How the Supreme Court Struck Back At the Bush Administration


New at Mother Jones: In an essay that appears in the August 10, 2006 issue of the New York Review of Books (www.nybooks.com), and posted here (via Tomdispatch) with the kind permission of the editors of that magazine, David Cole examines how the Supreme Court, in its Hamdan decision, struck back at a Bush administration bent on expanding its powers at the expense of the other branches of government. He writes:

[T]he Supreme Court’s decision in Hamdan v. Rumsfeld, issued on the last day of its 2005-2006 term, [is] in equal parts stunning and crucial. Stunning because the Court, unlike Congress, the opposition party, or the American people, actually stood up to the President. Crucial because the Court’s decision, while on the surface narrowly focused on whether the military tribunals President Bush created to try foreign suspects for war crimes were consistent with U.S. law, marked, at a deeper level, a dramatic refutation of the administration’s entire approach to the “war on terror.”

At bottom, the Hamdan case stands for the proposition that the rule of law — including international law — is not subservient to the will of the executive, even during wartime. As Justice John Paul Stevens wrote in the concluding lines of his opinion for the majority:

“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.”

The notion that government must abide by law is hardly radical. Its implications for the “war on terror” are radical, however, precisely because the Bush doctrine has so fundamentally challenged that very idea.

Read the rest here.

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