The imperial presidency crushed

The Supreme Court's rejection of kangaroo military tribunals shackles Bush's legacy to Nixon's -- and could even land him in the dock for war crimes.

By Sidney Blumenthal

Read more: Politics, Sidney Blumenthal, Supreme Court, Richard Nixon, Opinion, Torture

Photo by Jim Young/Reuters

George W. Bush delivers remarks to the Manhattan Institute for Policy Research in Washington June 27, 2006.

July 6, 2006 | The Supreme Court ruling in the case of Hamdan v. Donald Rumsfeld, Secretary of Defense, et al., on June 29 did far more than settle the limited question of whether alleged terrorist detainees can be tried before secret military tribunals. By declaring Bush's position unconstitutional, the court in effect judged his concept of his presidency and his methods in his "global war on terror" illegitimate. In his majority opinion, Justice John Paul Stevens' strategic capitalization emphasized the larger point: "The Executive," he wrote, "is bound to comply with the Rule of Law."

Inside the Bush administration, senior legal authorities refer to their novel framing of the law as the "war paradigm." Its origins can be traced to Vice President Dick Cheney's experience with the thwarting of Richard Nixon's imperial presidency and Cheney's subsequent decades-long effort to re-create it on a new basis. The attacks of Sept. 11 provided the casus belli for the concentration of power in an executive unfettered by checks and balances. Legal doctrines developed by neoconservative theorists, who happened to be appointed to key posts in the Justice Department's Office of Legal Counsel, were applied.

Instantly, the war paradigm became operational. Cheney and his then-legal counsel and current chief of staff David Addington, directed John Yoo, deputy assistant director in the OLC, to write the key memos detailing the new imperial presidency. The first principle is that president as commander in chief can set or obey laws as he wishes. From that flowed Bush's dismissal of the Geneva Conventions, denigrated as "quaint" by then-White House legal counsel Alberto Gonzales, now U.S. attorney general. On Feb. 2, 2002, Bush signed a directive unilaterally withdrawing enforcement of the Geneva Conventions, specifically Common Article 3, which prohibits torture. He has also evaded the Foreign Intelligence Surveillance Court, ordering the National Security Agency to engage in warrantless eavesdropping on Americans; invested his vice president with presidential powers over classified intelligence; and imprisoned thousands of alleged terrorists without due process of law.

The political dimension of the war paradigm is inextricably linked to its legal one. It has the advantage of serving a polarizing politics. "Either you are with us or you are with the terrorists," Bush said repeatedly after 9/11. Against the war paradigm Bush's warriors propped up a straw man they call the "law-enforcement paradigm." The efficacy of law enforcement or the ineffectiveness of waging "war" is beside the point. Those for "war" are true patriots and strong, but those for "law enforcement" are weak and wimpy. "One is sort of a crime-solving approach, a law-enforcement approach, and the other is a national strategy, military, intelligence, wartime approach," Cheney said.

But even more than Cheney, Karl Rove, Bush's chief political advisor, has been the public advocate of the war paradigm as political wedge issue. Speaking before the Conservative Party of New York state last year, Rove said, ''Perhaps the most important difference between conservatives and liberals can be found in the area of national security. Conservatives saw the savagery of 9/11 and the attacks and prepared for war; liberals saw the savagery of the 9/11 attacks and wanted to prepare indictments and offer therapy and understanding for our attackers." In the demonized politics and legal netherworld of the war paradigm, the rule of law is for sissies.

And yet Hamdan's case moved through the courts. Salim Ahmed Hamdan, believed to be a driver and bodyguard of Osama bin Laden, was captured in Afghanistan in 2001 and jailed at the Guantánamo prison camp. The Bush administration held him for a year without charges and then declared he would be tried at some unspecified time before a secret military commission on unspecified crimes of "conspiracy." In this kangaroo court, Hamdan was not entitled to be present, or to see or learn any accusations or evidence against him. Hearsay would be admissible, though he'd never know what it might be. So Hamdan filed a suit challenging the legality of the tribunal and claiming he had rights under military and international law.

Now the Supreme Court's decision has thrown Bush's war paradigm into profound crisis. As the Republicans nervously approach midterm elections, Bush, through Rove, is prompting the Republican Congress to uphold his discredited position in order to continue demonizing Democrats. But transforming the issue into another Manichaean battle of "us" versus "the terrorists" will not make his position any more constitutional.

"We conclude," reads the court's opinion, "that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ [Uniform Code of Military Justice] and the Geneva Conventions."

The ruling is sweeping in its rejection of Bush's claims; it leaves none of the precepts of his war paradigm standing. In its wake his imperial presidency, at least before the majesty of the law, is a ruin.

Next page: Has Justice Kennedy set the stage for Bush and his top aides to face war-crimes charges?