As I alluded, the SCOTUS handed down its decision yesterday in the case of Hamdan v. Rumsfeld. (You can read the full decision [PDF] here, but be warned it’s 185 pages long and is written in the notorious legalese we all hate.) The Court’s findings in this matter are quite clear; they adamantly rebuke the Bush administration and its practices. This is a significant body-blow to the president who would be king.
While I won’t delve into a point-by-point analysis, there are several items that are worthy of note.
Most important and most obvious is the Court’s declaration that the office of the president does not have unlimited powers even in a time of war. On the contrary, says the Court, the president must work with the other two branches if more authority is needed. The Justices specifically state that the president has never been granted the expanded authority he claims to hold.
Also of note are the precedents set by this decision. One: The president is not above the constitutional checks and balances between the three branches (i.e., he does not operate in a vacuum). Two: The president is bound by the same laws which he is empowered to enforce, and that includes the Constitution and international laws. He can not act outside of the confines of these boundaries.
Specific to the case, the Court declares military tribunals for Guantánamo detainees outside of the purview of the president. Having never been authorized to hold such tribunals and lacking empowerment under current laws to arbitrarily implement such a process, the chief executive can not pursue that course of action. If such an approach is felt necessary, the president is specifically instructed to work with Congress to change the laws. Justice Stephen Breyer went so far as to say, “Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here. Nothing prevents the president from returning to Congress to seek the authority he believes necessary.”
The SCOTUS makes clear that the Executive Branch is obligated to uphold and enforce treaties to which the United States is a signatory. They specifically note this includes the Geneva Conventions. The Court states Common Article 3 of the conventions applies even to the conflict with al-Qaida. Unlike the administration’s assertions to the contrary, the Court states that a conflict is a conflict, a war is a war, and we must adhere to our obligations under such circumstances even if we choose to call prisoners “enemy combatants” rather than POWs.
Common Article 3 of the Geneva Conventions declares torture illegal. It states those detained as part of a conflict “shall in all circumstances be treated humanely.” To that end, specific acts “are and shall remain prohibited at any time and in any place whatsoever.” What acts are we referring to? Among them, “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” The Court unbendingly states the Bush administration (and, therefore, any presidency) must adhere to said restrictions and follow the letter of our obligations in this regard. This should bring a halt to waterboarding, hypothermia, and many other confirmed practices currently in play within America’s intelligence and military operations. We’ll see.
Because violations of Common Article 3 are globally defined as war crimes, and America’s War Crimes Act also covers such actions, perhaps Bush and crew can find a seat next to Saddam Hussein at The Hague. I’m sorry to report Slobodan Milosevic won’t be able to make it.
The Court found that, as part of the Uniform Code of Military Justice, the administration was required by Congress to comply with the rules of law when creating and implementing military commissions. Again, they simply enforced existing law and declared that the president did not possess the authority to violate such statutes. This finding also shows that the Commander in Chief was not even following the essential military conduct code to which we bind all combatants.
The Court apparently does not agree that 9/11 reshaped the judicial landscape, nor did it suspend our own laws or international laws to which the all-inclusive “we” are bound. At no time did they confirm any branch of the government could be held immune to the implications of law, and most assuredly not those we enforce on others (individuals, governments, states, etc.). What’s good for the goose…
Because the SCOTUS declared that congressional authorization for military action did not automatically extend the powers of the presidency beyond the scope of the law, there are tremendous implications for things like the domestic spying scandal. Specifically, the Court rejected claims that the broadly stated authorization from Congress dealt the president an open hand to violate the law as he deemed necessary. In fact, the decision makes quite clear that the rule of law is absolute, and that includes the president. The point, says the Court, is that no previous move by Congress has authorized the president to act outside the law under any circumstances.
Repeatedly emphasized in the ruling is the shared powers within our government. Many times the president is clearly told he must work with Congress and the courts. One easily sees the Supreme Court rather stridently signaling Congress does indeed have a significant role to play in regulating and enforcing limits on presidential conduct. This appears to be a clear and constitutional unwillingness to allow the Chief Executive to act freely and without constraint or oversight in matters of war and national security. In fact, Justice Breyer even went so far as to say, “The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.'”
This is a key test of constitutional checks and balances. If Bush ignores the ruling and continues with his own agenda, he is crippling the judiciary and forever negating its role in America. He has already accomplished this with Congress by way of his signing addendums to their laws; each has said he is not bound by rules set in the Constitution or by Congress, and he unarguably states his position is only obligated to enforce them on others. Unless his intention really is to pave the way for true despotism and subsequently kill all freedom and democracy in our country, a goal for which he’s on the right track, we must at least hope he will adhere to this ruling and its many implications. I’m disappointed to admit I am not entirely convinced King George will make the right decision in this matter.
Because I do not want a monarchy, I celebrate this decision by the Court. These are real limits being placed on the president, notable especially in that it relates to national security where the Executive Branch has wrongfully claimed absolute authority and the need to answer to no one. It should also be hailed for establishing the need for humane treatment of those who would fight against us, a premise to which we long subscribed until Dubya began ignoring our domestic and international obligations in this matter. I am most encouraged to see re-establishment of three co-equal branches of government. The Court saw fit to hit the administration hard in this respect by stating clearly that it must ask Congress for authority to act in ways contrary to current law.
It will be very interesting to see how this plays out. The findings have far-reaching implications for many of Bush’s extralegal and extrajudicial activities. The SCOTUS appears to be reigning in his despotic charge while also loudly telling Congress it must oversee such activities and be involved insomuch as the president has no ability to assume powers not specifically granted by congressional action.
Perhaps, poppets, we are seeing the turning point for our country, a judicial command to the president to get his house in order and to get back in line with the rule of law. Bush can ignore this, you know, as he has done with a great many laws passed by Congress, but it would be increasingly difficult to do so now that the other branch of our constitutional architecture has made clear it will hold him responsible for his actions. Let’s see where this goes.