Two years ago, the Bush Administration tried to persuade the Supreme Court that Guantanamo detainees had no right to challenge their detention in court, and that Americans held as “enemy combatants” in the United States had no right to challenge the government’s evidence against them. The Administration lost both cases.
Yesterday, the Administration returned to the Supreme Court to defend the system of military commissions established by President Bush in November 2001. As in 2004, the Administration argued that the case should be dismissed without even considering the legality of the military commissions. Alternatively, the Administration urged the Court to recognize the President’s authority as commander-in-chief to create a system of military commissions that fails to meet even minimal standards of fairness and impartiality.
Once again, the Administration appears to have overplayed its hand. And, once again, it received a chilly reception from the Court.
That was particularly true with regard to the jurisdictional issue, which turns on the meaning of the Detainee Treatment Act adopted by Congress after Hamdan’s appeal had already been accepted for review by the Supreme Court. Solicitor General Paul Clement got into immediate trouble when he told the Court that Congress could suspend the writ of habeas corpus without ever saying so explicitly or clearly setting forth its reasons for doing so. He did not fare much better when he argued that the President could create new war crimes without congressional authorization and then have those war crimes tried before a military commission that Congress had never specifically approved.
There is a theme here, and it is a disturbing one. By pressing its jurisdictional arguments to the limit, the Administration has tried to marginalize the courts. By stressing the President’s inherent authority as commander-in-chief, the Administration has usurped or disregarded the role of Congress on a host of critical national security issues, including torture, detention, and surveillance. In the particular context of Hamdan case, that attitude has led to a system of military commissions in which the President effectively acts as judge, jury, and executioner. More broadly, it has invited the abuse of executive power that the framers foresaw when they created the system of checks and balances that this Administration seems to view as an inconvenience rather than as a basic safeguard of our constitutional democracy.
Whatever other disagreements we may have had with the Rehnquist Court, it jealously guarded its role in the system of checks and balances, and did not react well to arguments that the war on terrorism represents a blank check for the President to do whatever he sees fit. We will shortly see if the Roberts Court takes the same approach.