Monday, July 03, 2006

High Court Fires Warning Shot at Bush: You Can't Have It Your Way All the Time

Justices Issue a Much-Needed Reality Check to President on His War Powers; Controversial NSA Warrantless Surveillance Program Now Skating on Dangerously Thin Legal Ice

By Skeeter Sanders

As Americans prepared to celebrate the 230th anniversary this week of the birth of their country, the nation's highest court sent an unmistakable message to the Bush White House: It cannot act above the law when it comes to conducting the so-called "War on Terror." Nor can it act without congressional and judicial oversight.

In a long-awaited 5-3 decision, the Supreme Court ruled that the military tribunals established by President Bush to try terror suspects detained at the U.S. military base at Guantanamo Bay, Cuba violate both the Uniform Code of Military Justice and the Geneva Conventions on the treatment of prisoners of war.

The justices also declared that the president exceeded the scope of his executive powers by creating the tribunals without any statutory authority given to him by Congress. "There is no sweeping mandate for the president to invoke military commissions whenever he deems them necessary," the court said.

And the court flatly rejected the administration's claim that the courts have no authority to review how it conducts the war on terror, declaring that congressional and judicial oversight of the administration's foreign and domestic policy is required under the Constitution's system of checks and balances between the executive, legislative and judicial branches of government.

Ruling Clearly Caught Bush Off-Guard

The justices' verdict clearly caught the president off-guard -- and it showed last Friday during a joint news conference at the White House with visiting Prime Minister Junichiro Koizumi of Japan. In remarks aimed at highlighting the remarkable 180-degree change in the U.S.-Japanese relationship since World War II, Bush made another of his now-famous malapropisms: "It was not always a given that the United States and America would have a close relationship..."

He obviously meant to say, "It was not always a given that the United States and Japan would have a close relationship." But Bush was clearly annoyed when reporters asked him for his response to the Supreme Court's ruling, which was handed down on the last day of its 2005-06 term.

"I've really not had any time to take it in," he said, declining to discuss it further by telling reporters, "I'm sorry you wasted your question."

But Bush has good reason to be rattled, for the Supreme Court decision is likely to pave the way for legal challenges to other aspects of the "War on Terror," such as the alleged abuse of prisoners at Iraq's infamous Abu Ghraib prison and the so-called "extraordinary rendition" of terror suspects in secret CIA detention centers in Europe, according to Marty Lederman, a professor of law at Georgetown University in Washington.

"The [high court's] ruling explicitly said the Geneva Conventions apply to the detainees at Guantanamo Bay -- something the administration has steadfastly denied," Lederman wrote in his Internet blog on the Supreme Court. "The military commissions are the least of it.

"This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the administration has been using -- such as waterboarding and hypothermia (and others) -- violate the [International] War Crimes [Treaty]," Lederman continued.

Some Congressional Republicans Irate With Ruling

That the Supreme Court invoked Article 3 of the Geneva Conventions in the case of Osama bin Laden's former chauffeur did not sit well with at least Two Republican senators, who said Sunday that Congress must "rein in" the Supreme Court ruling that international law applies to the Bush administration's conduct in the war on terror.

Senate Majority Whip Mitch McConnell (R-Kentucky), appearing on NBC's "Meet the Press," said the ruling "means that American servicemen potentially could be accused of war crimes. I find that very disturbing and I think Congress is going to want to deal with that."

Senator Lindsey Graham (R-South Carolina), appearing on "Fox News Sunday," branded Article 3 "far beyond our domestic law when it comes to terrorism. Congress can rein it in, and I think we should." Graham, an Air Force veteran, is a reserve judge to the Air Force Court of Criminal Appeals.

Article 3 mandates standards of treatment in cases of armed conflicts not of an international character in the territory of a contracting party, which Afghanistan is. It prohibits outrages upon personal dignity, "in particular humiliating and degrading treatment," and bars violence, including murder, mutilation and torture.

Did High Court Reverse its 1957 Reid v. Covert Decision?

One question that remains unanswered is whether the justices, by ruling that the treatment the Guantanamo detainees violates the Geneva Convention, declared at least a partial reversal of its landmark 1957 ruling, Reid v. Covert, that the U.S. Constitution supersedes international treaties ratified by the Senate. According to the Reid decision, "This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty."

The case involved the wife of a U. S. serviceman stationed in Britain, who had been convicted by a military tribunal of murdering her husband. At the time of the murder, an executive agreement was in effect between the United States and the United Kingdom which permitted U. S. military courts to exercise exclusive jurisdiction over offenses committed in Britain by American servicemen or their dependents.

The Supreme Court found that "no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution." Because the wife was a civilian, her Sixth Amendment right to trial by jury in a civilian court had been violated, the justices found.

But what about treaties ratified by the Senate whose intent are clearly consistent with the Constitution? The Geneva Conventions are one example. The United Nations' Universal Declaration of Human Rights, also ratified by the Senate -- indeed, inspired by the Constitution's Bill of Rights -- is another.

The question is important, for Article VI of the Constitution clearly says that " all treaties made, or which shall be made, under the authority of the Unites States, shall be the supreme law of the land. . ." Those senators who are now calling for the "reining in" of the high court applying international law in its rulings had better stop and think long and hard about it -- and do some serious research -- before doing anything hasty.

Controversial Warrantless NSA Spying Program Now Under a Legal Cloud

The Guantanamo decision casts serious doubts on the legality of the Bush administration's highly controversial domestic electronic surveillance program by the National Security Agency. And it came even as the White House and several Republican members of Congress excoriated The New York Times for revealing details of the administration's monitoring of international banking transactions to root out terrorists.

Bush denounced the newspaper's June 23 disclosure of the program was "disgraceful" and "did great harm" to the nation in the war on terror. Meanwhile, Peter King, a Republican congressman from New York, demanded that The Times be prosecuted under the Espionage Act of 1917 for "repeatedly revealing classified information."

Excuse me, Congressman King, but this blogger has just one question for you: How are you going to prosecute The Times for publishing details of the administration's legally and constitutionally suspect activities without violating the newspaper's rights under the First Amendment?

Cue up and play the "Mission: Impossible" theme as you think about that one, Congressman King, for you've obviously forgotten about the Nixon administration's failed attempt in 1971 to bar The Times from publishing the Pentagon Papers. The Supreme Court declared that attempt unconstitutional.

You've also obviously forgotten that at no time did the Bush administration seek the approval of the Foreign Intelligence Surveillance Court -- clearly required under both the 1978 law that created it and the Fourth Amendment of the U.S. Constitution -- before proceeding with the monitoring.

While the monitoring of financial transactions -- which are hardly private, since credit-reporting bureaus and a host of other private organizations also monitor them routinely -- is not as controversial as the NSA surveillance of millions of Americans' phone and Internet communications, it's nonetheless still being conducted without court warrants -- and, therefore, is illegal under the FISA law.

To this blogger, it's pretty clear that we're seeing an administration that's acting like a spoiled brat who got caught by his mother with his hands in the cookie jar and responds by throwing a temper tantrum. Sorry, Mr. President, but throwing a tantrum because you got caught violating the law in your pursuit of the "war or terror" is not going to work.

I've said it before and I'll say it again: The fact that America is at war does not give the president carte blanche to ignore, supersede or defy the laws of our nation -- especially our highest law, the Constitution of the United States. And I'm glad that the Supreme Court has come to the same conclusion.

Whether you like it or not, Mr. President, you and your administration will be held accountable and you're going to have to deal with it. You cannot promote freedom and democracy abroad while at the same time threaten freedom and democracy at home.

If the Founding Fathers were able to time-travel ahead 230 years after creating this nation, I can only imagine what they would think of you undermining everything that they risked their lives to create.

Shame on you, Mr. President!

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Volume I, Number 34
Copyright 2006, Skeeter Sanders. All rights reserved.

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