All the usual suspects are in full throat, declaring that the Supreme Court – only recently declared to be in the president’s pocket – has now delivered the often predicted, much deserved, feverishly anticipated presidential rebuke:
“The executive is bound to comply with the Rule of Law that prevails in this jurisdiction,” Justice John Paul Stevens, writing for the 5-to-3 majority, said at the end of a 73-page opinion that in sober tones shredded each of the administration’s arguments, including the assertion that Congress had stripped the court of jurisdiction to decide the case. A principal but by no means the only flaw the court found in the commissions was that the president had established them without Congressional authorization.
The decision was such a sweeping and categorical defeat for the Bush administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantanamo detainees almost speechless with surprise and delight, using words like “fantastic,” “amazing,” “remarkable.” Michael Ratner, president of the Center for Constitutional Rights, a public interest law firm in New York that represents hundreds of detainees, said, “It doesn’t get any better.”
Well, maybe. I guess if you’ve been going the distance hoping that here! Or maybe, HERE! would be the final presidential come-uppance, a slice of the loaf will have to do, the half loaf being pattently unattainable, and the whole thing an ephemeral but optimistic flash back to the 60′s era of acid, Viet Nam and free love.
But what it seems to me that the Supremes have done is to remind the executive that, nice try, “E” for effort, you rascals, but there doesn’t actually seem to be any room inside the Uniform Code of Military Justice for the kind of tribunals that you’ve been recommending. Best to go and get another co-equal branch of government on board and jigger something up, what do you say? And in the meantime, Mr. Hamdan? Don’t plan on going anywhere.
At least for the duration of hostilities (pdf).
Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm.
A majority in Congress seems ready and willing to act to set all things to right. If they’re not careful, this momentarily sweet victory will turn to ashes on the tongue if the Times’ allies in Congress decide to strike poses in favor of those who body-guarded bin Laden while he dreamt his little dreams of jet liners, and the WTC.
Two Republican senators, Lindsey Graham of South Carolina and Jon Kyl of Arizona, said in a joint statement that they were “disappointed” but that “we believe the problems cited by the court can and should be fixed.” They added, “Working together, Congress and the administration can draft a fair, suitable, and constitutionally permissible tribunal statute.”
Fair enough. Sit tight, Mr. Hamdan. We’ll get back around to you.
All in good time.
And you other guys? The ones who appear to think that the Moussaoui farce is the height of jurisprudence?
Don’t over-play your hand. You might be surprised how many people disagree with your foundational assumptions on good and evil.