By saying no to military tribunals at Guantánamo, the Supreme Court has clipped United States President George Bush’s wings after he sought to assert his authority in the name of security following the attacks of September 11 2001.
The court’s ruling last Thursday ”marked the end of the national security ‘state of emergency’ that has prevailed for nearly five years”, commentator David Ignatius wrote in The Washington Post.
”We can now see that after September 11 there was a grab for unlimited executive power, led by Vice-President [Dick] Cheney and his lawyer, David Addington,” Ignatius said.
”They intimidated or ignored critics within the White House and created a secret system unchecked by the other two branches of government.”
The landmark five-to-three decision held the administration violated the Geneva Conventions and the US military code of justice by setting up military tribunals, or commissions, to try detainees held at a US naval base in Guantánamo Bay, Cuba.
The ruling ”showed that even the president must yield to the rule of law,” said Jonothan Turley, a law professor at George Washington University.
The Guantánamo case ”has more to do with the president’s attempt to redefine the Presidency than it does to military commissions themselves,” Turley said.
But Bush’s supporters in the Republican Party dismissed suggestions that Bush had suffered a major defeat.
”This was not the major rebuff that some of the headlines heralded in this morning’s papers,” Senator John Cornyn told Fox News in the decision’s wake.
He said Congress could legalise the military tribunals by simply approving the rules set out for them by the US administration.
”All we have to do, or what we might do, is take the rules that the Pentagon has issued already and pass a law saying that we adopt those same military tribunal rules,” Cornyn said.
The Supreme Court initially cast doubt on Bush’s approach in a June 2004 decision, called Hamdi vs Rumsfeld, which ruled that a court cannot hold a US citizen captive without due process or without the possibility to challenge their detention before an impartial judge.
Previous US presidents also have clashed with the courts and lawmakers over the extent of their executive power, particularly in the 1970s.
In 1973, Congress reacted angrily to the way presidents Lyndon Johnson and Richard Nixon were waging the Vietnam campaign by passing a law making it illegal for the president to start wars without winning congressional support within 90 days of having sent troops into combat.
Some American commentators say that Cheney, with his significant influence within the administration, has pursued a broader battle to regain executive authority that he believes the Presidency lost following the 1974 Watergate scandal.
In its latest issue, The New Yorker magazine published a detailed portrait of Cheney’s legal adviser David Addington, who ”has played a central role in shaping the administration’s legal strategy for the war on terror”.
This strategy would allow the commander-in-chief to sidestep rules that ban torture, secret detentions, and paralegal hearings, in the name of national security, the magazine said.
Citing the ”war on terror,” US security services could justify holding suspected Islamic militants in detention limbo, and carry out secretive but broad phone-tapping operations of calls between foreigners and Americans, the magazine wrote.
But the high court’s ruling has cast doubt on Bush’s robust assertion of presidential power, which has shaped American politics since September 11.
Turley said the Guantánamo case ”is responsible for checking the authority of the president”. — AFP
