I'm in the middle of reading the 5-3 Supreme Court decision blowing away the White House's argument for extra-legal military trials. The Washington Post gives an overview of the Hamdan v. Rumsfeld decision written by Justice Stevens. It essentially supports District Judge Floyd's stinging decision in March 2005.
Jurist has a round-up as well that they are updating. One may recall that the oral argument didn't go well for the Solicitor General.
The full decision is up at FindLaw, already.
I haven't finished it, but this sentence stands out.
The military commission at issue is not expressly authorized by any congressional Act. Quirin held that Congress had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law of war.
It clearly and simply repudiates all of the administration's attempts to read into Article II the plenary authority to try, convict, and kill people. Commander-in-Chief authority is one thing; being above the law is quite another. In fact, the Supreme Court essentially calls "Bullshit!" on President Bush:
Contrary to the Government's assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions--with the express condition that he and those under his command comply with the law of war . . . . Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President's war powers . . . and that those powers include authority to convene military commissions in appropriate circumstances . . . 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.
After the second inauguration, I wrote a long screed that included a similar reading of Ex Parte Quirin in a critique of the Bush Administration's inherent powers rhetoric:
The pseudo-judicial authority of the president over combatants--i.e., the Guantanamo trials--is one product of this attitude. Much has been made of Ex Parte Quirin, for instance, which supposedly legitimated the president's military trials of terrorist suspects. That ignores, however, Congress' express authority in Article I, section 8, clauses 10 & 11 of the Constitution to authorize a President to conduct such trials, which is what that decision hinged on. There is nothing presidentially inherent about it; it is an express power of Congress.
It is time that Congress asserts its own war powers, and establishes a legal framework to deal with GWOT prisoners. There is no reason that a robust, effective fight against terrorism has to be done outside of the Constitution. Let's give the Framers a little more credit. Previously, I wrote last July:
The president has resisted any effort to bring the conduct of war under Congress' purview, even the domestic capture of an American citizen by civilian authorities. This means there are gaping legal holes in the American system in the absence of legislation clarifying when and how captured enemies can be held. That's my beef. Pass a law permitting the president to detain indefinitely American members of al-Qaeda. Subject it to Congressional review or even some kind of quasi-judicial mechanism. But this argument for absolute presidential war power authority is bogus and the judiciary is right to blow it out of the water.
So what to do, given Congress's apparent duty in time of war? Targeted suspension of habeas corpus is appropriate, with some framework for a trial, but that it is a congressional perogative, not an executive one. It is one held by the Congress, and can only be expressly delegated. In doing so, Congress can build in conditions that assures this grasping president doesn't blow it.


























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