By Dan Froomkin
Special to washingtonpost.com
Thursday, June 12, 2008; 1:25 PM
President Bush's slow and painful schooling in constitutional law continued today as the Supreme Court ruled for the third time in four years that he had violated a basic precept of the American legal system.
The court ruled 5-4 that Bush cannot deny prisoners at Guantanamo Bay the right to challenge their detentions in federal district court. Some of them have been held already -- without charges -- for more than six years.
Justice Anthony Kennedy, writing for the court, determined that the prisoners in the U.S.-run facility "have the constitutional privilege of habeas corpus. . . ."
"The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law," Kennedy wrote.
The ruling does not force the closing of Guantanamo, but it could push the Bush administration toward that decision -- although the actual closing would almost certainly occur in the next administration.
Consider how Sue Pleming wrote for Reuters last month that senior U.S. officials were already anticipating a possible rebuff from the court.
"If the Supreme Court concludes that the detainees have constitutional rights, then there would be little legal difference between holding them in Guantanamo or holding them on the (U.S.) mainland," Pleming quoted a senior official as saying at the time. "It's possible the Supreme Court decision could provide an impetus to a policy decision to close Guantanamo."
The Supreme Court decision was close -- one vote made the difference. And the dissent was bitter. Mark Sherman writes for the Associated Press: "In dissent, Chief Justice John Roberts criticized his colleagues for striking down what he called 'the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.'
"Justices Samuel Alito, Antonin Scalia and Clarence Thomas also dissented.
"Scalia said the nation is 'at war with radical Islamists' and that the court's decision 'will make the war harder on us. It will almost certainly cause more Americans to be killed.'"
The court has ruled twice before that prisoners at Guantanamo have the right to judicial review -- or, as Todd S. Purdum wrote in the New York Times, "that in the United States, even in wartime, no prisoner is ever beneath the law's regard, and no president above its limits."
In June 2004, Supreme Court Justice Sandra Day O'Connor wrote: "A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." In June 2006, the court ruled that that a provision of the Geneva Conventions known as Common Article 3 applied to the Guantanamo detainees. The provision prohibits trials except by "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people."
As I wrote in my June 29, 2004 column and my June 30, 2006 column, each time the court so powerfully rejected the executive branch's overreach, some analysts anticipated that the president would recognize his limits, and that Congress would assert itself. Both times, however, they were disappointed.
After the 2006 decision, for instance, the Republican-controlled Congress sent Bush a bill suspending habeas corpus for detainees. Today's court decision specifically strikes down that provision.
With Democrats in control of Congress and his powers ebbing daily, it's hard to see how Bush won't learn his lesson this time.
Perhaps the third time's the charm.Intel Watch
Michael Isikoff and Mark Hosenball write for Newsweek: "A previously undisclosed CIA report written in the summer of 2002 questioned the 'credibility' and 'truthfulness' of an Al Qaeda detainee who became a key source for the Bush administration's claims about links between Saddam Hussein and Osama bin Laden. The statements of the detainee -- a captured terrorist operative named Ibn al-Shaykh al-Libi -- were the principal basis for President Bush's contention in a major pre-Iraq War speech that Saddam's regime had 'trained Al Qaeda members in bombmaking and poisons and deadly gases.' The speech was delivered in Cincinnati on Oct. 7, 2002, just as Congress was taking up the White House-backed resolution authorizing the president to invade Iraq.
"But two months before Bush's dramatic assertion, the CIA had raised serious doubts about whether al-Libi might be inventing some of what he was telling his interrogators, according to a 171-page Senate Intelligence Committee report on pre-war intelligence released last week."
Complicating the story is the fact that "the agency itself had vetted and approved the language based on al-Libi's claims in both Bush's Cincinnati speech and [then-secretary of state Colin] Powell's presentation to the United Nations. Without actually using his name, Powell included the most expansive version of al-Libi's claims about chemical- and biological-weapons training--without hinting that there were doubts about the source's credibility. 'I can trace the story of a senior terrorist operative telling how Iraq provided training in these weapons to Al Qaeda,' Powell said during one dramatic flourish. 'Fortunately, this operative is now detained, and he has told his story. I will relate to you now as he himself described it.'"
As has been previously reported, "al-Libi only made his claims about Saddam's training for Al Qaeda after the CIA rendered him to a foreign intelligence service (later identified by Tenet as Egypt), where he was allegedly subjected to brutal interrogation. According to al-Libi, he was locked in a tiny box less than 20 inches high and held for 17 hours--an interrogation technique known as a 'mock burial,' which was considered even by some of the most aggressive Bush administration lawyers as illegal under U.S. and international laws banning torture. After being let out, al-Libi claimed, he was thrown to the floor and punched for 15 minutes. According to CIA operational cables, only then did he tell his 'fabricated' story about Al Qaeda members being dispatched to Iraq."Poll Watch
Jackie Calmes reports in the Wall Street Journal that Obama begins his presidential race against McCain with a six-point lead in the latest Wall Street Journal/NBC News poll, conducted by Republican Neil Newhouse and Democrat Peter Hart.
"'I think the real story is the shadow that George Bush is casting over this election,' Mr. Newhouse [says]. What's hurting Sen. McCain is voters' sense that 'he will pattern his policies after George W.'
"Mr. Hart called the president 'a 200-pound ball and chain' around McCain's ankle, a linkage Sen. Obama and the Democratic National Committee are trying to reinforce daily in voters' minds. 'Unless he finds some way to cut it loose,' Mr. Hart adds, 'he's going to be dragging it right through the election.'
"The anti-Bush evidence is overwhelming. The latest poll findings add to the stretch of more than three years in which majorities have expressed disapproval of Mr. Bush's job performance. And increasingly, voters don't like him personally. By 60% to 30%, they have negative views of him, his worst showing ever.
"Mr. Newhouse says it is a measure of Mr. Bush's dismal standing that his best job-approval score is for handling the unpopular war in Iraq: Only 33% approve, yet that is 12 points higher than his rating for handling the economy and five points higher than his overall-job score."Another Crop of Bush Medals
James Gerstenzang writes in the Los Angeles Times: "President Bush will award the nation's highest civilian award, the Presidential Medal of Freedom, to a veteran federal judge, Laurence H. Silberman, whose controversial role in national security issues has made him a champion to conservatives, and retired Marine Gen. Peter Pace, who was denied a second term as chairman of the Joint Chiefs of Staff. . . .
"In choosing Silberman and Pace, Bush is focusing attention on two figures closely identified with the central elements of his national security policy, the campaign against terrorism and the war in Iraq. . . .
"At least two of Silberman's former law clerks have gone on to establish themselves as key Bush administration allies in the national security arena: Viet D. Dinh, chief author of the USA Patriot Act, passed after the Sept. 11 attacks, and John C. Yoo, who as deputy assistant attorney general wrote a memorandum in 2002 widely viewed as permitting torture in the fight against terrorism.
"The White House announcement said Silberman had 'devoted his life to promoting, enforcing and defending the rule of law.'"
David Stout writes in the New York Times: "Two Democrats are among the six. Donna E. Shalala, president of the University of Miami in Florida and a former president of Hunter College who was secretary of health and human services under President Bill Clinton, is one. The other is the late Representative Tom Lantos of California, a Hungarian-born Jew who was the only Holocaust survivor to serve in Congress and was widely known as a human rights champion. Mr. Lantos died on Feb. 11. . . .
"General Pace is not the first Medal of Freedom recipient to be associated with the war in Iraq. On Dec. 14, 2004, the president bestowed medals on George J. Tenet, the longtime director of central intelligence who built the case for going to war based in part on assessments that Iraq possessed deadly unconventional weapons; Gen. Tommy R. Franks, the overall commander of the invasion of Iraq; and L. Paul Bremer III, the chief civilian administrator of the American occupation of the country."
Silberman, who co-chaired a Bush-appointed commission tasked to investigate how intelligence on Iraqi WMDs could have gone so wrong, conveniently came back in March 2005 with a report that spread blame pretty much everywhere but the White House.
And as Michelle Goldberg wrote for Salon in 2004, Silberman has "been near the febrile center of the largest political scandals of the past two decades, from the rumored 'October surprise' of 1980 and the Iran-contra trials to the character assassination of Anita Hill and the impeachment of President Clinton. Whenever right-wing conspiracies swing into action, Silberman is there."Bush's Impeachment Insurance
Dana Milbank writes in The Washington Post that the House yesterday sent Rep. Dennis Kucinich's articles of impeachment against Bush to the Judiciary Committee, where they will die a quiet death.
"Why so unwilling to impeach Bush? As Democratic leaders like to say, two words: Dick Cheney. At this late stage in his presidency, Bush can still feel confident that his job is secure, if only because his foes are so terrified of the man who would succeed him.
"As it happens, the Dark Lord himself had escaped the confines of his secure, undisclosed location yesterday afternoon and was giving a speech to the friendly ears of the U.S. Chamber of Commerce. His topic: energy. His solution: more oil. . . .
"'Drill!' 'Oil!' 'Gas!' 'More!'
"In his oil-patch zeal, Cheney sounded more chairman of Halliburton than vice president of the United States. The country has moved on to a debate about how to reduce carbon emissions to slow global warming. Domestic oil drilling would do little if anything to ease gas prices in the short term and, even in the long term, wouldn't reverse the growing supply/demand imbalance as emerging economies devour dwindling reserves.
"But Cheney needn't worry about sounding tone-deaf. It merely provides Bush more job security."A New Tall Tale
Erika Bolstad and Kevin G. Hall write for McClatchy Newspapers: "As Congress has debated energy policy over the past several days, an unusual argument keeps surfacing in support of drilling off the U.S. coastline and in Alaska's Arctic National Wildlife Refuge.
"Why, ask some Republicans, should the United States be thwarted from drilling in its own territory when just 50 miles off the Florida coastline the Chinese government is drilling for oil under Cuban leases?"
Except it's not true.
"'China is not drilling in Cuba's Gulf of Mexico waters, period,' said Jorge Pinon, an energy fellow with the Center for Hemispheric Policy at the University of Miami and an expert in oil exploration in the Gulf of Mexico."
But surprise, surprise: "Vice President Dick Cheney, in a speech Wednesday to the U.S. Chamber of Commerce, picked up the refrain. Cheney quoted a column by George Will. . . .
"In his speech, Cheney described the Chinese as being 'in cooperation with the Cuban government. Even the communists have figured out that a good answer to higher prices means more supply.'"Twilight Watch
In the meantime, Cheney is clearly alarmed at the possibility that all his work will be rolled back by a Democratic president. At yesterday's event, he indicated that he doesn't intend to go down without a fight.
Asked what he considered the most important achievement of the past seven years, he replied; "I would point to what we've done with respect to the global war on terror. . . . [I]t is not an accident that it's been now nearly seven years since 9/11 and we haven't been hit again."
And he spoke of how important is it that "we do whatever's necessary to defend the American people here at home. We can do it. We've proved it now for the last seven years and the next government, both the legislative and executive branches will be tested in terms of whether or not they're willing to continue on that vein or buy into the proposition that somehow we ought to dismantle it all and that we shouldn't be doing what we're doing. I think we did exactly the right thing and I plan to do everything I can to defend it."
In part four of my Nieman Watchdog series on what top administration officials are doing to make it hard for their successors to reverse their policies, I ask: What's Cheney up to these days?Iran Watch
Dion Nissenbaum writes for McClatchy Newspapers: "Six months ago, after American intelligence agencies declared that Iran had shelved its nuclear-weapons program, the chances of a U.S. or Israeli military strike on Iran before President Bush left office seemed remote.
"Now, thanks to persistent pressure from Israeli hawks and newly stated concerns by the International Atomic Energy Agency, the idea of a targeted strike meant to cripple Iran's nuclear program is getting a new hearing.
"As Bush travels across Europe to gain support for possible new sanctions against Iran, Israeli leaders have been working to lay the psychological foundation for a possible military strike if diplomacy falters. . . .
"Intelligence analysts disagree over the likelihood of a military strike on Iran before Bush leaves office. But there's little disagreement about the possible repercussions, which could include missile strikes on Israel, an attack on Saudi Arabian oil facilities, renewed attacks on Israel from Hezbollah fighters in southern Lebanon, a resurgence of Shiite Muslim resistance to U.S. forces in Iraq or an attack on oil shipping in the Persian Gulf, which could send crude oil prices well above $200 a barrel."
Steven Lee Myers and Nicholas Kulish write in the New York Times: "Increasingly tough warnings from President Bush and his European allies have done nothing to temper Iran's stance on its nuclear program, worsening the confrontation over what American officials and others suspect is a covert Iranian plan to build an atomic bomb.
"Even as Mr. Bush won new support from the Europeans, President Mahmoud Ahmadinejad of Iran responded by mocking attempts to rein in his country's nuclear program, which Iran maintains is for peaceful development of nuclear energy. Mr. Ahmadinejad said in a televised speech in Iran that the West 'cannot do anything' and singled out Mr. Bush as a lame duck who had failed at every attempt to hurt Iran. . . .
"The Iranians appear to believe that, should the crisis over the nuclear program deepen, rather than supporting Mr. Bush, his European allies would probably rein him in as well as the increasingly militant Israelis, who have raised the possibility of strikes on what they suspect are Iranian nuclear facilities. . . .
"Though Mrs. Merkel supported Mr. Bush during his visit here, she seemed to signal that she did not advocate the kind of actions he has called on countries to take in addition to the United Nations sanctions, as for example the United States already does. Further measures 'need to be negotiated in the Security Council of the United Nations,' Mrs. Merkel said. 'The more countries are in on this, the more effective the impact will be on Iran.'"
The USA Today editorial board writes: "Most experts believe it will be a few years before Iran can make a nuclear weapon. That leaves time for a new diplomatic push."Iraq Watch
I wrote at length in yesterday's column about Bush's apparently flailing attempts to lock Iraqi lawmakers into a long-term agreement on his terms.
Jonathan Weisman writes in today's Washington Post: "Responding to a complaint by Senate Armed Services Committee Chairman Carl M. Levin (D-Mich.) and Sen. John W. Warner (R-Va.), the administration sent officials from the State Department, the National Security Council and the Pentagon to Capitol Hill on Tuesday to brief Senate Armed Services Committee members and Senate Foreign Relations Committee staff on the Iraq negotiations.
"[Sen. Joseph I.] Lieberman, who attended the briefing, took the administration position that the agreements are more 'legalistic' than momentous. 'Unless either of these agreements includes a specific and automatic commitment to come to defense of another country if there is an attack on it, like we have with Japan and our NATO allies, then these agreements do not have to be submitted to the Senate,' Lieberman said, speaking on a McCain campaign conference call. 'They're not treaties in that sense.'
"Other lawmakers, both Democrats and Republicans, have countered that a declaration outlining the 'framework' agreement, signed by President Bush and Iraqi Prime Minister Nouri al-Maliki last fall, committed the United States to defend Iraq against external and internal threats. In a letter to Bush in January, Obama wrote that the negotiations appear aimed at 'an agreement binding on future Administrations and Congresses.'
"'That suggests to the American people and to all the world that you envision an American occupation of Iraq for decades to come,' Obama concluded. . . .
"The House has already passed legislation that would force the agreements to be submitted to Congress, but the Senate has not followed suit."
The Miami Herald editorial board writes: "For months, Bush administration officials have insisted that there are no plans to create a permanent U.S. military presence in Iraq. Yet there are disturbing signs that another blueprint may be in the works behind the scenes. As this presidency winds down, Congress has no more important task than to watch what the administration is doing on this front, not merely what it is saying. . . .
"This administration has no business making prolonged commitments that reduce the flexibility of the next commander in chief. The next president may want to end the war."The Iran Angle in Iraq
Faiz Shakir writes for ThinkProgress.org: "The reason the White House is so hell-bent on signing a long-term agreement may have less to do with Iraq and more to do with Iran. According to press reports of the ongoing negotiations, the Bush administration is seeking the 'power to determine if a hostile act from another country is aggression against Iraq.' . . .
"The administration's request would seemingly allow the U.S. to brand Iran as an enemy of Iraq and attack Iran in the name of defending Iraq pursuant to a legal obligation under the status of forces agreement."
Shakir also notes that Amit R. Paley and Karen DeYoung quoted a senior Shiite politician in The Washington Post yesterday disclosing that American negotiators want continued control over Iraqi airspace and the right to refuel planes in the air -- "positions he said added to concerns that the United States was preparing to use Iraq as a base to attack Iran."The European Trip
"Merkel, one of Bush's closest foreign allies, never quite answered the question. 'There was always . . . openness here between us,' Merkel said at one point. 'This cooperation is fun, I must say, and as the president said, it is going to be a sprint to the last day of his office.'
"For most other Europeans, it seems, the sprint cannot end soon enough. For years, protesters regularly crippled European capitals with massive anti-Bush demonstrations. Now, the president's last scheduled visit to Europe this week is prompting a continental yawn, as Europeans look ahead to Sen. John McCain (R-Ariz.) or Sen. Barack Obama (D-Ill.) as his successor."
Adrian Hamilton writes in his opinion column in the Independent: "Not a tear was shed, nor a cheer raised. Not even the protesters have bothered to turn out as President Bush has wound his way around Europe on the final visit of his two-term occupancy of the White House. Instead, he has come almost like an anonymous diplomat to hold talks in private, say a few words to the cameras and -- unless the UK has something very unexpected up its sleeve this weekend -- to depart almost unrecognised, and certainly unacclaimed.
"There's a fanciful version of this event, spun by the commentators in Washington and followed even by some here, which says the very anonymity of Bush's visit is a tribute to the success of the relationship he has now developed with Europe. Where in the aftermath of the Iraq invasion, relations were fraught and loud, now Bush and Europe are pretty comfortable with each other. The EU's three main leaders -- Gordon Brown, Angela Merkel and Nicolas Sarkozy -- are all positively pro-American. Even Iran does not divide them.
"Well, this may be the gloss which diplomats wish you to believe. But it's the opposite of reality. The silence that has accompanied Bush's final foreign tours is the silence of failure, not the quiet of accomplishment."
Roger Cohen writes in his New York Times opinion column: "Bush-bashing has become a bore. I won't indulge in it, except to say one more thing. . . .
"He has proved mean, vindictive, surly, controlling and impatient, as befits his guns-at-the-ready gait. Apologizing for tough-guy rhetoric now, as he has, is no remedy. There's nothing worse than a control-freak chief executive with no interest in details like the disbanding of the Iraqi Army or the strength of New Orleans levees.
"This deficiency of temperament has been devastating. America's leader must still inspire and give hope. The U.S.A. is the last ideological country on earth. If its message doesn't resonate, big issues go unaddressed. When it's dusk in America, the shadows spread wide.
"This desultory stroll around a Europe more focused on his successor is a reflection the damage a flawed temperament has done to trans-Atlantic ties. Europeans got tired of being scowled at."Cowboy Talk
Alex Koppelman writes for Salon about "a conundrum for conservative bloggers: When you've spent years attacking most of the critics of any part of the prosecution of the war in Iraq, and attacking those who criticize President Bush on the issue, what do you do when Bush makes some limited criticism of himself? Apparently, the answer is that you just attack Bush for being insufficiently loyal . . . to himself.
"[I]n a recent interview with a British newspaper, Bush mentioned one regret he has about the war. 'I think that in retrospect I could have used a different tone, a different rhetoric,' Bush said. Phrases like 'bring them on' and 'dead or alive,' he said, 'indicated to people that I was, you know, not a man of peace.'
"[T]he bloggers at Powerline, who've previously gone a wee bit over the top in their admiration for Bush, were up in arms. The site's John Hinderaker referenced a comment he says former Sen. Rick Santorum made to him about the Bush administration having 'battered President syndrome' and said, 'Bush appears to have more or less internalized the criticisms that his enemies have lodged over the years. . . . Bush [repeated] one of the sillier attacks the left has launched on his Presidency.' One of Hinderaker's co-bloggers, Paul Mirengoff, concurred, writing, 'Bush seems determined to drive his approval rating down to roughly zero percent.'"Letterman on Cheney
Here's an exchange between David Letterman and former White House press secretary Scott McClellan last night.
Letterman: "My feeling about Cheney, and also Bush -- but especially Cheney -- is that he just couldn't care less about Americans. And the same is true of George Bush. And all they really want to do is somehow kiss up to the oil people so they can get some great annuity when they're out of office. (Applause.) 'There you go Dick -- nice job -- there's a couple of billion for your troubles.' I mean, he pretty much put Halliburton in business and the outsourcing of the military resources to private mercenary groups and so forth. I mean, is there any humanity in either of these guys?"
McClellan: "Well look, I still have personal affection for the President. I can't speak to the Vice President's thinking that well because he's someone who keeps things to himself and he believes in doing it his way and he doesn't care what anybody else thinks. He's going to do it the way he feels is best and that's not always what's in the best interest of this country -- as we've seen."Late Night Humor
Jay Leno, via U.S. News: "President Bush gave a big speech today in Europe. He says he regrets giving the false impression that he is not a man of peace. But see, that's the problem. Oh, you start one or two little wars, and right away, oh, everybody jumps to conclusions."Cartoon Watch