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Overreach Overturned

By Dan Froomkin
Special to washingtonpost.com
Friday, June 30, 2006; 1:00 PM

Yesterday's Supreme Court ruling, definitively curbing the Bush White House's assertion of nearly unlimited executive power in a time of war, puts the other two branches of government back in business.

The Republican-controlled Congress, which has remained resolutely blind, deaf and dumb as President Bush took national security matters entirely into his own hands, now has little choice but to rouse itself to some sort of action.

And in reasserting the rule of law, the high court has opened the way to what could be major legal action over other executive branch violations of established statutes -- about domestic spying, for instance. The ruling even raises the possibility that U.S. forces and Bush administration officials could be tried for war crimes.

The rousing of the legislative and judicial branches is the ultimate nightmare of the unilateralists within Bush's inner circle, most notably Vice President Cheney and his chief of staff, David S. Addington. They had argued that nothing -- not Congress, not the courts, not traditional notions of basic human rights -- should limit the president from pursuing the nation's enemies however he saw fit.

Worth watching closely: Whether the high court's decision will bolster the stature of other members of the administration, many of whom have reportedly had reservations about the Cheney-Addington approach all along. Or whether Cheney and Addington will continue to have Bush's ear, and will keep plotting in the shadows.

The Coverage

Here's the text of the ruling.

Linda Greenhouse writes in the New York Times: "The Supreme Court on Thursday repudiated the Bush administration's plan to put Guant?namo detainees on trial before military commissions, ruling broadly that the commissions were unauthorized by federal statute and violated international law.

" 'The executive is bound to comply with the rule of law that prevails in this jurisdiction,' Justice John Paul Stevens, writing for the 5-to-3 majority, said at the end of a 73-page opinion that in sober tones shredded each of the administration's arguments, including the assertion that Congress had stripped the court of jurisdiction to decide the case. . . .

"In an important part of the ruling, the court held that a provision of the Geneva Conventions known as Common Article 3 applies to the Guant?namo detainees and is enforceable in federal court for their protection.

"The provision requires humane treatment of captured combatants and prohibits trials except by 'a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people.' "

Charles Lane writes in The Washington Post: "Brushing aside administration pleas not to second-guess the commander in chief during wartime, a five-justice majority ruled that the commissions, which were outlined by Bush in a military order on Nov. 13, 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions.

"As a result, no military commission can try Salim Ahmed Hamdan, the former aide to Osama bin Laden whose case was before the justices, or anyone else, unless the president does one of two things he has resisted doing for more than four years: operate the commissions by the rules of regular military courts-martial, or ask Congress for specific permission to proceed differently."

Lane also notes: "Legal analysts said that the court's opinion could lead to a challenge to the National Security Agency's domestic surveillance program, because wiretapping is already covered by a federal statute, the Foreign Intelligence Surveillance Act, just as military commissions were, in the court's view, covered by the [Uniform Code of Military Justice]."

David E. Sanger and Scott Shane write in the New York Times: "The Supreme Court's Guant?namo ruling on Thursday was the most significant setback yet for the Bush administration's contention that the Sept. 11 attacks and their aftermath have justified one of the broadest expansions of presidential power in American history.

"President Bush and Vice President Dick Cheney spent much of their first term bypassing Congress in the service of what they labeled a 'different kind of war.' Now they will almost certainly plunge into negotiations they previously spurned, over the extent of the president's powers, this time in the midst of a midterm election in which Mr. Bush's wartime strategies and their consequences have emerged as a potent issue."

Peter Baker and Michael Abramowitz write in The Washington Post: "For five years, President Bush waged war as he saw fit. If intelligence officers needed to eavesdrop on overseas telephone calls without warrants, he authorized it. If the military wanted to hold terrorism suspects without trial, he let it.

"Now the Supreme Court has struck at the core of his presidency and dismissed the notion that the president alone can determine how to defend the country. . . .

"For many in Washington, the decision echoed not simply as a matter of law but as a rebuke of a governing philosophy of a leader who at repeated turns has operated on the principle that it is better to act than to ask permission. This ethos is why many supporters find Bush an inspiring leader, and why many critics in this country and abroad react so viscerally against him."

Congress Watch

So what will the Republican Congress do? Quite possibly, run to Bush's rescue -- with gusto. It is, after all, a campaign year; not a good time for nuance.

Doyle McManus, Peter Wallsten and Richard B. Schmitt write in the Los Angeles Times: "Meeting the high court's objections required little more than having Congress put its stamp of approval on a system of military tribunals, the White House suggested. And some congressional Republicans quickly agreed. . . .

"Thus far, the GOP-dominated House and Senate have given Bush almost everything he has asked for when it comes to fighting the U.S.-declared war on terrorism.

"Republican strategists are likely to see huge advantages in moving such an issue into the realm of political debate before November's congressional elections. In that sense, Thursday's decision could be a political plus for the GOP.

"White House political strategist Karl Rove has said repeatedly that the party's fall campaign will hammer the message that Democrats operate with a 'pre-9/11' worldview, and Republicans will attempt to paint Democrats critical of military tribunals as being soft on terrorism.

"Still, whatever the immediate political implications, moving concrete legislation through Congress will add a major item to the White House agenda, and some Republicans, especially in the Senate, have grown increasingly wary of the administration's efforts to enhance executive power."

The Loneliest Fight

Julian E. Barnes writes in the Los Angeles Times: "For four years, they waged what may have been the loneliest fight in the war on terrorism. Facing Bush administration hard-liners intent on finding novel ways to deal with enemy combatants, the armed services' own lawyers fought attempts to rewrite the rules of war. . . .

"Until now, administration hawks, led by Vice President Dick Cheney and his chief of staff, David S. Addington, had won almost every argument. This fight, they said, required more flexible guidelines, with fewer rights for those captured and fewer limits on their captors."

Barnes quotes retired Rear Adm. Donald Guter, the Navy's top uniformed lawyer when the military commission trials were first proposed in 2001, as saying: "This was seen as an opportunity, a vehicle to restore presidential power and authority. It was a very convenient vehicle. It was perfect. Fear tends to drive power to authority and to the executive branch."

On CNN , Lieutenant Commander Charles Swift, one of Hadman's attorneys, said of the ruling: "It's a return to our fundamental values. And that return marks a high water point in American history. It means that we can't be scared out of who we are. And that's victory, folks."

Carol J. Williams writes in the Los Angeles Times: "Colleagues attributed the high court ruling to what they considered to be Swift's determination to protect the integrity of U.S. jurisprudence against a Pentagon bent on retribution for terrorism attacks on U.S. forces."

What Bush Said

Bush made brief remarks about the ruling in a joint appearance with Japanese Prime Minister Junichiro Koizumi, after having had only a "drive-by briefing" on its meaning.

"The American people need to know that this ruling, as I understand it, won't cause killers to be put out on the street. . . . At any rate, we will seriously look at the findings, obviously. And one thing I'm not going to do, though, is I'm not going to jeopardize the safety of the American people. People have got to understand that. . . .

"[W]e've got people looking at it right now to determine how we can work with Congress if that's available to solve the problem."

White House Makes Lemonade

Today's ever-chipper "Morning Update" e-mail from the White House links to these two stories (and only these two stories) about the Hamdan decision:

* Joseph Curl and Charles Hurt 's story in the Washington Times, in which they write: "Republican leaders in Congress said yesterday that they will draft legislation to grant the Bush administration the authority to try prisoners at Guantanamo Bay before a military tribunal, a move that sets up a contentious debate between Republicans and Democrats on a hot-potato national-security issue just four months before midterm elections."

* David B. Rivkin Jr. and Lee A. Casey 's op-ed in the Wall Street Journal op-ed (subscription required), in which they describe the ruling's "sterling silver lining": "[N]one of the justices questioned the government's right to detain Salim Ahmed Hamdan (once Osama bin Laden's driver), or other Guantanamo prisoners, while hostilities continue. Nor did any of them suggest that Mr. Hamdan, or any other Guantanamo detainee, must be treated as civilians and accorded a speedy trial in the civilian courts. Precisely because opponents of the Bush administration's detention policies have advanced these, or substantially similar claims, Hamdan has dealt them a decisive defeat. . . . Hamdan vindicates the basic legal architecture relied upon by the administration in prosecuting this war."

Opinion Watch

Washington Post editorial: "After Sept. 11, 2001, the Bush administration chose to set aside the standing legal procedures and treaties for fighting this country's enemies and make up rules of its own -- at the expense of violating human rights, tarnishing U.S. prestige around the world, and undermining the checks and balances of American democracy. Yesterday, at last, the Supreme Court responded."

The holding that Common Article 3 of the Geneva Conventions covers all detentions in this conflict "casts into serious legal doubt the CIA's authority to run its network of secret prisons, not to mention the highly abusive interrogation tactics it has deployed at these 'black' sites. It means that there are no detentions beyond the reach of law and that those guilty of inhumane acts could be criminally liable."

New York Times editorial: "The message of this ruling is that the executive branch cannot continue in its remarkable insistence that because there is a war on terror, it no longer needs to follow established procedures that would subject it to scrutiny by another branch of government. The justices rejected the administration's constant refrain -- made in everything from its 'enemy combatant' policies to its defense of the National Security Agency's domestic spying -- that the authority Congress granted the president to use force after Sept. 11, the exigencies of wartime, or simply the inherent powers of the presidency allow President Bush to trample on existing laws as he sees fit."

Los Angeles Times editorial: "[I]nstead of passing a measure that rubber-stamps the inadequate procedures laid down by the administration, the House and Senate should expeditiously authorize tribunals that satisfy the requirements of the Uniform Code of Military Justice and the Geneva Convention."

Boston Globe editorial: "The message of Hamdan v. Rumsfeld, as Justice Stephen Breyer said, is that the president has no blank check in the treatment of prisoners. Instead of trying to get Congress now to give him one, Bush should do what he should have done in 2002: Try suspects fairly in courts, military or civilian, that would show that justice has not fallen victim to terrorism in the United States."

New York Daily News editorial: "What five justices failed to comprehend is that America is at war with an enemy unlike any other we have faced, one that does not abide by the Geneva Conventions or wear uniforms or represent any one nation or limit themselves to killing only opposing forces."

New York Post editorial: "What's next? Miranda warnings and a public defender for Osama himself, if the happy day ever comes when the master murderer is led shackled from the cave he now calls home?"

Newsday editorial: Bush's "stubborn refusal to embrace any role for the courts or Congress in handling detainees in the war on terror has undermined the nation's democratic principles and undercut its standing in the world."

San Francisco Chronicle editorial: "Looks as if the blank check that the Bush administration has been waving around has finally bounced."

Washington Times editorial: "The ruling will significantly undercut the president's ability to protect the United States. We believe that, in the long war against radical Islam that is still in its early stages, this is not a leading indicator but a trailing one -- a last gasp of the pre-September 11 mindset."

David Ignatius , in a Washington Post opinion column: "The Supreme Court reminded the world yesterday that America is a nation of laws that insists on following rules, even as it brings killers to justice. Over time, that will be our most effective anti-terrorist weapon of all."

Eugene Robinson in a Washington Post opinion column: "It seemed almost too much to hope for, but the Supreme Court finally called George W. Bush onto the carpet yesterday and asked him the obvious question: What part of 'rule of law' do you not understand?"

Harvey Silverglate in a Los Angeles Times op-ed: "In its decision in Hamdan vs. Rumsfeld, the Supreme Court sent a clear message to the White House on behalf of itself and a Congress reluctant to assert its own powers and obligations: We're all in this war on terror together, and efforts by the president to run it alone will not be tolerated."

Addington's Disease

Jane Mayer 's New Yorker profile of Addington, now online, offers some fascinating background on how he worked surreptitiously to create the system the high court so categorically struck down yesterday.

"On November 13, 2001, an executive order setting up the military commissions was issued under Bush's signature. The decision stunned [then-secretary of state Colin] Powell; the national-security adviser, Condoleezza Rice; the highest-ranking lawyer at the C.I.A.; and many judge advocate generals, or JAGs, the top lawyers in the military services. None of them had been consulted. . . . According to multiple sources, Addington secretly usurped the process. He and a few hand-picked associates, including Bradford Berenson and Timothy Flanigan, a lawyer in the White House counsel's office, wrote the executive order creating the commissions. Moreover, Addington did not show drafts of the order to Powell or Rice, who, the senior Administration lawyer said, was incensed when she learned about her exclusion."

Alex Chadwick interviewed Mayer on NPR yesterday, after the ruling.

Said Mayer: "Basically what the court was saying today to this handful of people was, not so fast, there are limits, and the rule of law is more important than executive power. . . .

"[I]t's a huge setback but in particular for one faction inside the White House. It's not really just the whole Bush Administration . . . in fact many of the arguments that the court made today were arguments that were made by other people in the Bush Administration earlier. The State Department, lawyers for the Justice Department, at various points there were other parts of the government that were saying to the White House, and in particular saying to Cheney's office and to David Addington, you're overstepping, you're overreaching. But really the power was so much concentrated in the hands of this small group of people, in particular in Addington's hands, that he was able to formulate a lot of these policies nonetheless, and now they've been struck down."

Deja Vu

It's worth noting, however, that there's a powerful sense of deja vu to this whole story.

Go read my column from almost exactly two years ago , on the occasion of the often-forgotten Supreme Court ruling -- also about detainee rights -- in which then-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."

Claude Allen Watch

Stephen Manning writes for the Associated Press: "Former White House adviser Claude Allen is negotiating with prosecutors in hopes of avoiding a trial on theft charges, according to his attorney.

"Allen was to go on trial Friday for allegedly trying to make fraudulent returns worth at least $5,000 at Target and other stores.

"But Montgomery County prosecutors and Allen's attorneys have agreed to postpone the trial while negotiations continue, according to Allen lawyer Gregory Craig. He would not elaborate on the talks."

Poll Watch

Ronald Brownstein writes in the Los Angeles Times: "President Bush's job approval rating is up slightly, but discontent over the Iraq war, especially among women, is continuing to boost Democratic prospects in the struggle for control of Congress, a Times/Bloomberg poll has found. . . .

"Bush's 41% job approval rating represented an increase within the poll's margin of error from his 39% showing in April. Similarly, 56% disapproved of his performance, virtually unchanged from 57% in April. And Bush still faces an intensity gap: The share of Americans who strongly disapproved of his performance (40%) remained more than double the share who strongly approved (18%)."

Here are the complete results .

Dana Blanton writes for Fox News: "A new FOX News poll finds that President George W. Bush is holding onto the gains he made earlier in the month as his approval rating comes in at 41 percent."

Here are those complete results .

Froomkin Watch

I'm on Washington Post Radio today, shortly after 2 p.m. And the column is taking a long Independence Day Weekend. It will resume on Wednesday, July 5. I'll also be Live Online that afternoon at 1 p.m. ET.

George Bush, the Supreme Court's Just Ruled Against You, What Are You Going to Do Now?

He's going to Graceland .

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