The Court Hands Congress an Opportunity

By David S. Broder
Thursday, July 6, 2006

Justice John Paul Stevens, author of the majority opinion in last week's historic decision on Guantanamo Bay detainee trials, was appointed to the Supreme Court in 1975 by President Gerald R. Ford. Had there been no Supreme Court decision ordering Richard M. Nixon to turn over the White House tapes that led to his own resignation, Ford would never have been in a position to appoint Stevens -- or anyone else -- to judicial office.

It was that first Supreme Court decision requiring Nixon to surrender the incriminating evidence of his complicity in the Watergate coverup that set the tone -- if not the precedent -- for the 5 to 3 decision Stevens wrote last week telling the president he could not try Osama bin Laden's former driver before a commission of military officers because Congress had passed no law authorizing such commissions or regulating such trials.

Once again the chief executive had to be reminded that he is not above the law. No more than the security threats Nixon invented to justify his rogue police state operations will the war on terrorism relieve the president of the burden imposed by the Constitution to "faithfully execute the laws." He can't just make them up to suit his convenience.

For anyone who was worried that the United States was in danger of losing its precious freedoms as it mobilized to combat the threat of Islamic terrorism, the Stevens opinion was the best possible Independence Day gift. The Supreme Court that helped install President Bush in the presidency when it cut off the recounting of Florida votes sent him a clear message that he must operate in ways that Congress and the Constitution permit.

I am delighted that Republican congressional leaders say they hope to turn the ruling to their advantage by engaging the Democrats in a lively debate about the president's counterterrorism strategy. That debate is long overdue. In the first reaction to the Sept. 11 attacks, Congress gave Bush broadly worded authority to protect the country and strike back at the terrorists. After that it paid little attention for the next four years to the way that authority was being used -- and how the administration assumed additional powers.

As Jane Mayer has detailed in the July 3 issue of the New Yorker, Vice President Cheney and his then-counsel, David Addington, saw the lax supervision from the Republican Congress as an invitation to reassert more and more power for the executive branch. One result has been the most widespread monitoring of phone calls and other communications, as well as travel and financial transactions, in our history. Other byproducts have been the lengthy detentions of suspects at Guantanamo Bay and other overseas locations, without formal charges or recourse to lawyers, and interrogation tactics bordering on torture.

It was only in the past year -- when the first anti-terrorism statute, the Patriot Act, came up for renewal and when newspapers disclosed some of the steps the administration had secretly taken -- that Congress began to raise questions about what was going on.

Now the court has plainly said to Congress and the administration, "You have to bring these proceedings under the law. We're not telling you what the law should be, but you have to have some rules that are written into statutes -- and conform to the standards the Constitution sets."

As Stevens put it, Salim Ahmed Hamdan, the Guantanamo detainee, may be "a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians . . . but in undertaking to try Hamdan and subject him to criminal prosecution, the executive is bound to comply with the rule of law that prevails in this jurisdiction."

There is no reason for Democrats in Congress to fear the coming debate. They need not feel embarrassed about affirming that Stevens's decision is correct and finding ways to legislate the needed rules for handling these detainees. Far from being defensive, Democrats could challenge the Republican majority to take the opportunity to examine all that Bush is doing -- or not doing -- to counter al-Qaeda and other threats to national security.

Congress is coming late to this task, but it is not too late to make our laws and our practices conform to the Constitution. And to remind this president that the law applies to him, too.

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