Why the Court Said No

1.

Since the first few days after the terrorist attacks of September 11, 2001, the Bush administration has taken the view that the President has unilateral, unchecked authority to wage a war, not only against those who attacked us on that day, but against all terrorist organizations of potentially global reach. The administration claims that the President’s role as commander in chief of the armed forces grants him exclusive authority to select “the means and methods of engaging the enemy.”1 And it has interpreted that power in turn to permit the President to take actions many consider illegal. 

The Justice Department has maintained that the President can order torture, notwithstanding a criminal statute and an international treaty prohibiting torture under all circumstances. President Bush has authorized the National Security Agency to conduct warrantless wiretapping of American citizens, despite a comprehensive statute that makes such surveillance a crime. He has approved the “disappearance” of al-Qaeda suspects into secret prisons where they are interrogated with tactics that include waterboarding, in which the prisoner is strapped down and made to believe he will drown. He has asserted the right to imprison indefinitely, without hearings, anyone he considers an “enemy combatant,” and to try such persons for war crimes in ad hoc military tribunals lacking such essential safeguards as independent judges and the right of the accused to confront the evidence against him.

In advocating these positions, which I will collectively call “the Bush doctrine,” the administration has brushed aside legal objections as mere hindrances to the ultimate goal of keeping Americans safe. It has argued that domestic criminal and constitutional law are of little concern because the President’s powers as commander in chief override all such laws; that the Geneva Conventions, a set of international treaties that regulate the treatment of prisoners during war, simply do not apply to the conflict with al-Qaeda; and more broadly still, that the President has unilateral authority to defy international law.2 In short, there is little to distinguish the current administration’s view from that famously espoused by President Richard Nixon when asked to justify his authorization of illegal, warrantless wiretapping of Americans during the Vietnam War: “When the President does it, that means that it is not illegal.”

If another nation’s leader adopted such positions, the United States would be quick to condemn him or her for violating fundamental tenets of the rule of law, human rights, and the separation of powers. But President Bush has largely gotten away with it, at least at home, for at least three reasons. His party holds a decisive majority in Congress, making effective political checks by that branch highly unlikely. The Democratic Party has shied away from directly challenging the President for fear that it will be viewed as soft on terrorism. And the American public has for the most part offered only muted objections.

These realities make the Supreme Court’s decision in Hamdan v. Rumsfeld, issued on the last day of its 2005– 2006 term, in equal…


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