Bush's insistence that the congressional Authorization for the Use of Military Force is the basis of his authority as commander in chief to assume bottomless extraordinary powers is dismissed. In the Hamdan case, his use of the congressional authorization to justify military commissions is discarded. But Bush has also cited the authorization for many of his dubious actions, from holding detainees without due process to domestic spying. The court's opinion is that the authorization cannot serve to "expand or alter the authorization" that Congress initially intended. The president's war powers, the court reminds him, does not contravene the Congress' war powers.
Nor does the president's fiat override the Uniform Code of Military Justice or the Geneva Conventions. In the case of the UCMJ, according to the court, the president cannot suppress due process. In the case of the Geneva Conventions, he cannot withdraw from an international treaty of which the United States is a signatory. Justice Stevens, writing for the majority, said, "The UCMJ conditions the President's use of military commissions on compliance not only with the American common law of war, but also with the rest of the UCMJ itself, insofar as applicable, and with the 'rules and precepts of the law of nations.'"
Bush's designation of Hamdan and other detainees as "enemy combatants," a vague category of stateless persons not granted the international protections of prisoners of war, is tossed out. Stevens cites Common Article 3 of the Geneva Conventions, but without elaborating its substance. That article, in fact, forbids torture -- "cruel treatment and torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment." Here, therefore, the court rejects Bush's torture policy. (And, as we shall see, Anthony Kennedy raises Common Article 3 with possibly explosive consequences.)
Whether Hamdan is associated with a power that signed or didn't sign the Geneva Conventions is irrelevant, despite Bush's argument that the issue is central. "Common Article 3, then, is applicable here" and, Stevens goes on, citing the court's collective opinion, "requires that Hamdan be tried by a 'regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.'"
Stevens' conclusion does not show any sympathy for Hamdan, or suggest that he has been unjustly imprisoned, or that he should be released. Contrary to Rove's earlier insinuations, he does not offer "therapy" or "understanding." Stevens, however, does wear his heart on his sleeve on "law enforcement." "We have assumed, as we must, that the allegations made in the Government's charge against Hamdan are true," he writes. "We have assumed, moreover, the truth of the message implicit in that charge -- viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."
Justices Stephen Breyer and Anthony Kennedy added to the impact of Stevens' opinion with important concurrences. Breyer underlined the point that the congressional authorization cannot be used by Bush to rationalize whatever action he chooses. "The Court's conclusion," he writes, "ultimately rests upon a single ground: Congress has not issued the Executive a 'blank check.'" Breyer's citation of the phrase "blank check" is his way of evoking the justice who has just retired, Sandra Day O'Connor, and her opinion in Hamdi v. Rumsfeld, a case in 2004 that foreshadowed the Hamdan decision. The court ruled in that case that a U.S. citizen, held as an "enemy combatant" in Guantánamo, could not be detained indefinitely without the right to challenge his imprisonment and the right to counsel. O'Connor wrote, "A state of war is not a blank check for the President."
When O'Connor was on the court, she was considered to be the key swing vote. Now that pivotal spot belongs to Anthony Kennedy. His opinion is worthy of intense interest, however, for more than that reason. Kennedy ventures into territory where others have not. His disdain for Bush's position is palpable. He cites Justice Robert Jackson's famous opinion in the 1952 Youngstown case: "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb." But Kennedy quotes Jackson not simply to expose the depth to which Bush has sunk. He is building toward another conclusion -- those who violate the Geneva Conventions can be prosecuted for war crimes.
The Geneva Conventions, after all, constitute an international treaty, enacted by the Congress. "By Act of Congress, moreover," Kennedy writes, "violations of Common Article 3 are considered 'war crimes,' punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U.S.C. §2441. There should be no doubt, then, that Common Article 3 is part of the law of war as that term is used in §821."
Kennedy moves on to discuss why Bush's military commissions do not meet the "general standards" of "civilized peoples." He has left dangling the open question of war crimes. But the opinion of a justice of the Supreme Court speaking in the majority is not merely a theory. Of all the justices, Kennedy, the swing moderate, has raised the most potentially volatile issue.
But Bush, Cheney, Rumsfeld, et al., need not worry that they will soon find themselves in the dock. There is little chance that the Justice Department under Gonzales will ever pursue Kennedy's logic, let alone develop a convoluted argument for why it shouldn't apply.
Next page: For Rove, even the constitutional wreckage of Bush's policy can be twisted for political gain