It's actually pretty hard for me to get too worked up over Thursday's Supreme Court decision in Hamdan v. United States - which rejected the administration's claim that Hamdan (and other Gitmo detainees) can be tried by ad hoc military "commissions" - even though pundits all over the land are claiming this is a "smashing blow" to this administration's claims to unchecked executive power; I'm thinking about Andrew Jackson's actions after Cherokee Nation v. Georgia.
You will recall that this was the case that had the Supreme Court ruling in favor of the Cherokees (after gold was discovered on their land in Georgia, and Georgia claimed eminent domain), and prompted Jackson to say, "John Marshall has made his decision, now let him enforce it."
As we all know, the Court could not enforce it, and the result was the infamous Trail of Tears.
Still, the Court (with a 5-3 majority, Roberts recusing himself) struck at the very heart of this administration's arguments that the President has unlimited war powers.
Whether or not the President has independentBear in mind, though, that this president has a long history of simply ignoring things he doesn't like to hear.
power, absent congressional authorization, to
convene military commissions, he may not
disregard limitations that Congress has, in proper
exercise of its own war powers, placed on his
Military Commission Order No. 1 . . . exceeds limits
that certain statutes, duly-enacted by Congress
have placed on the President's authority to convene
military courts. This is not a case, then, where the
Executive can assert some unilateral authority to
fill a void left by congressional inaction. It is a case
where Congress, in the proper exercise of its
powers as an independent branch of government,
and as part of a long tradition of legislative
involvement in matters of military justice, has
considered the subject of military tribunals and set
limits on the President's authority. Where a statute
provides conditions for the exercise of
governmental power, its requirements are the
result of a deliberative and reflective process
engaging both of the political branches. Respect for
laws derived from the customary operation of the
Executive and Legislative Branches gives some
assurance of stability in time of crisis. The
Constitution is best preserved by reliance on
standards tested over time and insulated from
the pressures of the moment.
Congressional Republicans are already gearing up to enact legislation actually changing the rules of the UCMJ (or possibly rejecting the Geneva Conventions) to allow military commissions at Gitmo (and elseware), but the Supreme Court has firmly set the boundaries of presidential powers: this president is not above the law after all, no matter what Yoo or Addington have claimed.
There may be joy down the road, one hopes, as this is a binding decision that will have ramifications in the FISA controversy and the so-called "signing statements," as Glenn Greenwald has so eloquently pointed out.