The Constitution Still Matters

The Constitution Still Matters

June 30, 2006

In a 5-3 decision (PDF), the Supreme Court ruled yesterday in Hamdan v. Rumsfeld that the special military tribunals created by the Bush administration to try suspected terrorists are illegal. Specifically, the court found that the tribunals "were not authorized by any act of Congress and that their structure and procedures violate the Uniform Code of Military Justice (UCMJ) and the four Geneva Conventions signed in 1949. The ruling — "a definitional moment in the ever-shifting balance of power among the branches of government" — will have other complex and far-reaching implications. Bottom line, it is a great victory the American people, for checks and balances and our Constitution.

• The Supreme Court struck down Bush’s interpretation of the 9/11 force authorization. The Supreme Court ruling in Hamdi v. Rumsfeld, issued two years ago Wednesday, famously noted that "a state of war is not a blank check for the President." The Hamdan ruling backs up that statement. The Bush administration argued that Congress had authorized the special Guantanamo tribunals when it approved the Authorization for Use of Military Force (AUMF) in the days after September 11, but the Court disagreed. Justice John Paul Stevens wrote, “there is nothing in the text or legislative history of the AUMF even hinting (PDF) that Congress intended to expand or alter" the laws already governing the treatment of military detainees.
  
  
• The Court upheld the notion that the Geneva Conventions apply to all military detainees. In a Jan. 25, 2002, memo to the president, then-White House Counsel Alberto Gonzales infamously argued that the "new paradigm" post-9/11 rendered parts of the Conventions "quaint" and "obsolete." The Court also rebuked this position yesterday, ruling that Common Article 3 of the Geneva Conventions applies to all detainees captured in military conflicts, including members of al Qaeda and other terrorist networks, and not merely soldiers fighting for states which are signatories to the Conventions, as the administration argued. Article 3 requires that detainees be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
  
  
• The Court ruling effectively rebuked the idea of unchecked executive authority. President Bush and Vice President Cheney have aggressively pursued the expansion of executive authority since taking office. (The decision to create special military commissions for terror suspects actually "represented one of the first steps" by Cheney to increase executive authority after 9/11.) The legal rationale for this forceful drive was undercut yesterday. Justice Kennedy noted in his concurring opinion (PDF) that judicial insistence upon consultation between Congress and the executive "does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine — through democratic means — how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.”