Undoing the Imperial Presidency

It is fairly clear from the New York Times lead article on the United States Supreme Court decision in Hamdan v. Rumsfeld that the Court has restored the Constitutional balance of powers. It is also clear, from the Deseret News article on the same decision by the Supreme Court, that there are many more turns of the screw before we have settled law in this matter. The Deseret News, of Salt Lake City, Utah, expresses points of view congenial to its readers, in the reddest of red states. The NY Times expresses views congenial to the bluest of blue cities, with twice the population of Utah.

Because the LDS Church (Mormons) revere the United States Constitution as second only to scripture, the Deseret News article is measured and respectful. What it does is outline the steps that are likely to come that will reconcile the Bush administration position with the Court’s decision.

Read together, as an accident of Google home page and frequent updates of “Google News, the two articles provide a more comprehensive perspective on the issues and consequences of this decision. No detainees will be moved from Guanta/namo; no tribunals will be held, and further judicial processes will be delayed until new law is written and passed that will enable the Executive branch to hold “commissions” (read tribunals) that will pass muster with the Supreme Court.

I think the outstanding part of Justice John Paul Stevens’s decision is the point that any legal process against detainees needs to comply with the Uniform Code of Military Justice and the Geneva Conventions (Convention on Prisoners of War, Article 3). What is outstanding, and one hopes it would be a binding precedent, is the specification of international law fixed by treaty to which the United States is signatory. Further, the Geneva Convention in the above link defines what we learned to call “enemy combatants,” that is, people we have detained though

they were not in uniform or holding a gun or firing at us, as applies to POWs. There is no sanction, in the Convention, for torture or inhuman or degrading treatment, or murder, or the passing of sentences or the carrying out of executions, for these ill-defined people captured at the scene of conflict, but not regular soldiers of an opposing army. The NYTimes article of June 30 also calls this “perhaps [the] most significant” element of Stevens’s decision.

<>The Washington Post has a number of resources collected on the Hamdan v. Rumsfeld decision here. There are two exceptional discussions relevant to this Supreme Court decision; one, by Walter Shapiro, is on Salon.com and offers further discussion of the implications of the decision. The second outstanding piece on the Hamdan case is in the New York Times Magazine of January 6, 2006, and provides some sense of who Hamdan is, and what he, a Yemenite, was doing in Afghanistan. Also, the article covers the legal background to the case.

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