When the Supreme Court issued its opinion in Hamdan v. Rumsfeld, striking down the Bush Administration’s military tribunals, former Solicitor General Walter Dellinger III pronounced it “simply the most important decision on presidential power and the rule of law ever. Ever.”
Dellinger might be overstating his case, but perhaps only by a hair. Hamdan may indeed set forth watershed limits on presidential power. But Bush Administration allies are already engaged in unsavory salivating over the prospect of a Justice’s retirement–and the possibility that Hamdan will not survive changes in the Court’s composition.
The Justice Department has no such patience. Indeed, it seems there is no silk purse that government lawyers cannot make into a sow’s ear: Within days of the Hamdan ruling, the Administration rejected the Supreme Court’s core rulings while appearing to endorse the decision’s force. Regrettably, much reporting on the decision has failed to note these subtle evasions.
Hamdan had two immediate consequences. First, the Court held that Common Article 3, a terse provision in all four Geneva Conventions, benefits all those captured in global counterterrorism operations. Common Article 3 is the ethical baseline for wartime treatment of captured men and women: No torture. No humiliating and degrading treatment. No kangaroo courts that lack “all the judicial guarantees which are recognized as indispensable by civilized people.” The Court’s holding was necessary because back in February 2002, President Bush had issued a presidential memorandum stating that “none of the provisions of Geneva apply to our conflict with al Qaeda.” Pressing home the point, he underscored that “Common Article 3 of Geneva does not apply” either.
Facing clear Supreme Court disapproval, the Administration seemed to back down. On July 7, Deputy Defense Secretary Gordon England issued a memo to senior military officials stating that “Common Article 3…applies as a matter of law to the conflict with Al Qaeda.”
Second, and of more lasting relevance, the Court implicitly rejected the Administration’s suggestion that the President can ignore what Congress has to say about how the nation conducts its wars. From its decision in August 2002 to evade federal criminal laws against torture to the all-encompassing surveillance of Americans’ telephone and e-mail communications revealed in 2005, the Administration’s national security policies have been underwritten by the notion that the President, and the President alone, decides how to combat terrorism. In Hamdan, the Supreme Court seemed to set its face against this assertion of power to make new laws, enforce those laws and adjudicate their legality or constitutionality. Only the dissent accepted such sweeping presidential war powers.
But this week, it became clear that the Administration sees the Supreme Court’s rebuke as simply a fresh opportunity to reassert its vision of unchecked presidential power.