The Executive Branch of the United States -- represented by the administration of George W. Bush -- has made its case, since September 12, 2001, about the nature of executive priviledge and power. The Supreme Court of the United States made the judicial case yesterday in its ruling in Rumsfeld vs. Hamdan. If the balance of power envisioned by the Founding Fathers two centuries ago emerges in this political -- and eminently consequential -- moment, it will be because the Congress of the United States emerges from its legislative corner to debate, at a minimum, the due rights of detainees.
But this moment -- a moment when the Judicial Branch of our government has significantly slowed the momentum of the Executive Branch -- may ultimately be about the relevance of the Legislative Branch. Paralysed by politics, both the House and the Senate have barely flickered with life since the U.S. invasion of Iraq in 2003. If yesterday's judicial ruling is to have any spark, it will be because the Congress wakes up to its responsibilities.
So, what does the Court's ruling provide -- besides an overdue brake on a controlling Executive Branch? Here are a few good guides:
READ: The Rumsfeld vs. Hamdan writ itself is a long, lonely read. Believe me; I tried. There is some compelling writing in this document (download the lovelier PDF version for reading on long bus rides), but nothing beats the footnoted ass-whipping Justice Stevens gives Justice Thomas in his footnotes. (The benefit of the PDF version is that you can read the footnotes as you peruse the opinions; dorky, yes. But much easier to see Stevens' punches land.)
READ: Glenn Greenwald, a lawyer and weblogger, took a well-written first stab at the ruling hours after it was announced. Greenwald notes that one of the most significant aspects of this ruling is that the Supreme Court upheld Article 3 of the Geneva Conventions. The Court also put the ball into Congress' court -- or created conditions for the administration to seek redress from Congress -- by emphasizing that matters of war involve both the Executive and Legislative branches.
Greenwald has a couple of posts today that are worth reading.
READ: One post speculates on the reaction of one of the key architects of the Bush administration's political power grab, David Addington:
As I read through the opinion in Hamdan v. Rumsfeld today, I
couldn't help but picture David Addington sitting in his office, steam
pouring out of his ears as he scanned through Justice Stevens' 73 page
opus, looking for some evidence that his theories of executive power
were taken seriously by the Court. I can only imagine his reaction when
he got to page 29 and realized that the Court had dismissed his entire
theory in a single, one sentence-long footnote:
Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.
But
if Addington was vexed by the majority opinion, he probably had an
aneurysm when he got to Justice Kennedy's concurring opinion, which
seems to have been directed specifically at the David Addingtons and
John Yoos of the world...
READ: Greenwald's other post looks at how Hamdan might impact the Bush presidency:
The real significance of yesterday's Supreme Court ruling in Hamdan
is that the Court categorically rejected, and even attacked, the Bush
administration's radical theories of unlimited executive power. While
it's obviously the case that the decision is far from a silver bullet
solution to this administration's abuses of power -- those abuses can
be genuinely ended only through political victory, not litigation -- only those attached to the joys of cynicism and defeatism can deny the importance of the Hamdan ruling as a step towards restoring the rule of law in this country.
After all, the Court yesterday did exactly what critics of the administration have long been urging someone -- anyone
-- to do: they imposed meaningful checks and limits on the President's
powers, and they resoundingly rejected the plainly un-democratic claim
that invocations of "national security" vest unchecked power in the
President. At least as a legal matter (though admittedly not as a
political one), this decision -- for reasons I explained yesterday and A.L. elaborated
on this morning -- is a stake in the heart of the authoritarian
theories of executive power under which our government has functioned
since September 11.
READ: Peter Baker and Michael Abramowitz have an outstanding analysis in this morning's Washington Post:
For five years, President Bush waged war as he saw fit. If
intelligence officers needed to eavesdrop on overseas telephone calls
without warrants, he authorized it. If the military wanted to hold
terrorism suspects without trial, he let it.
Now the Supreme
Court has struck at the core of his presidency and dismissed the notion
that the president alone can determine how to defend the country. In
rejecting Bush's military tribunals for terrorism suspects, the high
court ruled that even a wartime commander in chief must govern within
constitutional confines significantly tighter than this president has
believed appropriate.
For many in Washington, the decision echoed
not simply as a matter of law but as a rebuke of a governing philosophy
of a leader who at repeated turns has operated on the principle that it
is better to act than to ask permission. This ethos is why many
supporters find Bush an inspiring leader, and why many critics in this
country and abroad react so viscerally against him.
At a
political level, the decision carries immediate ramifications. It
provides fodder to critics who turned Guantanamo Bay into a metaphor
for an administration run amok. Now lawmakers may have to figure out
how much due process is enough for suspected terrorists, hardly the
sort of issue many would be eager to engage in during the months before
an election.
That sort of back-and-forth process is just what
Bush has usually tried to avoid as he set about to prosecute an
unconventional war against an elusive enemy after the attacks of Sept.
11, 2001. He asserted that in this new era, a president's inherent
constitutional authority was all that was needed. Lawmakers and judges
largely deferred to him, with occasional exceptions, such as the
Supreme Court two years ago when it limited the administration's
ability to detain suspects indefinitely.
"There is a strain of
legal reasoning in this administration that believes in a time of war
the other two branches have a diminished role or no role," Sen. Lindsey O. Graham
(R-S.C.), who has resisted the administration's philosophy, said in an
interview. "It's sincere, it's heartfelt, but after today, it's wrong."
Bruce
Fein, an official in the Reagan administration, said the ruling
restores balance in government. "What this decision says is, 'No, Mr.
President, you can be bound by treaties and statutes,' " he said. " 'If
you need to have these changed, you can go to Congress.' This idea of a
coronated president instead of an inaugurated president has been dealt
a sharp rebuke."
READ: The Washington Post's special section on Guantanamo Bay includes a list of all of the prisoners being held there. Hamdan doesn't mean the administration has to free any of them, but it does mean it has to provide them due process.
READ: David Ignatius' analysis in today's Washington Post:
The Supreme Court demolished a central pillar of that jury-rigged
national security edifice yesterday. In rejecting the administration's
plans to try a suspected al-Qaeda member named Salim Ahmed Hamdan
before a military tribunal, the court majority was emphatic: The
administration's arguments were "unpersuasive," "inapposite,"
"unsound." Even if Hamdan was as dangerous as the administration
claimed, Justice John Paul Stevens wrote for the majority, "the
executive nevertheless must comply with the prevailing rule of law."
Justice
Stephen Breyer, in a concurring opinion, spoke to the arrogant claims
of presidential power made under the rubric of fighting terrorism. The
court's conclusion in Hamdan, he wrote, "ultimately rests upon a single
ground: Congress has not issued the Executive a 'blank check.' "
The
Hamdan ruling should be a cause for celebration, at home and abroad,
because it demonstrates that the self-correcting mechanisms of American
democracy remain healthy. Governments, as imperfect human institutions,
make mistakes -- especially in the pressure cooker the Bush
administration faced after Sept. 11. But thanks to checks and balances
from the courts, Congress and, yes, the press, this administration's
mistakes are being reversed.
We can now see that after Sept. 11
there was a grab for unlimited executive power, led by Vice President
Cheney and his lawyer, David Addington. They intimidated or ignored
critics within the White House and created a secret system unchecked by
the other two branches of government. The best summary I've seen of
this power grab is a profile of Addington by Jane Mayer that appears in
the current issue of the New Yorker magazine. Cheney and Addington
steamrolled dissenters within the executive branch, ridiculing and
ostracizing those who dared to question their claims of an unlimited
executive. But as career intelligence officials feared at the time, the
system they were creating was inherently unstable.
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