The majority opinion, which stopped Bush from
proceeding with a kangaroo court that stripped Guantanamo Bay detainees
of basic legal protections and mocked the Geneva Conventions, carried a
profound secondary message – that the Court was not prepared to endorse
Bush’s vision of his “war powers” as limitless and beyond challenge.
But it was equally noteworthy that only five of the
nine justices believed that the rule of law and constitutional limits on
Bush’s powers should prevail. Four justices – Antonin Scalia, Clarence
Thomas, Samuel Alito and John Roberts – have made clear that they are
prepared to rubber-stamp any judgment that Bush makes.
In dissenting opinions on the tribunal case, Scalia,
Thomas and Alito embraced legal arguments that bowed before Bush’s
imperial presidency. Chief Justice Roberts would surely have joined
them, except that he had already ruled in Bush’s favor in the case while
sitting on the U.S. Appeals Court and thus was forced to recuse himself.
The one-vote fragility of the Supreme Court’s
embrace of constitutional principles over one-man rule was further
underscored by the fact that the landmark ruling was written by Justice
John Paul Stevens, a decorated World War II veteran who is now 86.
Another justice, Ruth Bader Ginsburg, is known to have battled health
It is a strong possibility that if the Republicans
retain control of the U.S. Congress in the November 2006 elections, Bush
will get to fill at least one more Supreme Court vacancy with the likes
of Scalia, Thomas, Alito and Roberts. Then, the court’s majority will
flip in the opposite direction, granting Bush the authoritarian powers
he so covets.
Even now, the court balance is being maintained by
the swing vote of Republican Anthony Kennedy, the author of the infamous
Bush v. Gore decision in December 2000 that prevented a full counting of
votes in Florida and
But, at least in the near term, the Court’s ruling
means that Bush will be forced to negotiate with Congress over creating
new standards for the tribunals that will try some of the 450 detainees
now held by the United States at Guantanamo Bay, Cuba.
In that ruling on June 29, the Supreme Court
majority rejected Bush’s long-held contention that the Geneva
Conventions do not apply to detainees in the “war on terror.” The
justices also repudiated Bush’s tribunal rules that allowed a defendant
to be excluded from his own trial and permitted hearsay evidence,
unsworn testimony and evidence secured through coercive means.
“The Executive is bound to comply with the rule of
law that prevails in this jurisdiction,” Stevens wrote in the majority
“The Court’s conclusion ultimately rests upon a
single ground,” added Justice Stephen Breyer. “Congress has not issued
the Executive a blank check.”
Implicitly the Court’s slim majority was saying,
too, that the Constitution does not countenance the notion that the
President as Commander in Chief can assert “plenary” – or unlimited –
powers indefinitely, any way he sees fit.
Since the 9/11 terror attacks, Bush has maintained
that he possesses virtually all the legal power of the U.S. government;
that he can decide which laws will be enforced and which ones ignored;
that he can take the nation to war without congressional consent; that
he can order torture and assassination; and that he gets to parcel out
constitutional protections to Americans, overriding such guarantees as
the habeas corpus right to a fair trial and the Fourth Amendment
ban on unreasonable searches and seizures.
By asserting that the “war on terror” exists
everywhere, Bush has claimed powers that know no bounds and no
boundaries, reaching from the farthest corners of the earth to the
corner of Main Street and Elm.
In effect, Bush has negated the fundamental
American concept of “unalienable rights,” heralded by the Declaration of
Independence and enshrined in the U.S. Constitution and the Bill of
Today, under Bush’s legal theories, Americans have
rights only at his forbearance. Bush’s vision of his unlimited powers
also would obliterate the constitutional “checks and balances” by
subordinating the Legislature and Judiciary to the Executive.
Bush implemented these radical changes to the
American political system by combining what his legal advisers call the
“plenary” powers of the Commander in Chief with the concept of a “unitary
executive” in control of all laws and regulations.
One of the legal theorists who developed these
concepts of an all-powerful Executive was Samuel Alito, who became
Bush’s second appointee to the Supreme Court, after Chief Justice
Rights As ‘History’
Yet, maybe because Bush’s assertion of power has
been so extraordinary, almost no one has dared connect the dots. After a
230-year run, the “unalienable rights” – as enunciated by Thomas
Jefferson, James Madison and the other Founders – were history.
The Justice Department spelled out Bush’s rationale
for his powers on Jan. 19, 2006, in a 42-page legal analysis defending
Bush’s right to wiretap Americans without a warrant.
Bush’s lawyers said the congressional authorization
to use force against the perpetrators of the Sept. 11, 2001, terrorist
attacks “places the President at the zenith of his powers” and lets him
use that authority domestically as well as overseas. [NYT, Jan. 20,
According to the analysis, the “zenith of his
powers” allows Bush to override both the requirements of the Fourth
Amendment, which protects against searches and seizures without court
orders, and the 1978 Foreign Intelligence Surveillance Act, which
created a special secret court to approve spying warrants inside the
In its legal analysis, the Justice Department
added, “The President has made clear that he will exercise all authority
available to him, consistent with the Constitution, to protect the
people of the United States.”
While the phrase “consistent with the Constitution”
sounded reassuring to many Americans, what it meant in this case was
that Bush believes he has unlimited powers as Commander in Chief to do
whatever he deems necessary in the “war on terror.”
Yet, since the “war on terror” is a vague concept –
unlike other wars fought by the United States – there also is no
expectation that Bush’s usurpation of traditional American freedoms is
just a short-term necessity. Instead it is a framework for future
It was this historic and unprecedented assertion of
presidential power that was the real backdrop for the Supreme Court’s
ruling in the case of Guantanamo detainee Salim Ahmed Hamdan, who was
accused of conspiracy because of his alleged work as a driver for al-Qaeda
leader Osama bin Laden.
In demanding reasonable legal safeguards for Hamdan
and other Guantanamo detainees, the Supreme Court majority also was
declaring that Bush’s powers are not without limit. The Court was
asserting that other human beings who share the planet with Bush have
Election 2006, however, may well decide whether the
future of the United States will be as a nation of laws with citizens
who continue to possess “unalienable rights” – or whether Bush becomes a
modern-day king and all other Americans become his subjects.