Thursday, June 29, 2006

Court upholds the rule of law over executive authority

In the latest version of the Hamdan case testing the treatment of prisoners at Guantanamo Bay, the Supreme Court ruled in favor of the rights of civilian courts to review military tribunals, and found the tribunals as currently constituted to be unconstitutional (PDF).

SCOTUSblog explains:
The Court's conclusion, Breyer said, "ultimately rests upon a single ground: Congress has not issued the Executive a 'blank check.'...Indeed, Congress has denied the President the legislative auhority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary."
And it's difficult not to view that, along with what SCOTUSblog describes as "a mini-lecture on the virtue of presidential consultation with Congress, at least 'where, as here, no emergency prevents' such consultation" in the context not only of indefinite detentions without access to courts, but to warrantless wiretapping in contravention of Congressionally authorized means.

That issue is not yet before the Supreme Court, but the existence of a 5 member majority backing limits on the President's wartime authority against a three member minority willing to grant a blank check bodes ill for such extra-legal programs (Chief Justice Roberts recused from this case because he heard the appeal as a member of the DC Circuit Court).

In particular, the administration had claimed that the AUMF for Afghanistan expanded the President's powers as expressed in the Uniform Code of Military Justice. They make similar claims about the President's power to tap phones, but the Court today held "there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alterthe authorization set forth in UCMJ Art. 21." Neither is there any such explicit statement about FISA or other wiretapping statutes.

Justice Kennedy chose not to join the majority in concluding that the Geneva Conventions also apply, and that the conspiracy charges against Hamdan are invalid (because conspiracy isn't a violation of the rules of war, which a military commission might be empowered to try). He did so without joining the dissenters who argue that the Geneva Convention does not apply and that the conspiracy charges are valid. Kennedy simply concluded that the commissions are illegal, and that the other matters could be evaluated down the line as need be.

It feels nice to live in a nation of laws again.