A Supreme Challenge to Bush's Authority

By Onnesha Roychoudhuri, AlterNet. Posted June 30, 2006.

"The game is up."

That's how Michael Ratner, president of the Center for Constitutional Rights (CCR), summed up the implications of Thursday's Supreme Court ruling in the case of Guantanamo detainee Salim Hamdan.

"The Supreme Court has firmly rejected President Bush's attempt to sidestep American courts," Ratner said in a press conference this morning. "Now the president must act: Try our clients in lawful U.S. courts or release them."

Up to this point, litigation surrounding Guantanamo detainees has been heavily manipulated by the Bush administration, which has sought to find legal loopholes in order to continue to hold hundreds of detained civilians in the "war on terror."

In Hamdan v. Rumsfeld, the court issued an unmistakably clear rebuke to the president's assertion that he has the authority to violate the Geneva Conventions and the Uniform Code of Military Justice (UCMJ) in the establishment of the Guantanamo tribunals. But today's Supreme Court ruling has implications that stretch far beyond the case of Hamdan -- beyond, even, Guantanamo detainees. Indeed, the Supreme Court ruling marks what may well be the beginning of the end to an unchecked executive power.

You can only exercise executive powers within the law, not above it

The language used in the Supreme Court decision clearly states that President Bush cannot violate already existing laws in exercising executive power: "… 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."

While the Bush administration asserts that existing laws are neither adequate for protecting the country nor for trying terrorism suspects, the court states, "It is not evident why the danger posed by international terrorism, considerable though it is, should require, in the case of Hamdan's trial, any variance from the courts-martial rules."

The court affirmed that the Geneva Conventions do apply to everyone in the "war on terror." This goes beyond Guantanamo detainees and includes anyone detained, even in so-called "black sites" run by the CIA. The reaffirmation that the Geneva Conventions are applicable in these "brave new times" sets a critical precedent. As CCR's legal director Barbara Olshansky notes, this means that these established rules of law and protections will be available to everyone, everywhere around the world, regardless of the nature of an armed conflict we may be in.

Notably, the court contradicted the D.C. Circuit Court's earlier opinion that the Conventions do not apply to Hamdan because he was captured during a war with al Qaida, which is not a signatory of the Conventions. The court made quick work of this opinion:

The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties [ i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum," certain provisions protecting "[p]ersons … placed hors de combat by … detention," including a prohibition on "the passing of sentences … without previous judgment … by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples."

Yes, torture is illegal

The explicit mention of the applicability of Common Article 3 goes beyond establishing the right to certain judicial guarantees. It makes quick work of "enhanced interrogation techniques." As Marty Lederman of SCOTUSblog writes,

Common Article 3 provides that detained persons 'shall in all circumstances be treated humanely,' and that '[t]o this end,' certain specified acts 'are and shall remain prohibited at any time and in any place whatsoever' -- including 'cruel treatment and torture' and 'outrages upon personal dignity, in particular humiliating and degrading treatment.'

That means no water-boarding, no prisoner pyramids, no sensory deprivation, nor any other linguistic twist on what is otherwise known as torture and abuse.

In an attempt to prevent Guantanamo detainees from exercising the right to contest their detainment, President Bush signed into law the Detainee Treatment Act of 2005. The administration argued that the act applied retroactively -- wiping out already pending cases. The Supreme Court's decision clearly states that this is not the case.

Authorization to Use Military Force (AUMF) does not authorize military tribunals

Congress' passing of AUMF immediately following the 9/11 terrorist attacks has been claimed by members of the Bush administration as the main justification for extra-legal tactics in the war on terrorism. On Thursday the Supreme Court sent a clear message to the administration that this twisting of Congress' intent is more than disingenuous -- it is illegal:

Neither the AUMF nor the DTA (Detainee Treatment Act) can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President's war powers … and that those powers include authority to convene military commissions in appropriate circumstances … there is nothing in the AUMF's text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ (Uniform Code of Military Justice) …Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the Constitution and laws, including the law of war …

Again, the Supreme Court is issuing a clear limit on President Bush's claims to executive power by explicitly stating that the power can only be exercised within existing laws. The limited scope of AUMF dictated by the Supreme Court is a critical precedent. If the Supreme Court does not think the military tribunals are justified by AUMF, it is highly unlikely that NSA wiretaps will pass legal muster.

Reestablishing American values

The Court's language in the decision is heartening -- asserting its right to exercise the rule of law, citing, "The public importance of the questions raised, the Court's duty, in both peace and war, to preserve the constitutional safeguards of civil liberty, and the public interest in a decision on those questions without delay."

There is no doubt that this is a huge victory for the legal values America was founded on. The language throughout the ruling provides a precedent for future cases challenging President Bush's claims to extra-legal executive power.

But the immediate implications for Guantanamo detainees are more uncertain. While Michael Ratner stated that he believes it likely that Guantanamo will be closed within a year, the critical question is where these detainees will be put. Both Ratner and Olshansky cite an instance in which detainees were released to Yemen, but are now being held indefinitely upon the explicit request of the Bush administration. That means that detainees will likely be shuffled to other countries where they will be held without appropriate legal rights.

It is clearly within the interests of the Bush administration to close Guantanamo as it has become a monumental embarrassment and source of public scrutiny. It is critical to note, however, that other bases (Kandahar, Bagram, Jalalabad, Asadabad) and "black sites" where detainees are held subjected to the same, and worse abuses, will remain in existence. The closure of Guantanamo will not be the vindication of law and human rights, and it would behoove the press to pay close attention to the bait and switch tactics the administration is bound to use in coming days.

President Bush has already stated that he intends to seek congressional approval to continue to try detainees in military tribunals. In an impossible assertion, Bush told the press Thursday that he will "protect the [American] people and at the same time conform with the findings of the Supreme Court."

While today's ruling does not put an end to the president's illegal tactics in the war on terror, it does reveal such assertions to be patently contradictory.

              

Onnesha Roychoudhuri is a former assistant editor at AlterNet.

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