Checking the Decider
It seemed almost too much to hope for, but the Supreme Court finally called George W. Bush onto the carpet yesterday and asked him the obvious question: What part of "rule of law" do you not understand?
The justices rejected the kangaroo-court tribunals the administration had planned for the detainees who have been held for years without charges at Guantanamo Bay -- proceedings engineered to have the appearance of due process but not the substance. The ruling is a complicated, nuanced set of concurrences and dissents that will take some time to fully digest, but the fundamental message is clear: Despite his outrageous claims of virtually unlimited presidential power, the self-proclaimed Decider doesn't get to decide everything.
"Congress has not issued the Executive a 'blank check,' " Justice Stephen Breyer wrote in his opinion. Has anyone broken the news to poor Dick Cheney?
The ruling has no immediate impact for the 450 or so Guantanamo detainees who remain in limbo, with no formal charges and no legitimate way to contest their imprisonment. The administration will probably stall, taking its sweet time to come up with a new legal process that complies with the court's requirements. Eventually, though, the inmates will have to be given a day in court or released. I hope this happens before more of them hang themselves.
Ironically, the decision comes in the case of a man whom our government seems to have good reason to detain, as opposed to some others who probably were sold to the U.S. military in Afghanistan by warlords who collected a bounty for each prisoner they delivered. Salim Ahmed Hamdan, the plaintiff in Hamdan v. Rumsfeld , is a Yemeni who is alleged to have been Osama bin Laden's bodyguard and driver. I, for one, would love to know who rode with bin Laden, where the al-Qaeda leader went, what conversations Hamdan might have overheard. I'd be reluctant to let someone that close to bin Laden slip out of my grasp.
But if I wanted to keep Hamdan in custody indefinitely, I'd have to give my reasons in some kind of authentic legal proceeding. The Supreme Court tried to make that clear in 2004 when it rejected the Decider's claims that in wartime he could basically hold whomever he wanted for as long as he wanted, without having to deal with complications such as due process and legal representation.
The administration's response was to design military tribunals in which the detainees would not be able to adequately defend themselves. Yesterday the court ruled 5 to 3 that show trials are the same as no trials. Predictably, the majority opinion was written by 86-year-old Justice John Paul Stevens, who has become the court's conscience. Predictably, the swing vote was Justice Anthony M. Kennedy, who has assumed the old Sandra Day O'Connor role. And, predictably, the court's hard-right faction -- Antonin Scalia, Clarence Thomas and the newest member of the club, Samuel A. Alito Jr. -- voted to let the Decider do whatever the hell he wants. Chief Justice John G. Roberts Jr. had to recuse himself, since he had already ruled on the case (in favor of the president) when he was on a lower court. Remarkably, even if he had been able to vote, the rule of law would have been upheld.
Perhaps the greatest impact of the 185-page ruling is that it rejects Bush's claim that the necessity of waging the "global war on terror" gives him extraordinary powers that lie beyond the jurisdiction of the courts. The ruling reminds him of "the court's duty, in both peace and war, to preserve the constitutional safeguards of civil liberty."
When Bush gets time to "fully review" the ruling -- yesterday he was occupied with the Japanese prime minister and had only a "drive-by briefing" on the decision -- the above sentence would be a good place to start. He has been told that he is still a president, not an emperor.
The court also made an important statement about America's duty to international law. The majority opinion finds that the military tribunals, as structured by the administration, violate both the Uniform Code of Military Justice "and the four Geneva Conventions signed in 1949." In other words, the Decider was wrong when he decided the Geneva Conventions didn't have to be taken into account for suspected al-Qaeda detainees. He was wrong when he asserted that the United States did not have to respect international agreements it has sworn to obey.
Does that also apply to torture? To "extraordinary rendition''? To secret CIA prisons?
Seems almost too much to hope for.