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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, June 30, 2006

Will Hamdan have any effect on the Bush Presidency?

The real significance of yesterday's Supreme Court ruling in Hamdan is that the Court categorically rejected, and even attacked, the Bush administration's radical theories of unlimited executive power. While it's obviously the case that the decision is far from a silver bullet solution to this administration's abuses of power -- those abuses can be genuinely ended only through political victory, not litigation -- only those attached to the joys of cynicism and defeatism can deny the importance of the Hamdan ruling as a step towards restoring the rule of law in this country.

After all, the Court yesterday did exactly what critics of the administration have long been urging someone -- anyone -- to do: they imposed meaningful checks and limits on the President's powers, and they resoundingly rejected the plainly un-democratic claim that invocations of "national security" vest unchecked power in the President. At least as a legal matter (though admittedly not as a political one), this decision -- for reasons I explained yesterday and A.L. elaborated on this morning -- is a stake in the heart of the authoritarian theories of executive power under which our government has functioned since September 11. Peter Baker and Michael Abramowitz explain why in their superb analysis in The Washington Post:

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. . . . .

Even the administration's supporters recognize the significance of this decision in legally slaying the monarchical views of this administration:

"There is a strain of legal reasoning in this administration that believes in a time of war the other two branches have a diminished role or no role," Sen. Lindsey O. Graham (R-S.C.), who has resisted the administration's philosophy, said in an interview. "It's sincere, it's heartfelt, but after today, it's wrong."

As Bruce Fein put it: "This idea of a coronated president instead of an inaugurated president has been dealt a sharp rebuke."

Despite this undeniable defeat of the Bush administration's claims to unlimited power, there is much cynicism regarding the significance of the decision, typically based on the premise that this administration is so lawless and acts with such disregard for limitations on its power that no Supreme Court decision is going to make any difference. That view was expressed yesterday by, among others, Digby, who labelled my praise of yesterday's decision "optimistic" and "pretty"and said:

But from a political standpoint, I'm with Atrios about the practical effect of this ruling:

My quick take is that it's certainly an important symbolic victory, but this administration's contempt for the law, the constitution, and the balance/separation of powers that our system rests on isn't going to be very affected by what 5 people in black robes say. . . .

This decision will ultimately feed into conservative boogeyman number 438: judicial activism. Look for Justice Sunday IV: Vengeance is Mine Sayeth Delay. And expect many more calls to spike John Paul Stevens' pudding with arsenic. This is the beauty of the conservo-machine. When your primary political tools are both intimidation and victimization, you can spin anything to your advantage.

I understand the sentiment and agree with the factual premises. Yesterday's decision is but a step towards re-affirming the core principles of our constitutional system and is by no means an ultimate victory in any sense. George Bush is still the President. Congress is still controlled entirely by his corrupt political loyalists. Democrats are likely to be as meek and muddled as they have been, particularly on national security issues (the probability that they will oppose Congressional authorization of military tribunals is roughly zero). The media will still be lazy and maddeningly deferential to the administration, thereby enabling the administration's followers to get away with all sorts of distortions and smears, etc. etc. etc. All of that is true enough.

And even beyond that, I think there is a very real question as to whether the Bush administration even considers itself bound by Supreme Court decisions which it perceives to encroach on the constitutional powers of the President. This is an unpleasant question which hasn't been examined, but it may need to be now. After all, the administration's theory is that the Constitution vests unlimited power in the President to make decisions to defend the country, and nobody -- neither Congress nor the courts -- has any power to interfere with those decisions. Those decisions are, as the Yoo Memorandum put it, "for the President alone to make."

Indeed, in several of the President's signing statements, the administration seems to have pointedly emphasized the limitations on the Court's power to interfere with the President's decision-making when it comes to defending the nation. Here, for instance, is what the President said in his signing statement regarding the McCain anti-torture amendment:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Thus, if the President decrees that compliance with a Supreme Court ruling would impair his ability to defend the nation, is it certain -- or even likely -- that the administration would comply with the ruling? It seems far more likely that the administration would simply assert that the Court has no authority to interfere with the President's constitutional obligation to defend the country, and that any ruling which does that lacks validity and therefore can be ignored. When asked about the Court's ruling yesterday, the President's answer seemed to suggest (albeit ambiguously) exactly that view:

At any rate, we will seriously look at the findings, obviously. And one thing I'm not going to do, though, is I'm not going to jeopardize the safety of the American people. People have got to understand that.

Isn't the President saying here that no matter what the Court says, he is "not going to . . . jeopardize the safety of the American people"? Thus, if compliance with the Supreme Court's ruling would -- in the President's view -- impair his ability to defend the nation, isn't it quite likely that the President would simply refuse to comply with the ruling on the ground that the Court has no authority to impair his functions as Commander-in-Chief? And if he asserted that power, is there any doubt that his followers would trip over themselves with praise, wallowing in bravado fantasies of Andrew Jackson's heroic challenge to the Court's authority?

Although the administration and Senate Republicans paid lip service yesterday to their intended compliance with the Court's ruling, they did so by making clear that they were willing to comply because doing so was easy and would not interfere in any way with the military commissions they want to conduct. In other words, their willingness to comply with the Court's order is contingent on the Order's not really interfering with what they want to do. On balance, it seems far more likely than not that if the Court's ruling genuinely impairs or limits what the President wants to do in the national security area, he will assert the power to ignore the Court's rulings (just as he has asserted the power to ignore the laws enacted by Congress) because -- as the Yoo Memorandum asserts -- such decisions "are for the President alone to make." And his supporters in Congress and elsewhere would unquestionably cheer on such defiance.

Nonetheless, the Supreme Court yesterday did everything it could possibly do and everything one hoped it would do. One of our three branches of Government stood up -- finally -- to the Bush administration's claims of unchecked power and ruled that its conduct was illegal. Astonishingly, it even arguably laid the foundation for finding that the President has engaged in war crimes by systematically violating the mandates of the Geneva Conventions. And it resoundingly rejected as the unconstitutional atrocities that they are the President's theories of executive power.

Additionally, court opinions historically have a political impact as well as legal effects. Despite the concerted, destructive attacks on the credibility of the Supreme Court by the likes of Mark Levin and Rush Limbaugh, who hate and wage war on any institution (such as the media) which dares to challenge the Powers of the President, Americans still retain a respect for the Supreme Court as an important and credible institution. The Court's proclamation that the President has been acting beyond his legal and constitutional authority strengthens that argument as a political matter.

It is also likely to further galvanize those in Congress and the media who have been gradually taking a stand against the Administration. A Supreme Court ruling that is this decisive, on an issue this significant, is virtually never confined to the legal realm, but almost always has impact, often profound impact, in the political realm as well.

An immediate and complete solution to the problem of Bush lawlessness does not exist, at least in any realistic sense. Restoring our country's constitutional framework is going to be a slow, difficult, and incremental process. Victories have been rare and hard to come by, but yesterday's decision is unquestionably a victory -- and it is a significant (albeit partial) victory. The fact that it doesn't achieve every goal or solve every political problem is no reason to disparage its significance. Doing so breeds a destructive cynicism that, in turn, breeds resignation and defeatism. In that regard, the excessively cynical claim that "nothing matters because they will just do what they want and ignore every law" -- a claim I hear every day here -- is not much different than the claim that "none of this matters because they control voting machines and will always win."

At least for one day, yesterday, our system of government worked the way it is supposed to work. Our core principles of government, which have been under relentless assault for several years, were re-affirmed by the nation's highest court. The President suffered a clear and resounding defeat in the exercise of his national security powers. And one of the three branches of government demanded that its constitutional role be recognized and respected and rebuked the President for failing to do so.

The impact of all of that is not merely, as Digby put it, that "some of the legal questions about presidential wartime powers seem to have been answered." Far beyond that, the Bush administration's excesses of power were dragged into the open, declared illegal, and were powerfully condemned by the highest court in our country. If one doesn't celebrate yesterday's victory, it is difficult to imagine what would be considered a success.

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