The Consequences of Hamdan

If only one blog post could sum up the consequences of the Hamdan decision, right? Unfortunately that's not possible, as evidenced by the wide aray of opinions I point to on various blogs in my last post on Hamdan. The reason it's so difficult is because there are so many different ways to digest the decision. Of course, there's what the opinion itself actually says. After that, there are the immediate legal and political consequences to be analyzed, such as what happens down at Gitmo now. And lastly, there are the long-term and symbolic consequences, which I think this article in today's Washington Post does a good job of discussing. Some excerpts for you:

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.

Now this is the kind of writing that gets media outlets accused of "liberal bias." But it's hard to argue with the statement the authors of the column make. Whether you agree with Hamdan or not, even a cursory reading shows us that the Supreme Court has rebuffed major planks in the governing philosophy of the Bush administration:

At a political level, the decision carries immediate ramifications...Now lawmakers may have to figure out how much due process is enough for suspected terrorists, hardly the sort of issue many would be eager to engage in during the months before an election...That sort of back-and-forth process is just what Bush has usually tried to avoid as he set about to prosecute an unconventional war against an elusive enemy after the attacks of Sept. 11, 2001.

Bruce Fein, an official in the Reagan administration, said the ruling restores balance in government. "What this decision says is, 'No, Mr. President, you can be bound by treaties and statutes,' " he said. " 'If you need to have these changed, you can go to Congress.' This idea of a coronated president instead of an inaugurated president has been dealt a sharp rebuke."

The articles gives us a highlight of Bush administration approaches in the "war on terror":

As described by the New Yorker this week, the executive order establishing military commissions was issued without consultations with then-Secretary of State Colin L. Powell or then-national security adviser Condoleezza Rice after a concerted push by Cheney's legal adviser, David S. Addington, now his chief of staff.

The administration relied on the same expansive view of its power in detaining U.S. citizens indefinitely as enemy combatants, denying prisoners access to lawyers or courts, rejecting the applicability of the Geneva Conventions in some instances, employing harsh interrogation techniques and establishing secret CIA prisons for terrorism suspects in foreign countries. Only its telephone and e-mail surveillance program, which is operated by the National Security Agency, stirred much protest in Congress.

In short, the Bush administration has relied on the President's authority as the commander-in-chief to authorize all sorts of unconventional programs and activities without so much as a nod in the direction of Congress and the courts. As the article correctly states, president's throughout our history have asserted their power in novel ways in times of crisis and war. What distinguishes the Bush administration is the lack of good faith with which they have done so. When Hamdi challenged his detention without due process in the Supreme Court and won, the Bush administration, rather than acquiesce to the court's decision, sent Hamdi back to Saudi Arabia. When Padilla sought to appeal his loss before the 4th circuit, Padilla-one time dirty bomber-was released from military detention and charged with a lesser crime in a criminal court, thus allowing the Bush administration to avoid a reversal in the Supreme Court. Presidential signing statements such as the one attached to the McCain torture amendment, reserve for the executive broad authority in the vaguest of terms, preventing anyone from analyzing or even understanding the administration's legal reasoning. Legal justification is stretched beyond reason, as in the NSA domestic surveillance case, where the administration claims the authority to spy on American citizens without a warrant based on an authorization for military force for which members of Congress have deliberately denied intending to grant such authority.

I won't go so far as to say that yesterday's decision announces a "return of the rule of law" or anything trite like that. To think that the Bush administration is suddenly going to reverse five years of decision-making on the basis of one Supreme Court decision is absurd. Rather, full legal consquences of the decision will only be unveiled as more specific acts of the administration are challenged. But the decision is a turning point, nonetheless. It signals to those in our government that the era of untrammeled and weakly justified executive authority, premised soley on the need to fight the "war on terror", is over.