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The '06 Stakes Just Got Raised

By Robert Parry
June 30, 2006

The narrow margin of the U.S. Supreme Court’s rebuke to George W. Bush on military tribunals highlights the stakes on the table for the November 2006 congressional elections – nothing short of the survival of a meaningful constitutional system in the United States.

The majority opinion, which stopped Bush from proceeding with a kangaroo court that stripped Guantanamo Bay detainees of basic legal protections and mocked the Geneva Conventions, carried a profound secondary message – that the Court was not prepared to endorse Bush’s vision of his “war powers” as limitless and beyond challenge.

But it was equally noteworthy that only five of the nine justices believed that the rule of law and constitutional limits on Bush’s powers should prevail. Four justices – Antonin Scalia, Clarence Thomas, Samuel Alito and John Roberts – have made clear that they are prepared to rubber-stamp any judgment that Bush makes.

In dissenting opinions on the tribunal case, Scalia, Thomas and Alito embraced legal arguments that bowed before Bush’s imperial presidency. Chief Justice Roberts would surely have joined them, except that he had already ruled in Bush’s favor in the case while sitting on the U.S. Appeals Court and thus was forced to recuse himself.

The one-vote fragility of the Supreme Court’s embrace of constitutional principles over one-man rule was further underscored by the fact that the landmark ruling was written by Justice John Paul Stevens, a decorated World War II veteran who is now 86. Another justice, Ruth Bader Ginsburg, is known to have battled health problems.

It is a strong possibility that if the Republicans retain control of the U.S. Congress in the November 2006 elections, Bush will get to fill at least one more Supreme Court vacancy with the likes of Scalia, Thomas, Alito and Roberts. Then, the court’s majority will flip in the opposite direction, granting Bush the authoritarian powers he so covets.

Even now, the court balance is being maintained by the swing vote of Republican Anthony Kennedy, the author of the infamous Bush v. Gore decision in December 2000 that prevented a full counting of votes in Florida and handed Bush the presidency.

But, at least in the near term, the Court’s ruling means that Bush will be forced to negotiate with Congress over creating new standards for the tribunals that will try some of the 450 detainees now held by the United States at Guantanamo Bay, Cuba.

Rebuffing Bush

In that ruling on June 29, the Supreme Court majority rejected Bush’s long-held contention that the Geneva Conventions do not apply to detainees in the “war on terror.” The justices also repudiated Bush’s tribunal rules that allowed a defendant to be excluded from his own trial and permitted hearsay evidence, unsworn testimony and evidence secured through coercive means.

“The Executive is bound to comply with the rule of law that prevails in this jurisdiction,” Stevens wrote in the majority opinion.

“The Court’s conclusion ultimately rests upon a single ground,” added Justice Stephen Breyer. “Congress has not issued the Executive a blank check.”

Implicitly the Court’s slim majority was saying, too, that the Constitution does not countenance the notion that the President as Commander in Chief can assert “plenary” – or unlimited – powers indefinitely, any way he sees fit.

Since the 9/11 terror attacks, Bush has maintained that he possesses virtually all the legal power of the U.S. government; that he can decide which laws will be enforced and which ones ignored; that he can take the nation to war without congressional consent; that he can order torture and assassination; and that he gets to parcel out constitutional protections to Americans, overriding such guarantees as the habeas corpus right to a fair trial and the Fourth Amendment ban on unreasonable searches and seizures.

By asserting that the “war on terror” exists everywhere, Bush has claimed powers that know no bounds and no boundaries, reaching from the farthest corners of the earth to the corner of Main Street and Elm.

In effect, Bush has negated the fundamental American concept of “unalienable rights,” heralded by the Declaration of Independence and enshrined in the U.S. Constitution and the Bill of Rights.

Today, under Bush’s legal theories, Americans have rights only at his forbearance. Bush’s vision of his unlimited powers also would obliterate the constitutional “checks and balances” by subordinating the Legislature and Judiciary to the Executive.

Bush implemented these radical changes to the American political system by combining what his legal advisers call the “plenary” powers of the Commander in Chief with the concept of a “unitary executive” in control of all laws and regulations.

One of the legal theorists who developed these concepts of an all-powerful Executive was Samuel Alito, who became Bush’s second appointee to the Supreme Court, after Chief Justice Roberts.

Rights As ‘History’

Yet, maybe because Bush’s assertion of power has been so extraordinary, almost no one has dared connect the dots. After a 230-year run, the “unalienable rights” – as enunciated by Thomas Jefferson, James Madison and the other Founders – were history.

The Justice Department spelled out Bush’s rationale for his powers on Jan. 19, 2006, in a 42-page legal analysis defending Bush’s right to wiretap Americans without a warrant.

Bush’s lawyers said the congressional authorization to use force against the perpetrators of the Sept. 11, 2001, terrorist attacks “places the President at the zenith of his powers” and lets him use that authority domestically as well as overseas. [NYT, Jan. 20, 2006]

According to the analysis, the “zenith of his powers” allows Bush to override both the requirements of the Fourth Amendment, which protects against searches and seizures without court orders, and the 1978 Foreign Intelligence Surveillance Act, which created a special secret court to approve spying warrants inside the United States.

In its legal analysis, the Justice Department added, “The President has made clear that he will exercise all authority available to him, consistent with the Constitution, to protect the people of the United States.”

While the phrase “consistent with the Constitution” sounded reassuring to many Americans, what it meant in this case was that Bush believes he has unlimited powers as Commander in Chief to do whatever he deems necessary in the “war on terror.”

Yet, since the “war on terror” is a vague concept – unlike other wars fought by the United States – there also is no expectation that Bush’s usurpation of traditional American freedoms is just a short-term necessity. Instead it is a framework for future governance.

It was this historic and unprecedented assertion of presidential power that was the real backdrop for the Supreme Court’s ruling in the case of Guantanamo detainee Salim Ahmed Hamdan, who was accused of conspiracy because of his alleged work as a driver for al-Qaeda leader Osama bin Laden.

In demanding reasonable legal safeguards for Hamdan and other Guantanamo detainees, the Supreme Court majority also was declaring that Bush’s powers are not without limit. The Court was asserting that other human beings who share the planet with Bush have rights, too.

Election 2006, however, may well decide whether the future of the United States will be as a nation of laws with citizens who continue to possess “unalienable rights” – or whether Bush becomes a modern-day king and all other Americans become his subjects.


Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'

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