The Constitution Is Still Alive

Rejoice. Ring the bells in the Cathedrals. The Supreme Court has begun the process of returning our great nation to one which the founders would have recognized, a country that is not ruled by an omnipotent king, but by a President who must follow our Constitution, laws and Treaties. In Hamdan v. Rumsfeld, a long awaited decision regarding the fate of a Guantanamo detainee, the Court has made clear that the President does not have unlimited powers. It was a 5-3 decision with many concurring and dissenting opinions. Justice Roberts did not participate because it was his D.C. Circuit Court's opinion that was overturned.

There are many noteworthy aspect to this decision, which I am still digesting. Among other things, the Court held that the Authorization for the Use of Military Force (AUMF) did not override existing legal requirements, particularly the Uniform Code of Military Justice and the Geneva Conventions, regarding the establishment and conduct of military commissions. The Court also ruled that the Geneva Conventions apply to persons detained in the Afghan conflict.

Both of these rulings could have much wider implications. The AUMF is one of two arguments used by the President to justify bypassing the Foreign Intelligence Surveillance Act (FISA) warrant requirements in connection with domestic electronic surveillance. The President has argued that FISA can be ignored if another law provides authority for wiretapping and that AUMF provides that separate authority. Hamdan casts serious, but not absolute, doubt on that argument. While there are some other issues involved, there is good reason to think that if AUMF doesn't provide a separate statutory authority to try enemy prisoners it doesn't provide statutory authority to wiretap. That leaves only the President's second argument, that the Commander in Chief authority gives him uncontrollable and unreviewable authority to do whatever he deems necessary in furtherance of that authority. That argument also took a big hit.

The same two legal arguments undergird the President's torture policies and practices and are similarly in jeopardy.

Hamdan could well mean that the Administration's torture policies and practices are not only illegal but also criminal and that the extra-judicial wiretapping outside of the FISA Court is similarly illegal and criminal.