Justice Clarence Thomas refers to Justice John Paul Stevens’ “unfamiliarity with the realities of warfare” in his dissenting opinion. ACSBlog notes: “Stevens served in the U.S. Navy from 1942 to 1945, during World War II. Thomas’s official bio, by contrast, contains no experience of military service.”
“We have never ever seen a case like this,” said Keith Ashdown of Taxpayers for Common Sense: The lobbying firm at the center of the House Appropriations Chairman Jerry Lewis (R-CA)/Duke Cunningham scandal failed to report fully $2 million in lobbying fees.
Web traffic is dropping at AnnCoulter.com, RushLimbaugh.com, and BillOReilly.com, but it’s rising at many progressives sites, including Raw Story, Crooks and Liars, and ThinkProgress.
Atrios vs. New Republic culture critic Lee Siegel, on whether Jon Stewart “is destroying democracy as we know it.”
“In 1999, Arkansas’ child welfare board banned gay people from becoming foster parents, arguing kids would be better off in orphanages. Four residents sued, claiming discrimination. Today, the state Supreme Court agreed.”
An SEC whistleblower “fired for trying to subpoena a politically connected Wall Street executive during an insider trading investigation was muzzled by his former agency during Congressional testimony this week.”
And finally: How to scam the “Nigerian letter” scammers by convincing them you’ll pay $150,000 for their wood carvings.
Additionally, three of his top aides are leaving or have already left, “the latest sign that Ney’s legal and ethical troubles stemming from the Jack Abramoff scandal are growing worse with each passing day.”
Appearing on Fox News this afternoon, Sen. Trent Lott (R-MS) lashed out the Supreme Court, which ruled today that the Bush administration’s military commissions were illegal. Lott said the decision was “ridiculous and outrageous” and likely had our enemies “laughing at us.” Then he admitted he hadn’t read it. Watch it:
Transcript: Read more
During today’s White House Press briefing, Tony Snow insisted that the administration has not intentionally sought to expand executive power:
QUESTION: Is this [Supreme Court decision] a setback in terms of the broader goal of this administration to expand executive authority?
SNOW: I don’t think it’s ever been the goal of the administration to expand executive authority. In a time of war, the president has tried to act in a way that meets the needs and obligations of a commander in chief against a dispersed and highly unique kind of enemy.
But we don’t have expand executive power sessions. So nobody thinks in terms of, How do we expand executive power?
Nobody except the Vice President of the United States. Here’s Cheney on 12/20/05:
I believe in a strong, robust executive authority. And I think the world we live in demands it…I think you’re right, probably the end of the next administration, you had the nadir of the modern presidency in terms of authority and legitimacy, then a number of limitations that were imposed in the aftermath of Vietnam and Watergate. But I do think that to some extent now, we’ve been able to restore the legitimate authority of the presidency.
From Day 1 of the Bush presidency, Cheney has lead a vigorous campaign to expand executive power, which he described to Bob Woodward. Today’s decision was, in fact, a setback in Cheney’s efforts.
Former 9/11 Commission member Bob Kerrey thinks so, as does Rep. Peter King (R-NY) “to some extent.”
Justice Breyer stated in today’s Hamdan opinion, “Nothing prevents the President from returning to Congress to seek the authority he believes necessary.” Reacting to Breyer, Sen. Lindsey Graham (R-SC) said on Fox, “The court is telling us that tribunals would be okay if you have the Congress’ blessing.”
President Bush seems to be quickly embracing the idea.
As I understand, a senator has already been on TV — I haven’t seen it. I haven’t heard what he said, but they briefed me and said he wants to devise law in conformity with the case that would enable us to use a military tribunal to hold these people to account. And if that’s the case, we’ll work with him.
But if Bush truly wants to devise law in conformity with the opinion, the military commissions will need to undergo significant changes. Mere congressional authorization of the military commission that the Bush administration has conceived will not be enough to pass the legal test. Today’s Supreme Court opinion makes clear that a congressionally-authorized military commission would need to comply with Geneva Conventions, particularly Common Article 3. From the opinion:
Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines “‘regularly constituted’” tribunals to include “ordinary military courts” and “definitely exclud[e] all special tribunals.
Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.
In other words, Bush’s military commissions need more than a rubber-stamp from Congress.
UPDATE: Glenn Greenwald notes that Congress could decide to abrogate the Geneva Convention or exempt its application with respect to the military commissions. It would be an extraordinary step, but with this Congress, anything is possible.
from automobiles even though Americans make up just 5% of the world’s population, according to a new report by Environmental Defense.
The impact of today’s Supreme Court decision on military commissions goes well beyond Guantanamo. The Supreme Court has ruled that the Authorization for the Use of Military Force – issued by Congress in the days after 9/11 – is not a blank check for the administration. From the syllabus:
Neither the AUMF [Authorization for the Use of Military Force] nor the DTA [Detainee Treatment Act] can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21.
The point here is that the AUMF does not authorize activity that was not specifically contemplated in the text or legislative history. This is incredibly significant. The administration is relying on the AUMF to justify its warrantless wiretapping program. Here’s Alberto Gonzales on 12/19/05:
Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.
The Bush administration doesn’t argue that warrantless wiretapping was something specifically contemplated in the text or by Congress. Rather, the administration argues that it is implied as part of a broad authorization to “use all necessary and appropriate force.”
The Supreme Court has rejected that expansive interpretation. It’s a huge blow to the administration’s legal rationale for warrantless wiretapping.
In a 5-3 decision (Chief Justice Roberts abstaining), the Supreme Court ruled that President Bush did not have authority to set up military tribunals at Guantanamo Bay, Cuba, finding the “military commissions” illegal under both military justice law and the Geneva Convention. The opinion of the Court, written by Justice John Paul Stevens, declares that “the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”
UPDATE I: The AP has more: “The ruling, a rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions.”
UPDATE II: SCOTUSBlog has the voting breakdown: “The main opinion [was] written by Justice John Paul Stevens. That opinion was supported in full by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter. Justice Anthony M. Kennedy wrote separately, in an opinion partly joined by Justices Breyer, Ginsburg and Souter…Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas, the dissenters, each wrote an opinion.” Read the opinions (pdf).
UPDATE III: From SCOTUSBlog: “The Court appears to have held that Common Article 3 of Geneva aplies to the conflict against Al Qaeda. That is the HUGE part of today’s ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons ‘shall in all circumstances be treated humanely,’ and that ‘[t]o this end,’ certain specified acts ‘are and shall remain prohibited at any time and in any place whatsoever’””including ‘cruel treatment and torture,’ and ‘outrages upon personal dignity, in particular humiliating and degrading treatment.’ This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. … This almost certainly means that the CIA’s interrogation regime is unlawful.”
UPDATE IV: “Justice Clarence Thomas wrote a strongly worded dissent and took the unusual step of reading part of it from the bench something he had never done before in his 15 years. He said the court’s decision would ‘sorely hamper the president’s ability to confront and defeat a new and deadly enemy.’” Justice Breyer responded in the opinion that Bush should consult with Congress to receive specific authority, and doing so, would strengthen the nation’s ability to deals with threats: Read more