Dog Pile on SCOTUS, Part II

Part I of Dog Pile on SCOTUS discussed Mister Bush's false claims that the Hamdan versus Rumsfeld ruling "accepted" his use of Guantanamo bay as a detention center for "enemy combatants." It did nothing of the sort. The Supreme Court did not address the legitimacy of Guantanamo because that issue was not part of the case.

As Bush was interpreting a SCOTUS decision much in the same manner he interprets legislation in whatever manner favors him, two of the administration's most visible echo chamberlains castigated the court for putting any limitations on presidential powers at all.

One of them, not surprisingly, was Charles Krauthammer, the neoconservative columnist and co-author of the September 20, 2001 Project for the New American Century letter that exhorted Mister Bush to invade Iraq even if that country couldn't be linked to the 9/11 attacks.

According to Krauthammer, "logic went AWOL" in the court when it told Mister Bush his military tribunals were illegal. As is his habit, Krauthammer supported his arguments for special presidential powers by distorting facts and rewriting history.

During the Civil War, Lincoln suspended the writ of habeas corpus — trashing the Bill of Rights or exercising necessary emergency executive power, depending on your point of view. But he got the whole troublesome business done by 1865 and the Supreme Court stayed away.

Like most well crafted lies, this statement contains just enough of the truth to fool most of the people most of the time. And like most crafty liars, Krauthammer omits a vital piece information that puts the Civil War habeas controversy in proper context.

In the case of ex parte Merryman, then Chief Justice Roger Taney, riding a circuit bench while the Supreme Court was in recess, lambasted Lincoln for suspending habeas. In no uncertain terms, Taney decreed that clear intent of the Constitution was to give the power to suspend habeas in time of war to Congress and Congress alone. That Lincoln chose to ignore this ruling by no means justify Krauthammer's statement that the "Supreme Court stayed away" from the matter.

Krauthammer also misrepresents Hamdan decision in his customary vituperative style: "The court's wanton overriding of Congress and the president is another in a long string of breathtaking acts of judicial arrogance."

If you take a fire hose to the bellicose language in that sentence, you get something to the effect that the court extended its power to a case that arose under the Constitution, the laws of the United States, and treaties made under authority of America's Constitution and laws. Which is precisely what Article III charges the court to do.

Another Dog Piles On

John Yoo, a key architect of the Bush administration's claims of "plenary" (absolute) executive power, described the Supreme Court's Hamdan decision as a "power grab."

A president responds to an unprecedented war with unprecedented measures that test the limits of his constitutional authority. He suffers setbacks from hostile Supreme Court justices, a critical media and a divided Congress, all of which challenge his war powers.

Yoo's rhetoric deserves a phrase-by-phrase deconstruction, because it so typifies the "euphemism, question-begging and sheer cloudy vagueness" of today's Rovewellian political language.

There is nothing genuinely "unprecedented" or "new" about the so-called war on terror. Religious fanaticism, terrorism, vague and shadowy threats, non-state entities, insurgency, asymmetric forces, clashes of culture, and all the rest of it have been integral aspects of armed conflict since Sun Tzu was a staff sergeant. There is no characteristic of our present war that Thucydides didn't write about more than 2,400 years ago in The History of the Peloponnesian War, and none of it was new then either.

For "hostile" justices, a "critical" media, and a "divided" Congress to block or question the legality of trial by unilaterally established military commissions in no way constitutes a "setback" in Mister Bush's conduct of this war. Hamdan and the other Guantanamo detainees are already out of the fight. Arriving at a legally and politically accepted manner of bringing them to trial has no bearing on the continued execution of the war, which to date has been characterized by incompetent execution at the highest levels of the chain of command.

As to challenging Mister Bush's war powers: what war powers? You'll hear plenty of talk about them, but you won't find them delineated anywhere. Article II of the Constitution makes the president commander in chief of the military. It makes no distinction of his powers in that role between wartime and peacetime, and it makes no distinction between declared and undeclared wars.

As for Yoo accusing the Supreme Court of having made a "power grab" in the Hamdan decision--well, coming from the guy who wrote, "In the exercise of his plenary power to use military force, the president’s decisions are for him alone and are unreviewable," that's a delectable morsel of pot-and-kettle irony.

Fear Factor

The administration's noise machine has clumped SCOTUS in with the media, Congress, the Clintons, the French, Catholics who voted for John Kerry, and everyone else who might conceivably be viewed as an "enemy" of this imperial presidency. In its ruling that military commissions violate article 3 of the Geneva Convention, the court told Mister Bush the word he hates to hear most: no.

It may be that the Hamdan ruling will inspire a resurgence of spinal development in our other institutions, but don't start counting your chickens just yet.

The consistent theme behind Bush's claims of absolute power has been that he needs complete freedom of action to "protect the country," and anyone who tries to limit presidential power puts Americans at risk. That message has been pounded into the consciousness and conscience of the public, Congress, the media, and now, the Supreme Court.
Anyone who successfully stands up to this presidency runs the risk of being found guilty in the court of public opinion if another 9/11 occurs.

That's a very real fear, and one that our bravest public servants may find difficult to overcome.

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Commander Jeff Huber, U.S. Navy (Retired) writes from Virginia Beach, Virginia. Read his commentaries at ePluribus Media and Pen and Sword.

Also see Smoke, Mirrors and War Powers.