Bush Defeat In The Supreme Court?

The Supreme Court ruled 5 to 3 that the tribunals for Guantanamo detainees are illegal. However, if you read the court's decision, more than the Constitution was violated. The Court also stated that the "commissions" violate the Uniform Code of Military Justice (UCMJ) - illegal under military tribunals; the Geneva Conventions; the Hague Conventions; and exceeds any intent of legislation of Congress. In other words they are illegal no matter how you look at them - criminally, militarily, internationally, or Constitutionally.

The decision is being read as a stinging rebuke of Bush for over-reaching the powers of President. It is largely being seen as a big loss for the Administration, and on the face of it that would seem to be true. However, in listening to various Congressional members respond to the decision, a more frightening specter raises its head. Most of the Representatives and Senators I heard (both Democrats and Republicans) focused on Bush leaving Congress out of the process. The message was essentially: "Work with us and we'll give you what you want."

The majority decision, and statements by the Court, make it clear that there are numerous problems with the "trials" and access to justice of the current policy. Certainly one of those was the by-passing of Congress, and over-interpretation of the power the President holds under a variety of legislation. However, it would seem to me that even if Congress writes legislation that makes the "commissions" legal legislatively, it would not remove the other areas of illegality (UCMJ, Geneva and Hague).

The seeming willingness of Congress to rubber stamp the "commissions" is not a good sign, and actually poses a significant threat. It shows a willingness on the part of Congress to support a policy that violates numerous international agreements to which the U.S. has been a long standing signatory. The Geneva and Hague Conventions are at heart protections for human rights in times of war. The willingness to write legislation counter to them adds to the international perception of the United States as a rogue nation.

A further issue with the Congressional response, is that legislation that would approve the current Bush detainee policy would institutionalize such treatment far into the future. Given that the President can detain anyone at Guantanamo who he deems a threat (regardless of nationality), then certainly U.S. citizens face a massive violation of Constitutional protections if so detained. Once something is included in the Constitution, it is much more difficult to remove. While a simple majority vote can take legislation to the President, two-thirds are required to remove it. It is rare indeed that two-thirds of the House and Senate agree on anything.

While the decision of the Court does send a significant message to the President, it does not necessarily provide a check on the unilateral assumption of presidential powers. It certainly does not if this expansion of authority becomes legislatively enshrined.