King Bush rebuked by Supreme Court

“I, my Lords, embody the Law.”
--“Iolanthe” by W.S. Gilbert

The Supreme Court has grown even more reactionary with the replacement of Sandra Day O’Connor by Samuel Alito. But even such a retrograde court refuses to let President Bush make the law.
The court recently struck down military commissions established by Bush to try prisoners at Guantánamo. It ruled that the tribunals were unauthorized by Congress and violated international law.
“The executive is bound to comply with the rule of law,” Justice Stevens wrote in a 5-3 plurality decision. He said military tribunals do not afford “all the judicial guarantees that are recognized as indispensable for civilized peoples.” These guarantees include prohibition of coerced testimony, torture, beatings, sexual assault and religious humiliation.
Stevens quoted James Madison, father of the Constitution, approvingly: “The accumulation of all powers, legislative, executive and judiciary, in the same hands…may justly be pronounced the very definition of tyranny.”
At Guantánamo you have such travesties of justice as: no legal counsel; testimony without oath; hearsay evidence; defendants excluded from hearings; and unsworn testimony. Above all, prisoners are held indefinitely, without charges and without trial.
Star Chamber proceedings in the 21st century.
Precedent for the tribunal ruling comes from some of the wisest opinions ever written by Supreme Court justices. Namely:
• Chief Justice John Marshall, presiding at the treason trial of Aaron Burr in 1807, ruled that the president, unlike the king of England, is not above the law.
• Justice Frank Murphy, dissenting in In Re Yamashita (1946): “We live under the Constitution, which is the embodiment of all the high hopes and aspirations of the new world. And it is applicable in war and peace.”
• Justice Robert Jackson, concurring in a court decision to block an attempt by President Truman to seize the steel mills in 1952, said the president acted unconstitutionally because Congress had refused to authorize the seizure. The court ruled 6-3 against Truman.
• Chief Justice Warren Burger, writing for a unanimous court in the Nixon tapes case (1974), cited the nation’s “historic commitment to a rule of law.” He quoted Marshall in Marbury v. Madison (1803): “ ‘it is emphatically the province and duty of the judicial department to say what the law is.’ ”
The historic Hamdan tribunal decision was a sharp rebuke to Bush, a denunciation of a kangaroo court and usurpation of power.
The Bush administration is riddled with other above-the-law practices: illegal wiretapping of Americans by the National Security Agency; kidnappings to send captives to abroad for torture; and bill-signing statements to interpret the law as Bush defines it.
The administration goes its own nefarious way, the public and Congress be damned. A year ago the Senate voted, 90-9, to ban “cruel, inhumane and degrading treatment of prisoners.” (Vice President Cheney objected strenuously. Presumably he favors summary execution.) But the Senate vote had no effect on an administration run amok.
In dissent, the rebarbative Justice Thomas said the Hamdan ruling “flouts our well-established duty to respect the executive judgment in matters of military operation and foreign affairs.”
Thomas woefully misplaces his trust. Bush is unworthy of trust. Justices have no duty to obey a lying president. It is not traitorous to disagree with a president acting like a king.
Another rebarative justice is Scalia. In dissent, he dismissed as crazy the notion that military detainees are entitled to a “full jury trial.” He scoffs at the idea that the Geneva Conventions apply to those held at Guantánimo. He despises thinking by foreign jurists even though America is increasingly out of step with international law.
Scalia uttered prejudicial comments before the Hamdan case was argued but refused to recuse himself. He is an “original intent” interpretator of the Constitution who has no truck with the dictum of Justice Holmes that the law must respond to the “felt necessities” of the day. (Oh, and Scalia says U.S. institutions come from God.)
The dissenters are rubber-stamping anything Bush does even if it is autocratic, monarchial, plenary and unitary.
Every high school student learns about the checks and balances in the U.S. political process. How the Congress passes bills, the president vetoes bills, how vetoes can be overridden and the Supreme Court determines constitutionality.
But Bush has made it clear that checks and balance are for textbooks. The law is what he says it is.