The Court, the People, and the President
Just this much of Justice Stephen Breyer’s concurring opinion in Hamdan vs. Rumsfeld serves to reassert and restore the Constitution of the United States to its rightful place as the embodiment of the idea that a just society rests on the rule of law, not the rule of men.
By a majority of 5-3 (Chief Justice John Roberts recused himself as he had been a member of a three-judge U.S. Circuit Court panel that had ruled on the case in July 2005), the Supreme Court effectively ruled that the president cannot decree the existence of a state of war – especially a perpetual state of war as George Bush did in 2001 – and on this basis claim the authority to indefinitely suspend or restrict freedoms guaranteed under the Constitution.
Legal analysts and constitutional lawyers agree that the ruling does not restrict the president from acting in the event of detecting an imminent threat of an armed attack on the U.S. or in the immediate aftermath of an attack. What the majority of the Court would not countenance is the idea that the president could declare perpetual war and, on this basis, govern not as a co-equal branch but as the preponderant branch with few, if any, checks and balances on his actions. According to the Court, “consultation does not weaken our Nation’s ability to deal with danger… [it] strengthens the Nation’s ability to determine – through democratic means – how best to do so.”
The Court’s decision leaves open the option for Bush to propose and for Congress to approve a procedural regimen similar to the courts-martial procedures specified in the Uniform Code of Military Justice governing investigations and trials of uniformed military personnel. In no small measure, this option was rejected in 2001 because the U.S. government – usually embodied by Central Intelligence Agency field operatives – had minimum information and accompanying evidence about the “enemy combatants” incarcerated in Guantanamo Bay. In some cases, “evidence” was one person’s accusation against the denials of the prisoner, with apparently little attempt to discern the truth.
The Court’s decision also serves to highlight the inappropriateness of the administration’s long-term response to the challenge of terror. The United States is the only western country that has assumed a war footing in response to terror attacks on the “homeland” or to investigate potential threats. The attacks on rail lines and buses in Spain and Britain were treated as violations of law and responded to by law enforcement and intelligence agencies, not by deploying military forces to transportation hubs or creating a new “homeland military command.” Surveillance of individuals and groups suspected of planning acts of terror – and their apprehension – were police operations in Germany, Britain, and Canada.
In a phrase, the Court reminded the president that he might be commander-in-chief of the armed forces, but he is not commander-in-chief of the nation.
What awaits a future challenge is the administration’s claim that the president can hold indefinitely without trial those accused of committing acts of terror. Also left open is whether men who were seized on the field of battle in Afghanistan or in Iraq in the course of opposing U.S. or Afghan or Iraqi armed forces could claim full protection as prisoners-of-war under the Geneva Conventions . (The Court did affirm the relevance of Common Article 3 of the Conventions that guarantees trials conducted in accordance with universally recognized, “indispensable” judicial protections.)
Also to be deciphered yet is the extent to which the Court’s ruling serves to rein in the administration’s use of administrative rulings to circumvent Congress, the legal status of presidential “signing statements” to signal when and to what extent the executive intends to ignore provisions of laws passed by Congress, and the concepts of “inherent” presidential powers and the “unitary” presidency.
In the 18th century, colonists objected to George III’s “right” as commander-in-chief of Britain’s armed forces, to impose (via acts of parliament or royal decree) on the colonies a “war” tax, require the colonies to garrison and supply British troops, and participate in military forays that, at the time, seemed like continuous warfare.
When it was over, 2,500,000 people in 13 British colonies in North America had gained independence from an imperial monarchy.
With yesterday’s decision by the Supreme Court, nearly 300,000,000 people in the United States regained their independence from an imperil presidency.
Now it is up to the people not to lose it again.