Sidney Blumenthal: The imperial presidency crushed

The Supreme Court ruling in the case of Hamdan v. Donald
Rumsfeld, Secretary of Defense, et al., on June 29 did far more than
settle the limited question of whether alleged terrorist detainees can
be tried before secret military tribunals. By declaring Bush's position
unconstitutional, the court in effect judged his concept of his
presidency and his methods in his"global war on terror" illegitimate.
In his majority opinion, Justice John Paul Stevens' strategic
capitalization emphasized the larger point:"The Executive," he wrote,
"is bound to comply with the Rule of Law."

Inside the Bush administration, senior legal authorities refer to their
novel framing of the law as the"war paradigm." Its origins can be
traced to Vice President Dick Cheney's experience with the thwarting of
Richard Nixon's imperial presidency and Cheney's subsequent decades-long
effort to re-create it on a new basis. The attacks of Sept. 11 provided
the casus belli for the concentration of power in an executive
unfettered by checks and balances. Legal doctrines developed by
neoconservative theorists, who happened to be appointed to key posts in
the Justice Department's Office of Legal Counsel, were applied.
Instantly, the war paradigm became operational. Cheney and his
then-legal counsel and current chief of staff David Addington, directed
John Yoo, deputy assistant director in the OLC, to write the key memos
detailing the new imperial presidency.

The first principle is that
president as commander in chief can set or obey laws as he wishes. From
that flowed Bush's dismissal of the Geneva Conventions, denigrated as
"quaint" by then-White House legal counsel Alberto Gonzales, now U.S.
attorney general. On Feb. 2, 2002, Bush signed a directive unilaterally
withdrawing enforcement of the Geneva Conventions, specifically Common
Article 3, which prohibits torture. He has also evaded the Foreign
Intelligence Surveillance Court, ordering the National Security Agency
to engage in warrantless eavesdropping on Americans; invested his vice
president with presidential powers over classified intelligence; and
imprisoned thousands of alleged terrorists without due process of law.

The political dimension of the war paradigm is inextricably linked to
its legal one. It has the advantage of serving a polarizing politics.
"Either you are with us or you are with the terrorists," Bush said
repeatedly after 9/11. Against the war paradigm Bush's warriors propped
up a straw man they call the"law-enforcement paradigm." The efficacy of
law enforcement or the ineffectiveness of waging"war" is beside the
point. Those for"war" are true patriots and strong, but those for"law
enforcement" are weak and wimpy."One is sort of a crime-solving
approach, a law-enforcement approach, and the other is a national
strategy, military, intelligence, wartime approach," Cheney said.
But even more than Cheney, Karl Rove, Bush's chief political advisor,
has been the public advocate of the war paradigm as political wedge
issue. Speaking before the Conservative Party of New York state last
year, Rove said, ''Perhaps the most important difference between
conservatives and liberals can be found in the area of national
security. Conservatives saw the savagery of 9/11 and the attacks and
prepared for war; liberals saw the savagery of the 9/11 attacks and
wanted to prepare indictments and offer therapy and understanding for
our attackers." In the demonized politics and legal netherworld of the
war paradigm, the rule of law is for sissies.

And yet Hamdan's case moved through the courts. Salim Ahmed Hamdan,
believed to be a driver and bodyguard of Osama bin Laden, was captured
in Afghanistan in 2001 and jailed at the Guantánamo prison camp. The
Bush administration held him for a year without charges and then
declared he would be tried at some unspecified time before a secret
military commission on unspecified crimes of" conspiracy." In this
kangaroo court, Hamdan was not entitled to be present, or to see or
learn any accusations or evidence against him. Hearsay would be
admissible, though he'd never know what it might be. So Hamdan filed a
suit challenging the legality of the tribunal and claiming he had rights
under military and international law.

Now the Supreme Court's decision has thrown Bush's war paradigm into
profound crisis. As the Republicans nervously approach midterm
elections, Bush, through Rove, is prompting the Republican Congress to
uphold his discredited position in order to continue demonizing
Democrats. But transforming the issue into another Manichaean battle of
"us" versus"the terrorists" will not make his position any more
constitutional."We conclude," reads the court's opinion,"that the military commission
convened to try Hamdan lacks power to proceed because its structure and
procedures violate both the UCMJ [Uniform Code of Military Justice] and
the Geneva Conventions."

The ruling is sweeping in its rejection of Bush's claims; it leaves none
of the precepts of his war paradigm standing. In its wake his imperial
presidency, at least before the majesty of the law, is a ruin.
Bush's insistence that the congressional Authorization for the Use of
Military Force is the basis of his authority as commander in chief to
assume bottomless extraordinary powers is dismissed. In the Hamdan case,
his use of the congressional authorization to justify military
commissions is discarded. But Bush has also cited the authorization for
many of his dubious actions, from holding detainees without due process
to domestic spying. The court's opinion is that the authorization cannot
serve to"expand or alter the authorization" that Congress initially
intended. The president's war powers, the court reminds him, does not
contravene the Congress' war powers.

Nor does the president's fiat override the Uniform Code of Military
Justice or the Geneva Conventions. In the case of the UCMJ, according to
the court, the president cannot suppress due process. In the case of the
Geneva Conventions, he cannot withdraw from an international treaty of
which the United States is a signatory. Justice Stevens, writing for the
majority, said,"The UCMJ conditions the President's use of military
commissions on compliance not only with the American common law of war,
but also with the rest of the UCMJ itself, insofar as applicable, and
with the 'rules and precepts of the law of nations.'"

Bush's designation of Hamdan and other detainees as"enemy combatants,"
a vague category of stateless persons not granted the international
protections of prisoners of war, is tossed out. Stevens cites Common
Article 3 of the Geneva Conventions, but without elaborating its
substance. That article, in fact, forbids torture --" cruel treatment
and torture [and] outrages upon personal dignity, in particular
humiliating and degrading treatment." Here, therefore, the court rejects
Bush's torture policy. (And, as we shall see, Anthony Kennedy raises
Common Article 3 with possibly explosive consequences.)

Whether Hamdan is associated with a power that signed or didn't sign the
Geneva Conventions is irrelevant, despite Bush's argument that the issue
is central."Common Article 3, then, is applicable here" and, Stevens
goes on, citing the court's collective opinion,"requires that Hamdan be
tried by a 'regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.'"

Stevens' conclusion does not show any sympathy for Hamdan, or suggest
that he has been unjustly imprisoned, or that he should be released.
Contrary to Rove's earlier insinuations, he does not offer"therapy" or
"understanding." Stevens, however, does wear his heart on his sleeve on
"law enforcement.""We have assumed, as we must, that the allegations
made in the Government's charge against Hamdan are true," he writes."We
have assumed, moreover, the truth of the message implicit in that charge
-- viz., that 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. But in undertaking to try
Hamdan and subject him to criminal punishment, the Executive is bound to
comply with the Rule of Law that prevails in this jurisdiction."

Justices Stephen Breyer and Anthony Kennedy added to the impact of
Stevens' opinion with important concurrences. Breyer underlined the
point that the congressional authorization cannot be used by Bush to
rationalize whatever action he chooses."The Court's conclusion," he
writes,"ultimately rests upon a single ground: Congress has not issued
the Executive a 'blank check.'" Breyer's citation of the phrase"blank
check" is his way of evoking the justice who has just retired, Sandra
Day O'Connor, and her opinion in Hamdi v. Rumsfeld, a case in 2004 that
foreshadowed the Hamdan decision. The court ruled in that case that a
U.S. citizen, held as an"enemy combatant" in Guantánamo, could not be
detained indefinitely without the right to challenge his imprisonment
and the right to counsel. O'Connor wrote,"A state of war is not a blank
check for the President."

When O'Connor was on the court, she was considered to be the key swing
vote. Now that pivotal spot belongs to Anthony Kennedy. His opinion is
worthy of intense interest, however, for more than that reason. Kennedy
ventures into territory where others have not. His disdain for Bush's
position is palpable. He cites Justice Robert Jackson's famous opinion
in the 1952 Youngstown case:"When the President takes measures
incompatible with the expressed or implied will of Congress, his power
is at its lowest ebb." But Kennedy quotes Jackson not simply to expose
the depth to which Bush has sunk. He is building toward another
conclusion -- those who violate the Geneva Conventions can be prosecuted
for war crimes.

The Geneva Conventions, after all, constitute an international treaty,
enacted by the Congress."By Act of Congress, moreover," Kennedy writes,
"violations of Common Article 3 are considered 'war crimes,' punishable
as federal offenses, when committed by or against United States
nationals and military personnel. See 18 U.S.C. §2441. There should be
no doubt, then, that Common Article 3 is part of the law of war as that
term is used in §821."

Kennedy moves on to discuss why Bush's military commissions do not meet
the"general standards" of" civilized peoples." He has left dangling the
open question of war crimes. But the opinion of a justice of the Supreme
Court speaking in the majority is not merely a theory. Of all the
justices, Kennedy, the swing moderate, has raised the most potentially
volatile issue.

But Bush, Cheney, Rumsfeld, et al., need not worry that they will soon
find themselves in the dock. There is little chance that the Justice
Department under Gonzales will ever pursue Kennedy's logic, let alone
develop a convoluted argument for why it shouldn't apply.
Indeed, Gonzales expressed dismay at the Supreme Court's decision. On
cue and on message, he said,"What this decision has done is, it's
hampered our ability to move forward with a tool which we had hoped
would be available to the president of the United States in dealing with
terrorists." Nonetheless, he said that the administration would work
with the Republican Congress"to look at legislation" and he was
"hopeful that we will have the ability to try people through military
commissions."

Within hours of the Supreme Court ruling, House Majority Leader John
Boehner of Ohio circulated a memo, obviously already prepared, among
Republican members that provided them with talking points: The court had
given"special privileges to terrorists" and the Democrats were weak on
terrorism."There is a clear choice between Capitol Hill Democrats who
celebrate offering special privileges to violent terrorists, and
Republicans who want the president to have the necessary tools to
prosecute and achieve victory in the global war on terror," the memo
stated.

Though the Hamdan decision devastates the legitimacy of Bush's war
paradigm, his instinct is to rally around it. Those legal minds in the
administration behind the memos from which sprang the far-flung system
of prisons holding droves of detainees without due process in Iraq and
elsewhere -- possibly numbering in the tens of thousands, according to
Lawrence Wilkerson, a chief of staff to former Secretary of State Colin
Powell -- have proposed no gesture of transition. That is despite the
immense damage done to American prestige. Instead, Rove has been given
license to gin up reaction to the court decision as another opportunity
for activating the Republican base.

Senior leadership in the military has long opposed Bush's war-paradigm
policies. From the start the Judges Advocate General vehemently resisted
the abrogation of legal standards. Then Powell, the former chairman of
the Joint Chiefs of Staff, spoke for much of the military in his
opposition. But they were ignored. Last year, the general counsel of the
Navy, Alberto Mora, and Matthew Waxman, deputy assistant secretary of
defense for detainee policy, strongly argued for adherence to Common
Article 3. But Cheney, Rumsfeld and Addington suppressed them.
For the national-security career professionals, Kennedy's opinion may
provide a useful retort. CIA personnel, assigned control of secret
detainee prisons, or"black sites," may wonder if there might ever be
circumstances in which they could be subject to war-crimes prosecution.
In the unseen bureaucratic politics post-Hamdan, Kennedy's opinion may
give them a handhold of resistance.

For Rove, Bush's political spearhead, everything is short-term. Nothing
matters but the midterm elections. A new issue that can be twisted to
polarize and stir up Republicans is welcomed as a godsend. Through
Rove's machinations and a one-party Republican Congress, Bush is
attempting to create political immunity from constitutional wreckage.
But the decision stands in history. Hamdan is a bookend on the imperial
presidency; the decision in United States v. Nixon is the other. In his
presentation to the Supreme Court, Nixon's attorney, James St. Clair,
argued,"The President wants me to argue that he is as powerful a
monarch as Louis XIV, only four years at a time, and is not subject to
the processes of any court in the land except the court of impeachment."
On July 24, 1974, Chief Justice Warren Burger, speaking for the court,
ruled that there was nothing in the Constitution to"sustain an
absolute, unqualified Presidential privilege of immunity from judicial
process under all circumstances." Nixon was forced to give up his
incriminating White House tapes, and he resigned on Aug. 9. In Nixon's
fall began Cheney's dream.

There are many monuments to presidents in Washington, but there is no
Nixon memorial, only the Vietnam War Memorial. If there is ever a Bush
Monument, it may be a cage surrounded by barbed wire, above which is
engraved in marble the lasting judgment of Justice Stevens:"THE
EXECUTIVE IS BOUND TO COMPLY WITH THE RULE OF LAW."