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Mommy! The SCOTUS Spanked Me!

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Peter Baker and Michael Abromovitz have a great article in the WaPo this morning regarding the Hamdan decision and its implications for the Bush Administration. 

For five years, President Bush waged war as he saw fit. If intelligence officers needed to eavesdrop on overseas telephone calls without warrants, he authorized it. If the military wanted to hold terrorism suspects without trial, he let it.

Now the Supreme Court has struck at the core of his presidency and dismissed the notion that the president alone can determine how to defend the country. In rejecting Bush’s military tribunals for terrorism suspects, the high court ruled that even a wartime commander in chief must govern within constitutional confines significantly tighter than this president has believed appropriate.

For many in Washington, the decision echoed not simply as a matter of law but as a rebuke of a governing philosophy of a leader who at repeated turns has operated on the principle that it is better to act than to ask permission. This ethos is why many supporters find Bush an inspiring leader, and why many critics in this country and abroad react so viscerally against him.

The article quotes Lindsey "Huckleberry" Graham (in full-on "I’m not a partisan, just a good American lawyer" mode) as saying that after the Hamdan decision, there can be no argument that the rule of law and the separation of powers issues are important — essentially rebuffing the unitary executive theories of Dick Cheney, David Addington and crew.

"There is a strain of legal reasoning in this administration that believes in a time of war the other two branches have a diminished role or no role," Sen. Lindsey O. Graham (R-S.C.), who has resisted the administration’s philosophy, said in an interview. "It’s sincere, it’s heartfelt, but after today, it’s wrong."

I’ll believe Graham means it when the Judiciary Committee hearings on Guantanamo occur and he doesn’t try to shiv all the Democrats on the Committee with his Hayseed and Brimstone act.

The article provides a pretty good snapshot on why the GOP rolled out Kate O’Beirne on Hardball yesterday to start spewing talking points about the SCOTUS and the Democrats wanting to unleash terrorists on the world — it’s because no one is buying it any longer, and because the SCOTUS had the balls to call Bushie’s bluff that the WH is now in panic pushback mode.  The Administration is, of course, taking the "hands off" approach to testing the criticism waters, putting the President out to make innocuous statements about respecting the Court, all the while GOP surrogates hit the airwaves vilifying Justice Stevens’ opinion and anyone who would dare step out and criticize the President’s policies.

But the SCOTUS has pulled the curtain back with this opinion, and has shown the shoddy legal reasoning of the Administration for what it is — a hollow prop used to justify egregious power grabs and actions in the name of this nation that no one outside a time of immediate, desperate fear and threat would ever condone.  And once that curtain is pulled back…well, you can’t make the snake oil salesman look like the Great and Powerful Oz any longer, can you?

Bruce Fein, an official in the Reagan administration, said the ruling restores balance in government. "What this decision says is, ‘No, Mr. President, you can be bound by treaties and statutes,’ " he said. " ‘If you need to have these changed, you can go to Congress.’ This idea of a coronated president instead of an inaugurated president has been dealt a sharp rebuke."…

As described by the New Yorker this week, the executive order establishing military commissions was issued without consultations with then-Secretary of State Colin L. Powell or then-national security adviser Condoleezza Rice after a concerted push by Cheney’s legal adviser, David S. Addington, now his chief of staff.

"Rather than push so many extreme arguments about the president’s commander-in-chief powers, the Bush administration would have been better served to work something out with Congress sooner rather than later — I mean 2002, rather than 2006," said A. John Radsan, a former CIA lawyer who now teaches at William Mitchell College of Law.

The administration relied on the same expansive view of its power in detaining U.S. citizens indefinitely as enemy combatants, denying prisoners access to lawyers or courts, rejecting the applicability of the Geneva Conventions in some instances, employing harsh interrogation techniques and establishing secret CIA prisons for terrorism suspects in foreign countries. Only its telephone and e-mail surveillance program, which is operated by the National Security Agency, stirred much protest in Congress.

The administration often fended off criticism by arguing that the commander in chief should not be second-guessed. "The Bush administration has been very successful in defining the debate as one of patriotism or cowardice," said Andrew Rudalevige, author of "The New Imperial Presidency" and a Dickinson College professor. "And this is not about that. This is about whether in fighting the war we’re true to our constitutional values."

In some ways, the ruling replicates a pattern in American history where presidents have acted aggressively in wartime, only to be reined in by courts or Congress. Even some Bush supporters said yesterday that it may be appropriate now to revisit decisions made ad hoc in a crisis atmosphere, when a president’s natural instinct is to do whatever he thinks necessary to guard the nation against attack.

"That’s what presidents do, and I say thank goodness for that," said George J. Terwilliger III, deputy attorney general under President George H.W. Bush. "But once you get past that point . . . both as a matter of law and a matter of culture, a more systemic approach to the use of authority is appropriate."

There are some questions that need to be raised about the Bush Presidency, beginning with one as to why George Bush continually allows Dick Cheney, David Addington and the neocon cabal to do his thinking for him or, if he’s not doing so, why is he continually shutting out contrarian opinions when they matter most?

Hamdan has opened to door to asking a LOT of questions.  Not least of which is what else is the President hiding — and what else has he been doing in our name?  It’s about time the Congress started demanding answers.  The SCOTUS has opened the door — who in Congress will be brave enough to walk through it, into the light?

(I’ve got the New Yorker article about Cheney and Addington in my "to read" pile, and hope to get to it this weekend.  More to come on Hamdan…)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com

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