Tuesday, July 11, 2006

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.


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.


  1. Jeff:

    I don't know if you've had a chance to read the etxt of "ex parte Merryman," or if you've read a synopsis, but Chief Justice Taney almost seemed baffled that the issue had come up. Far from 'staying out of it' as Krauthammer suggests, Taney stuck his nose in about as far as it would go, and even referred back to actions of the Jefferson administration. Here's a good excerpt from the case:

    "As the case comes before me, therefore, I understand that the President not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him.

    No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the President claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there is no difference of opinion, and that it was admitted on all hands that the privilege of the writ could not be suspended except by act of Congress.

    When the conspiracy of which Aaron Burr was the head became so formidable, and was so extensively ramified to justify, in Mr. Jefferson’s opinion, the suspension of the writ, he claimed, on his part, no power to suspend it, but communicated his opinion to Congress, with all the proofs in his possession, in order that Congress might exercise its discretion upon the subject, and determine whether the public safety required it. And in the debate which took place upon the subject, no one suggested that Mr. Jefferson might exercise the power himself, if, in his opinion, the public safety demanded it.

    Having, therefore, regarded the question as too plain and too well settled to be open to dispute, if the commanding officer had stated that upon his own responsibility, and in the exercise of his own discretion, he refused obedience to the writ, I should have contented myself with referring to the clause in the Constitution, and to the construction it received from every jurist and statesman of that day, when the case of Burr was before them. But being thus officially notified that the privilege of the writ has been suspended under the orders and by the authority of the President, and believing as I do that the President has exercised a power which he does not possess under the Constitution, a proper respect for the high office he fills requires me to state plainly and fully the grounds of my opinion, in order to show that I have not ventured to question the legality of this act without a careful and deliberate examination of the whole subject. "

    You're right, Krauthammer is completely out in left-field on this, but a lot of people will hear him say that the Supreme Court sat back and let Lincoln suspend the writ when they did nothing of the sort.

    Taney also quotes extensively from Chief Justice Marshall (the previous Chief Justice) to further back up his opinion.

  2. Mus,

    I researched the Taney opinion fairly extensively for that piece of war powers that I published back in December.

    I thought his reaction was a basic YGTBFSM declaration, and a real stake in the ground regarding the roles of the courts. He was, as I read it, accusing Lincoln of being a Julius Caesar class tyrant.

    I'd be interested in getting your take on FDR's internment policies when you get around to putting thoughts to word on it.

  3. Speaking of 9/11, is there another giant Freedom Walk set for this year, on the 5th Anniversary?

    Sorry, I have a Minor in English: "pounded into the conscience"? You mean "consciousness"?

  4. Not sure about the Freedom Walk plans, Jeff.

    And "pounded into the conscience" was a deliberate choice, as in a ploy to instill a sense of guilt.

    But I see what you mean.

    Maybe "pounded into the consciousness and consience..." would be a clearer way to put it.

  5. great writing Jeff

  6. Thanks for the nice words, Mike, and for stopping by.

  7. Thanks very much for doing all the research and then putting it all into plain language, in context. You're doing valuable work here.

    I've concluded that words mean nothing to this regime, that they just string together phrases that sound good to them that have no reality and John Yoo's "power grab" comment is an example of this. Pot-and-kettle, indeed. Yoo's just manning one of the propaganda catapults, launching another of their flaming-sack attacks.

    And it does look like they've backed down, this time, at least regarding Geneva conventions. In word, at least; we'll have to wait and see about deed.

  8. We'll see if they've really "backed down" or not.

    Graham has some interesting things to say about Congressionally approved military commissions. Doesn't sound like he's wild about the idea.

    But Graham, like Specter, often gives the appearance of standing up to the administation before he backs down.

  9. Jeff:

    I disagree with the internment policies FDR used in WWII, although the Supreme Court upheld the case in Korematsu. Those cases differed slightly from what we are dealing with today in that the internment specifically targeted a certain race, which makes the action quite suspect under the Constitution. Even the majority of the Supreme Court, who upheld the internment in Korematsu, agreed that it was race-specific and required the utmost scrutiny. They still upheld it. The dissent called it 'legalized racism.' I supose the point of view of the majority could be summed in a short paragraph from that case:

    "In [upholding the internment], we are not unmindful of the hardships imposed by it upon a large group of American citizens.... But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direct emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger."

  10. Jeff:

    I should also add that in both Korematsu and the case preceeding it (can't recall the name), I think the undercurrent of the opinion by the Supreme Court was that the Court was not willing to step in an second-guess the judgment of the military, the President, and the Congress as to what was necessary in a time of war. They basically deferred to the judgment of the other two branches.

  11. New geneva ruling means jackshit, custody is the issue... Pentagon or DoD?

  12. DoD, best I can tell. This came from USec Gordon, not Pace.

  13. Mus, thanks for the info. Much appreciated.