Bush Will Seek Congressional Approval For Tribunal Trials
President Bush appears to be taking an ‘out’ provided by the Supreme Court regarding war crimes trials of Gitmo detainees:
After a Supreme Court decision overruling war crimes trials for Guantanamo Bay detainees, President Bush suggested Thursday he would seek Congress’ approval to proceed with trying terrorism suspects before military tribunals.
“To the extent that there is latitude to work with the Congress to determine whether or not the military tribunals will be an avenue in which to give people their day in court, we will do so,” he said. “The American people need to know that the ruling, as I understand it, won’t cause killers to be put out on the street.”
Bush said little more, saying he had received only a “drive-by briefing” on the ruling just out earlier Thursday morning.
The Supreme Court decided that Bush’s proposed trials for certain detainees at the controversial U.S. prison in Cuba were illegal under U.S. law and international Geneva conventions. A separate opinion, written by Justice Stephen Breyer, appeared to invite Bush to go to Congress to seek the authority to change that, and Bush’s short answer indicated that is his intention.
Sounds sensible to me; I don’t view this as a huge defeat for the Administration; the Supreme Court certainly has a role to fulfill in these gray areas, and this is exactly what I hope will ultimately happen to the NSA program, as well (i.e., a Supreme Court decision to take away the cloud that hangs over the program)…
I’ll make the early guess on the break of the public sentiment:
If asked if Al-Queda deserves the protection under the law shared by every American citizen, and is not a military matter-
65 no, 35 yes.
The supreme court just handed the gop the 2006 election. If there was any doubt, the Pelosi statement sealed the deal.
Mark, I suspect you’re right that Congress will now pass authorizing legislation allowing the tribunals to go forward.
But the larger story is has nothing to do with Guantanamo or the military tribunals. This opinion is a stinging rebuke to the Yoo theory of executive power that the administration has been advocating for the last 4 years. The court held definitively that a congressional statute trumps the president’s authority even on war powers issues like this one. That’s huge. If a congressional statute trumps the president’s power under the AUMF and article II when it comes to trying foriegn enemy combatants on foreign soil, then FISA also surely trumps the president’s power with respect to surveillance of U.S. citizens in the U.S.
This opinion utterly destroys the Bush administration’s AUMF argument, and the Court disposed of the article II argument in a single footnote (#23). David Addington is probably having an aneurysm.
Anon Lib,
I do understand you regarding the theory of the “Unitary Executive”; the three branches were always meant be be equal to one another.
But please tell me, what on Earth is the check available to the Executive and Legislative branches to limit the power of the Judiciary in today’s world? If the branches are co-equal, there has to be one. Please tell me from your liberal viewpoint what check is availabe/acceptable to the Executive anf Legislative branches to limit the power of the SCOTUS?
Well, you know, Anonymous, I never was a huge fan of the AUMF arguement to begin with…it always was a bit weak…
a 5-3 decision to ‘mend it, not end it’ does not make it a stinging rebuke.
That is reserved for at least a 7-2 vote, but preferably a 9-0.
Unless Bush v. Gore was actually a stinging rebuke, it was 6-3 to stop counting. It also ended the matter, unlike this current ruling.
The SC giving basically sent it back to congress, as opposed to handing it back to a lower court. Can’t wait to see it in use on the campaign trail.
a 5-3 decision to ‘mend it, not end it’ does not make it a stinging rebuke
Yes it does, because the Court held it was Congress’ job to “mend it”, not the president’s. That’s a big blow to the Cheney/Addington/Woo worldview. Second, though the decision was 5-3, Alito and Scalia dissented on grounds having nothing to do with the basic holding regarding executive power. Alito agreed that the UCMJ controlled, but interpreted it differently. Scalia thought the DTA stripped the Court of jurisdiction. Only Thomas even attempted to argue that the UCMJ was not a binding authority. In other words, on the issue of executive power, this opinion was essentially 7-1.
Finally, with respect to Kavron’s question, I don’t see this as the Court over-reaching. The Court essentially punted to Congress. The holding was that Congressional statutes are the law of the land, so if we want to change the rules, it’s up to Congress and the president to do it through new legislation. And that’s exactly what will happen. Congress will pass some sort of law very soon, I suspect.
This was a very shrewd and important ruling. It restored the proper separation of powers. It will lead to a negotation process that brings all the president’s extra-legal programs within the law, as they should be.
If it were to be a loss, it would be the first loss.
It came down to procedure, not policy. Nice conspiracy theory-”Cheney/Addington/Woo worldview”, but they have about two and half years left to consolidate their power. Unless they have a successor, but they don’t.
A stinging rebuke of policy? I do agree with the principle that there must be an established method of dealing with the detainees-lacking a current one-the SC chose to point to current written standards used for warfare.(I would have have ruled with the majority, for what it is worth.) They basically told the WH-you can do what ever you want, but only if you can convince congress.
Is there any restriction that you forsee congress placing on a ‘written’ WH plan for dealign with detainees? If you want to find a loss or ‘rebuke’, it will occur there.
The court had no real legsitlative guidance, so they went on what was out there, but then also offered the method for Bush to proceed-bring us something/anything with congress’ signature and we’ll give you a 9-0 vote.
At a process level I see this as a clear demonstration of the excellence of our system. To wit: the Executive branch establishes a policy that it believes is necessary to achieve an objective that derives from its Constitutional obligations (i.e.; defend the security interests of the US & its citizens); the Judicial branch reviews and rules on the legality of that policy; the Legislative branch then has the opportunity, assuming a request from the Executive branch, to propose, debate, and pass/reject new legislation to make the Executive’s desired policy legal.
Checks, balances, etc., etc. Now, the process is a bit slow, confrontational, and a lot like sausage making, but I would argue that it is effective (if not efficient).
Bush to supreme court: Can I have a dog?
SC to Bush: Go ask your mother(congress).
a ‘Stinging rebuke’ would have been:
“No…and don’t go asking your mom.”