More Thoughts On The Hamdan Decision

Just some followup on this week's monumental Supreme Court decision.

President Bush insists he will do a congressional endrun around the decision, getting the legislative branch to make his planned military tribunals legal. Many feel that this could result in a political showdown over the status of the Guantanamo Bay prison. One Republican Senator, John Warner, expressed doubts that a legislative solution for the President could be found, warning "We've got to get it right." Democratic Senator Carl Levin added "Their whole unilateral approach made it more difficult for everybody here, and we're going to have to pick up these pieces. It would have been a lot easier if they had not ignored the Congress and not behaved as if they are the law unto themselves." On that note- the White House putting itself above the law- this ruling was very significant for some, as it weakens the President's argument that the war on terror gives him extra powers, including those used to justify his warrantless spying program.

Some are also looking at the question of whether President Bush has committed war crimes.

The President's defenders, of course, continue to have shockingly little faith in America's system of justice and our ability to overcome great threats with our national dignity intact. They have decried the ruling as a loss for the U.S. in the battle against terrorism and declared it a victory for terrorists and liberals. Darn those Republican-appointed activist Supreme Court judges! No doubt many conservatives will be following Stephen Colbert's call to abolish this gutless branch of government.

The Republican party- ever their minds on maintaining their crumbling hold on Congress- has decided to turn this into a political battle by "serving notice to Democrats that they must back President Bush on how to try suspects at Guantanamo Bay or risk being branded as weak on terrorism." The same article notes, of course, that 71% in a new poll oppose the administration's Guantanamo legal policies. This move only reinforces to me that the Karl Rove/GOP attack machine is a one-trick pony and their act is getting harder to sell.

Their argument is also as weak as it is predictable; this decision is not a victory for terrorists and does not afford them any 'special' rights, as some Republicans are claiming. Any changes to our system (special or otherwise) were made by President Bush himself in a systematic overreach; this is simply our constitutional system self-correcting itself. The ruling has reaffirmed the rule of law in America and that the war on terror does not warrant radical changes in the way our government operates.

President Lincoln suspending habeus corpus in the Civil War and FDR interning innocent Japanese-Americans were both unconstitutional and a stain on our history; they did not help us win those wars and were shameful acts of otherwise excellent Presidents (something which can't be said of W's disastrous reign) who made poor decisions in a time of crisis. Most of us recognize this now (and also recognize that this current, and loosely-defined, war does not compare with those two epic struggles) and have only been trying to keep history from repeating itself. As I stated in my update to yesterday's entry, this decision does not prevent the President from prosecuting or trying suspected terrorists. What it says is that he must do so in accordance with the law and not simply the rules which he makes up at will... Or, as Lt. Cmdr. Charles Swift, Hamdan's attorney, said to Chris Matthews this week, "[T]o prejudge anyone that we capture outside the country as a thug, why are we having a trial in the first place? We've already decided they were guilty. What the Supreme Court said is you have the trial first, you use the procedures that are set up under international law, and then you decide whether they're a thug. You don't make the thug determination going in."

If the President has been doing everything on the up-and-up, then this should not be a problem for him at all. Of course, the numerous questions surrounding Guantanamo (how many prisoners there are actually terrorists at all, what interrogation methods were used to coerce information, where they were taken from, denial of legal counsel, etc) put him in an awkward position.

President Bush got in that position by himself; the Supreme Court and Democrats are not to blame.

As Glenn Greenwald said in his analysis of the decision, "the Bush administration's excesses of power were dragged into the open, declared illegal, and were powerfully condemned by the highest court in our country. If one doesn't celebrate yesterday's victory, it is difficult to imagine what would be considered a success."

Slate magazine's podcast had a good rountable discussion on this yesterday as well. A lot of good points made on all sides. It's the one entitled "Slate: The Gabfest on Gitmo". One reporter expressed his concerns about labeling all who are in the prison as 'terrorists'. He states, "My sense is that the terrorists, they're keeping in places we don't even know about. That these are the lackeys... but not the true villains who are elsewhere". A suspicion that's likely well-founded.

But once again, I find it's Andrew Sullivan with the best take on the decision. In an entry titled "The De-Throning of King George", he lays out what was really at stake in this case and what the decision means for our country getting back on the right track. I reprint in full-

Absorbing the Hamdan decision today prompts the following thoughts. This is not an unprecedented moment in America's constitutional history. In war-time, presidents have over-reached before, and they will over-reach again. The over-reach is often for good reasons; and after 9/11, it's understandable that some corners were cut. What this decision represents is therefore the re-balancing of the constitutional order, after the heat of the moment. Think of it as the moment when King George's crown was yanked off his head. The Congress has tried a couple of times, but been foiled by "signing statements." So the judiciary has stepped in. Other presidents have tried mini-coronations. What we are seeing is the end of the latest monarchical pretension.

This time, however, the relief is greater for a few reasons. The first is that this war has no clearly defined enemy and no clearly defined end-point. So the presidential over-reach was particularly grave because it threatened a permanent expansion of law-free executive power (which is another word for an elected tyranny). As Orwell understood, a permanent war is integral to the maintenance of tyranny; and in our current predicament, vigilance is warranted perhaps more than in any previous, more discretely formulated conflict.

There is also clear evidence that much of what this president attempted was not simply a good-faith attempt to protect American civilians. It was a deliberate attempt to expand executive authority, promoted by radical theorists of state power, and fomented by a cabal of dead-enders, bent on avenging Nixon. The intent of Rumsfeld, Cheney, Addington, Cambone, Yoo, and the other advocates of an untrammeled executive was the acquisition of unaccountable power. In wartime, such dangerous characters are even more of a threat, because they can use the cover of security to seize new prerogatives. By far the most disturbing aspect of those prerogatives was the power to torture. The ever-lasting stain on this president will be his abandonment of centuries of Anglo-Saxon prohibition of this evil. Eventually, when we discover the full extent of his torture program, we will be able to assess the profound damage he has done to his own country and the civilization which it defends.

Lastly, this is not over. The court decision was relatively close. If Roberts had not already endorsed a quasi-monarchy in a perpetual war, he would have voted with the dissenters. The Republican party, which has become an enemy, rather than a friend, of domestic liberty, cannot wait to place another proponent for an executive-on-steroids on the Supreme Court. When the next attack comes, the possibility exists for another, graver suspension of constitutional liberty. If Bush-style Republicans keep winning the presidency, there is no knowing what permanent suspensions of basic liberties we may confront. There is a balance here, of course. Some loss of liberty is inevitable in a conflict such as the war on terror. Many of those shackled in Gitmo are dangerous, ruthless and barbaric. But many, many are not; and were not detained "on the battlefield" as the president keeps saying. They were picked up often far from battlefields, incarcerated on the flimsiest of evidence, tortured, abused and sent into a black hole of lawless arbitrary power. That is what we are fighting. It is not what we should become. We have been granted a chance to maintain that distinction. But if we do not keep that constantly in our minds, we may lose it. And in losing that distinction, lose ourselves.

What he said.