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US Supreme Court reaffirms the rule of law « Previous | |Next »
July 1, 2006

By 5-3 the US Supreme Court ruled in Hamdan v. Rumsfeld that the US military commissions, which the US had set up to hear the cases of those inside the US military prison at Guantanamo Bay in Cuba violated, and were illegal, under both military justice law and the Geneva Convention. Some comment here in The Guardian and here in the New York Times.


The Australian Government has steadfastly maintained its trust and faith in the ability of the tribunals to deliver justice to the prisoners, especially David Hicks - the Australian who was due to be the first suspect to face the tribunals. By implication the Howard Government has supported Guantanamo Bay and the sidestepping of the Geneva Convention. Yet evidence has mounted over the years that many of the detainees at Guantánamo were picked up randomly in Afghanistan or turned over for reward in Pakistan, and are being held as "enemy combatants" with essentially no evidence at all.

The Court expressly declared that it was not questioning the government's power to hold Salim Ahmed Hamdan "for the duration of active hostilities" to prevent harm to innocent civilians. But, it said, "in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."

This indicates that President Bush cannot act unilaterally to create a system of law from thin air. He is bound by the rule of law. As Alan Wolf over at Political Animal observes, this is a challenge to the Bush administration's view of the world. According to this view, Wolfe says:

Americans face unprecedented threats from terrorists that can only be met by granting to the president the authority to respond in any way he determines to be in the national interest. Consultation, negotiation, power-sharing – all of which are part and parcel of ordinary democratic politics – become luxuries we can no longer afford. Only resolute action can stop an attack before it occurs.

The Supreme Court ruling has given Bush Administration a fall-back position - that of going to Congress to seek its imprimatur for a continuation of the tribunal process. This passes power to Congress not to the Court.

As Jack Balkin argues this is democracy forcing, as has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way. It is possible, of course, that with a Congress controlled by the Republicans, the President might get everything he wants.

Balkin adds that nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do. What the Court has done, rather is use the democratic process as a lever to discipline and constrain the President's possible overreaching. Balkin says that what the Supreme Court has done by forcing the President to ask for authorization is:
First, it insists that both branches be on board with what the President wants to do. Second, it requires the President to ask for authority when passions have cooled somewhat, as opposed to right after 9/11, when Congress would likely have given him almost anything (except authorization for his NSA surveillance program, but let's not go there!). Third, by requiring the President to go to Congress for authorization, it gives Congress an opportunity and an excuse for oversight, something which it has heretofore been rather loathe to do on its own motion.

Hence the Supreme Court reinforces the checks and balances of democracy.

| Posted by Gary Sauer-Thompson at 11:37 AM | | Comments (2)


Finally some justice.

Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas, were the dissenters, and each wrote an opinion that the ruling would hamper the President's ability to deal with a new and deadly enemy.

We should remember that the military lawyers had continually challenged the Defense Department's civilian leaders. They insisted that the fight against terrorism was best waged under the recognized rules: the Geneva Convention and the U.S. Uniform Code of Military Justice. The administration hawks, led by Vice President Dick Cheney and his chief of staff, David S. Addington, had won almost every argument. This fight, they said, required more flexible guidelines, with fewer rights for those captured and fewer limits on their captors.

The Attorney General, Alberto Gonzales, told CNN that:

What this decision has done is, it's hampered our ability to move forward with a tool which we had hoped would be available to the president of the United States in dealing with terrorists"

That implies that the involvement of the Congress of the United States is something that ipso facto "hampers" the US's ability to deal with terrorists. A strange way of looking at the US system of government isn't it.

Thursday's Supreme Court decision means that the Pentagon faces the prospect not only of ditching the military commissions, but of rewriting large parts of the rule book it created for fighting the war on terrorism. The court's majority decision held that the war on Al Qaeda and others must be fought under international rules.

So it is up to Congress to nullify the Geneva Convention. Wil the Republicans in Congress endeavour to do so in an election year?