Thursday, June 29, 2006

Gitmo No Mo'

I'm surprised that the Con Law jocks on both sides of the spectrum have been quiet about today's Supreme Court decision in the Gitmo case, Hamdan v. Rumsfeld. It's likely due to a busy Thursday more than anything else. I'm probably not the best attorney around here to analyze the decision. I have no plans to read it either. I wasn't partial to Con Law and I'm especially put off by the dreaded words "separation of powers." However, I thought I'd a quick post would be in order in case anybody out there cared to comment.

The Court's 5-3 decision essentially prevented the President's from moving ahead with military war crimes trials for the prisoners held at Guantanamo Bay without either the specific authorization of Congress or by using a recognized form of our judicial process, such as a military court-martial type trial or the ordinary criminal justice system.

I'm mixed about the effects of this decision. This is one area of the "war on terror" where I still tend to agree with the President. I believe most of these characters were rounded up in Afghanistan - such as the appellant in this case, Salim Ahmed Hamdan, a former personal bodyguard for Osama Bin Laden. As such, I think a better case can be made here for the need for some sort of extra-legal war crimes tribunals.

Yet, I also feel that this is another instance where the President's merger of the "war on terror" into the "war in Iraq" and more has muddied the issue and lost momentum for the good fight. Although there were six separate opinions, Justice Breyer probably summed it up well in his concurrence by saying: "Congress has not issued the executive a blank check."

I may still have sided with the dissent in this case myself. I dunno. But I think there's something to be said for the separation of powers issue. I do admire the manner in which Justice Thomas marked the importance of the verdict by breaking his tradition of being low-keyed and orally delivering his dissent from the bench. But I think the Court's decision is a reflection of general frustration with the Bush administration trying to roll everything into the "war on terror." Afterall, the Court had already rebuffed the administration when it denied these same prisoners access to counsel two years ago. I just don't think Congress voted for all that (nor for actions like warrantless monitoring of phone calls) when it authorized military action in Afghanistan or Iraq. Whether they're looking at intent, precedent, or text, the Court clearly thinks the president has gone too far and many Americans agree.

My final thought. Bush recently said, "I'd like to close Guantanamo." Well I say, do it. It'll send a good message to the rest of the world that our military and our legal system can handle the fight on terrorism. We don't need to go out-of-bounds - literally and figuratively - to fight al Quada. Because if we do, then we've lost much more than even those tragic lives lost on September 11, 2001.


<< Home

This page is powered by Blogger. Isn't yours?