Thursday, June 29, 2006

An historic decision in the case of "Bush vs. Checks and Balances"

In plain English, the U.S. Supreme Court essentially told President Bush today that our democratic system prevents him from doing whatever he wants. No wonder his conservative followers are furious.

The high court, in an historic ruling that affects the detainees at Guantanamo Bay, basically decreed in Hamdan v. Rumsfeld that even in a time of open-ended war, there shall be constitutional constraints on those who aspire to an imperial presidency.

Bush was slapped down for creating special military tribunals that, in the view of the judicial majority, plainly violated both U.S. law and the 1949 Geneva Conventions; he was told that the terrorist suspects must be accorded the same legal rights as all prisoners of war, as defined by those Geneva Conventions; he was informed, by the judicial majority, that he does not have a "blank check" to act as he sees fit, unfettered by constitutional checks and balances.

And, perhaps most importantly, the court -- simply by issuing this ruling -- made it clear that the judicial branch won't easily abdicate its traditional role as arbiter of the Constitution; and that it doesn't necessarily buy the argument that, when it comes to fighting terrorists, the robed brethren should simply butt out of Bush's business.

That's why legal analysts with longstanding concerns about Bush's expansive view of presidential power are all smiles today. First Amendment lawyer Glenn Greenwald said on his blog: "The decision is an important step towards re-establishing the principle that there are three co-equal branches of government and that the threat of terrorism does not justify radical departures from the principles of government on which our country was founded."

The court's decision -- in a 5-3 majority, with Chief Justice John Roberts abstaining (because he'd ruled on this case as an appeals judge) -- also dealt a big blow to the Bush doctrine of "inherent" executive powers.

The president's legal team had argued that when Congress enacted its post-9/11 authorization of military force in Afghanistan and against al Qaeda, the lawmakers had implicitly allowed Bush to set up whatever kinds of courts he wanted to handle terrorist suspects; as a result, Bush established special tribunals that did not comply with the rules of law (and the rights of the accused) required by the Uniform Code of Military Justice.

But the high court majority said no to all that. It ruled that Bush was acting outside the law, that Congress had never given him such latitude, even implicitly. Therefore, said the majority, "the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."

The court basically said that if Bush wants to set up tribunals that limit the rights of the accused, he needs to go to Congress for specific permission. Here's the money quote: "Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine -- through democratic means -- how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same."

Translation: For the sake of our democratic way of life, Bush needs to learn how to play well with others.

Bush's conservative followers are apoplectic today about this ruling, and it's easy to see why. The court's rejection of "inherent" presidential powers could hurt Bush on other issues. Case in point: His domestic surveillance program. Last winter, his legal team similarly said that Congress' post-9/11 authorization of military action was an implicit OK for their warrantless wiretaps -- notwithstanding a 1978 law that specifically required warrants.

Hence the outrage. It looks like Bush conservatives have a new target today, joining the New York Times in the docket as an enemy of America.

One conservative blogger, whose pen name is Oak Leaf, put it this way: "This morning, the United States of America signed the instrument of surrender with al Qaeda and all affiliated terror organizations. The signatories representing the United States were Anthony Kennedy, Steven Bryer, John Paul Stevens, Ruth Ginsburg and David Souter." (Anger may have prevented the accurate spelling of Stephen Breyer.)

Matthew Franck, a regular blogger at the National Review, assailed this "latest chapter of judicial tyranny over the United States." Others predictably fulminated about "unelected judges" (despite the fact that, as I said yesterday, unelected judges put their man in the White House). And still others trained their ire on Stevens, the 86-year-old Republican appointee who may or may not be winding up his tenure on the court. They certainly hope so. As one conservative at said, "I just wish he didn't feel the need to give away the country on his way out the door."

Indeed, now that Stevens has given the country away, what happens now? Plenty, in all likelihood. Don't think that this is the final word on Bush's conception of wartime power. It's not inconceivable that the White House and the Republican Congress will come up with new legislation designed to specifically legalize those tribunals, skirt the Geneva rules, or even strip the judiciary of any right to rule on these cases. Then the Democratic politicians would be challenged to say (in the GOP's framing) whether they side with America or with the rights of terrorists.

And, as for Stevens, he could indeed retire one of these days. If Roberts had not recused himself in Hamdan, the ruling would have been 5-4. This means that, if Stevens leaves, Bush could tip the court with one new judge who embraces his concept of an unfettered wartime president. Bush's detractors might be wise to keep the champagne on ice.