A Governing Philosophy Rebuffed
Ruling Emphasizes Constitutional Boundaries
Friday, June 30, 2006; Page A01
For five years, President Bush waged war as he saw fit. If intelligence officers needed to eavesdrop on overseas telephone calls without warrants, he authorized it. If the military wanted to hold terrorism suspects without trial, he let it.
Now the Supreme Court has struck at the core of his presidency and dismissed the notion that the president alone can determine how to defend the country. In rejecting Bush's military tribunals for terrorism suspects, the high court ruled that even a wartime commander in chief must govern within constitutional confines significantly tighter than this president has believed appropriate.
For many in Washington, the decision echoed not simply as a matter of law but as a rebuke of a governing philosophy of a leader who at repeated turns has operated on the principle that it is better to act than to ask permission. This ethos is why many supporters find Bush an inspiring leader, and why many critics in this country and abroad react so viscerally against him.
Bush came to office intent on expanding executive power even before Sept. 11, 2001, encouraged in particular by Vice President Cheney, who has long been convinced that presidential authority was improperly diminished after Watergate.
The decision to create military commissions to try terrorism suspects, instead of using civilian courts or courts-martial, represented one of the first steps by the administration after the al-Qaeda attacks on New York and Washington to create a new legal architecture for handling terrorism cases.
As described by the New Yorker this week, the executive order establishing military commissions was issued without consultations with then-Secretary of State Colin L. Powell or then-national security adviser Condoleezza Rice after a concerted push by Cheney's legal adviser, David S. Addington, now his chief of staff.
"Rather than push so many extreme arguments about the president's commander-in-chief powers, the Bush administration would have been better served to work something out with Congress sooner rather than later -- I mean 2002, rather than 2006," said A. John Radsan, a former CIA lawyer who now teaches at William Mitchell College of Law.
The administration relied on the same expansive view of its power in detaining U.S. citizens indefinitely as enemy combatants, denying prisoners access to lawyers or courts, rejecting the applicability of the Geneva Conventions in some instances, employing harsh interrogation techniques and establishing secret CIA prisons for terrorism suspects in foreign countries. Only its telephone and e-mail surveillance program, which is operated by the National Security Agency, stirred much protest in Congress.
The administration often fended off criticism by arguing that the commander in chief should not be second-guessed. "The Bush administration has been very successful in defining the debate as one of patriotism or cowardice," said Andrew Rudalevige, author of "The New Imperial Presidency" and a Dickinson College professor. "And this is not about that. This is about whether in fighting the war we're true to our constitutional values."
In some ways, the ruling replicates a pattern in American history where presidents have acted aggressively in wartime, only to be reined in by courts or Congress. Even some Bush supporters said yesterday that it may be appropriate now to revisit decisions made ad hoc in a crisis atmosphere, when a president's natural instinct is to do whatever he thinks necessary to guard the nation against attack.
"That's what presidents do, and I say thank goodness for that," said George J. Terwilliger III, deputy attorney general under President George H.W. Bush. "But once you get past that point . . . both as a matter of law and a matter of culture, a more systemic approach to the use of authority is appropriate."
The news networks are proclaiming that the Supreme Court handed the President a "strong rebuke" in the Hamdan case by declaring the proposed Gitmo trials are illegal under U.S. law and international Geneva conventions.
The decision is actually a huge political gift to President Bush, and the detainees will not be released that easily. The President and GOP leaders will propose a bill to override the decision and keep the terrorists in jail until they are securely transferred to host countries for permanent punishment....
This view of unbridled executive power is what was disemboweled by the Hamdan ruling. But will the administration adjust its behavior? Somehow, I doubt it. Look for them to continue seeking forgiveness rather than permission, and force each and every action to be challenged by lawsuits before they conform to the narrow ruling in each case....
When it comes to Hamdan, that is certainly the case for me.
Quite frankly, I’ve never been sure about the military tribunal route for terrorism suspects captured overseas. To me it either makes sense to try them as criminals in a federal court, hold them until hostilities were over (if we deem the Geneva Conventions apply), or execute them like rabid dogs (if we deem the Geneva Conventions don’t apply). The tribunal route just seemed odd to my sensibilities.
So, give non-US citizens, who are also not members of a legitimate government, the same rights as US citizens.
The case focused on Salim Ahmed Hamdan, a Yemeni who worked as a bodyguard and driver for Osama bin Laden in Afghanistan. Hamdan, 36, has spent four years in the U.S. prison in Cuba. He faces a single count of conspiring against U.S. citizens from 1996 to November 2001.
Just absurd, that terrorists are protected the same as American citizens. People who are part of the group that attacked and killed Americans multiple times, culminating in 9/11, as well as the people who sheltered and supported them. Sickening.