all life in a new Ice Age? However, it is also not like that phony “war on drugs”, which was sort of the precursor to this, and which should have served as a warning – but didn’t – to the dangers that lurk when you mix law-enforcement and military matters.

    5) My last observation: I would submit that the decline in our civil liberties began, not with W on 9/12, but a whole lot earlier – with the advent of the War on Drugs, or the Gun Control Act of 1968, or the various decisions of the ‘activist judiciary’ – which can ultimately be traced back to a desire for security above all else, and an abdication on the part of the citizens of this nation of their role as a Sovereign People – when you are willing to leave the decision-making to others, why do you complain so when you don’t like the decisions?


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