July 11, 2006


The Gitmo Fallout: The fight over the Hamdan ruling heats up—as fears about its reach escalate. (Michael Isikoff and Stuart Taylor Jr., 17 July 2006)

David Bowker vividly remembers the first time he heard the phrase. A lawyer in the State Department, Bowker was part of a Bush administration "working group" assembled in the panicked aftermath of the September 11 attacks. Its task: figuring out what rights captured foreign fighters and terror suspects were entitled to while in U.S. custody. White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptable answer. One day, Bowker recalls, a colleague explained the goal: to "find the legal equivalent of outer space"—a "lawless" universe. As Bowker understood it, the idea was to create a system where detainees would have no legal rights and U.S courts would have no power to intervene...
In January 2002, Bowker and other State Department lawyers pushed back. After seeing a Justice Department memo arguing that Qaeda and Taliban prisoners did not even deserve basic protections under the Geneva Conventions, they warned that the administration was inviting an enormous backlash, both from U.S. courts and foreign allies...
But the complaints went unheeded. The hard-liners forcefully argued that in wartime, the president had virtually unlimited powers to defend the nation. They may come to wish they'd listened a little more closely to the warnings. In a ruling late last month, the Supreme Court came down squarely on the side of the dissenters...

That last bit really gives the game away. Who doesn't believe the President has unlimited powers to defend the nation in wartime? Who actually thinks SCOTUS came down squarely on anything in Hamdan? Who thinks we'll tolerate our people being tried internationally for what they've done in this war? In a way, it's reassuring that this is the worst State can come up with. Oh well, I guess Bush'll just have to get a rubber stamp from Congress.

Posted by Pepys at July 11, 2006 4:40 PM

Shouldn't they go chronologicaly and do Bill Clinton for Yugoslavia first?

Posted by: David Cohen at July 11, 2006 5:36 PM

The odd thing is even as Congress begins the process to certify the president's authority to keep the Gitmo detainees out of the U.S. court system, folks in the media and on the left side of Democratis party are still doing a victory lap like they're the Italian team after the World Cup shootout on Sunday.

Posted by: John at July 12, 2006 12:16 AM

Did not the majority opinion in Hamden say that the provisions of the Geneva Convention must be followed? Did not the President say he would abide by the Hamden decision? That doesn't seem to match the assertion "that the President has unlimited powers to defend..". The Geneva Convention provisions are a limit.

Posted by: h-man at July 12, 2006 7:37 AM

H: Treaties result from negotiations by the President and then the consent of the Senate. Obviously, they can not trump the Constitution or the Amendment process would be scrapped in favor of amendment-by-treaty. (What if the President and the Senate entered into a UN treaty that forbade cigarette advertising, or the public ownership of firearms?)

When it comes to General Article III, the Supreme Court is wrong -- but who's going to tell them. This precedent is probably one justice away from being overturned, because it is so obviously wrong. Nonetheless, if it applied it would only apply because of the exercise by the President of his Treaty power, and only so long as he doesn't revoke our agreement to the treaty.

Posted by: David Cohen at July 12, 2006 10:21 AM

"Who doesn't believe the President has unlimited powers to defend the nation in wartime? "

Patriots. And the literate.

Posted by: Arthur Friend at July 12, 2006 5:00 PM
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