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I like many others am breathing a sigh of relief over the Supreme Court’s Hamdan decision and feeling extreme waves of gratitude that there are people like Lt. Cmdr. Charles Swift in the world who value principle more than cynical opportunities for career advancement. 


Yesterday’s Supreme Court ruling, definitively curbing the Bush White House’s assertion of nearly unlimited executive power in a time of war, puts the other two branches of government back in business.

The Republican-controlled Congress, which has remained resolutely blind, deaf and dumb as President Bush took national security matters entirely into his own hands, now has little choice but to rouse itself to some sort of action.

And in reasserting the rule of law, the high court has opened the way to what could be major legal action over other executive branch violations of established statutes — about domestic spying, for instance. The ruling even raises the possibility that U.S. forces and Bush administration officials could be tried for war crimes.

The rousing of the legislative and judicial branches is the ultimate nightmare of the unilateralists within Bush’s inner circle, most notably Vice President Cheney and his chief of staff, David S. Addington. They had argued that nothing — not Congress, not the courts, not traditional notions of basic human rights — should limit the president from pursuing the nation’s enemies however he saw fit.

Should limit the president…as Atrios and others have noted, there is no real reason to believe that BushCo. will pay any more heed to the courts than they have any other institution designed to check their power.  It would be nice, however, to think that Congress might stop pressing the "snooze" button and get back into the oversight business.

And I hate to be one to bum everyone’s high but let’s face it, we came awfully close.  The decision was 5-3 with Roberts not participating because he had already decided in favor of the government previously.  We’re basically one vote away from a wingnut block that will insure that future decisions will not go down like this.  Remember the Alito cloture vote?  It was 75-25 , not even close.  Something happens to one of the non-sadists on the court in the next two years, do you really have any expectation that things will break any differently?  Because I certainly don’t.

Joe Lieberman did this.  Lincoln Chafee did this.  And they will do it again.  There is no excuse for a New England blue state to have a Senator enabling this shit, and yet they are.  As Stephen Poole of Crooked Timber ably demonstrates, this is the kind of fine legal scholarship we can look forward to predominating should something untoward happen in the next two years:

Alito does not challenge the finding that Geneva Common Article 3 applies; he argues instead that the special military commissions used at Guantánamo do in fact constitute what Geneva demands, a "regularly constituted court" [p177]. This is a difficult argument to make, given that Geneva’s elucidatory commentary explicitly defines "regularly constituted" courts as meaning "ordinary military courts", and explicitly excludes "all special tribunals" [p180]. Because the Guantánamo military commissions do not rise to the standard of ordinary courts martial and are used nowhere else, they are clearly the sort of "special" tribunals banned by Geneva, as the Court in fact found.

Nonetheless, Alito tries his semantic best to weasel out of the plain conclusion. He makes the risible assertion that the military commissions cannot be "special" because "special", in his mind, means "relating to a single thing", and it is proposed that lots of these military commissions be conducted for Guantánamo prisoners. So they cannot be "special" because, um, they are numerous. Hence, they must be "regular" after all [p181]. It is rather pitiful. One is driven to suppose, on this logic, that the US’s renowned Special Forces likewise consist of a single uber-soldier, like Jean-Claude Van Damme with lasers for eyes.

I’m almost afraid to breathe for fear that the Club for Growth will stop doing our job for us as they work to defeat Lincoln Chafee.  But unless some serious hurt gets put on Joe Lieberman, we’re looking at another Gang of 14 lapdance for James Dobson and the wingnuts.

You can help Ned Lamont beat out Lieberman here

(PS Here in Connecticut  I’m being told that Lieberman hates the monicker "Bush’s lapdog."  We will be ‘using Monk’s fine graphic often.)

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Jane Hamsher

Jane Hamsher

Jane is the founder of Her work has also appeared on the Huffington Post, Alternet and The American Prospect. She’s the author of the best selling book Killer Instinct and has produced such films Natural Born Killers and Permanent Midnight. She lives in Washington DC.
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