(1) Will All His Blank Checks Bounce?

The Bush administration has confidently asserted till now that the military commissions set up to try Guantanamo prisoners were perfectly legal, that the President inherently had the legal authority to set up these commissions and to place Guantanamo prisoners under their jurisdiction.

They knew it was perfectly legal because General Alberto Gonzales had declared it to be so. And General Alberto Gonzales knew it to be so because in-house lawyers had produced memos stating that it was. And in-house lawyers had produced memos stating that it was because that’s what they were told to do. And that’s what they were told to do because everyone knows it’s perfectly legal for a war President to do whatever the bleep he wants.

If eminent legal scholars and jurists were going around questioning the legality of the military commissions, they were just misguided old fools opposed to administration policies and engaging in wish fulfillment fantasies.

The important thing was to concentrate on the business at hand, the business which trumps everything else, the end which justifies any means whatsoever – protecting the American people – and bring the Guantanamo terrorists to justice without getting bogged down in unnecessary and futile political debate.

And now the Supreme Court has come along and delivered a stinging rebuke*, not just to the military commission theory but to the whole doctrine that the President has a blank check because we are at war. And given this administration’s unbelievable ability to ignore the obvious, Justice Breyer was taking no chances. He wrote a short one-page concurring opinion just to put it in so many words:

“The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check,’ Breyer wrote.

Surely, this doesn’t bode too well for other questionable policies and programs where the Bush administration has kept confidently asserting in the face of concerted criticism that everything they’re doing is all perfectly legal. Because General Alberto Gonzales had declared it to be so, etc.

For example, there are the interrogation techniques which violate the Geneva conventions and which are universally regarded as torture, but which we decided were okay to use at Guantanamo and other places. Because the Geneva conventions don’t apply. And because we decreed that these interrogation techniques don’t constitute torture, since that wouldn’t square with our self-image, and even Presidents and Vice Presidents and Defense Secretaries who practice torture need to be able to sleep at night, and be able to look themselves in the mirror in the morning. Given half a chance, will the Supreme Court call a foul here? Probably, since they’ve rejected the blank check doctrine and held that the Geneva conventions do apply to Guantanamo prisoners.

Then there’s the NSA’s warrantless wiretapping program, which General Alberto Gonzales took as a personal invitation from God to once again demonstrate his sanguinely unworldly view of legality. If you have the stomach for technical legal arguments, Glenn Greenwald argues here that today’s decision implies that the Supreme Court would almost certainly reject President Bush’s claim that the 2001 Authorization to Use Military Force implicitly authorized the President to sidestep FISA (see point 3 in his post; point 7 too, if you’re really into legalese).

(2) A Nation Of Laws, Not Men? Really?
As Jason said yesterday, I wish someone would explain why it is so vitally important that the trials of the Guantanamo prisoners are held outside the purview of the normal legal system. Why can’t we try them in the civilian courts or via courts-martial? Why is it necessary to try them only using military commissions which operate like kangaroo courts more than anything else? Or to use Justice Stevens’ eloquent words, military commissions which do not offer even “the barest of those trial protections that have been recognized by customary international law”.

Barely had the Supreme Court decision been announced when Sens. Lindsey Graham and Jon Kyl jumped up and declared that they would introduce a bill to make it all legal for the Bushwhackers to try Guantanamo prisoners using military tribunals:

“We believe the problems cited by the court can and should be fixed,” Graham and Kyl said in a joint statement. “Working together, Congress and the (Bush) administration can draft a fair, suitable and constitutionally permissible tribunal statute.”

Arlen Specter (you may remember him, he’s the one who barks a lot and then always trots over to lick Bush’s…hand) went one further and actually filed legislation late yesterday:

Late Thursday, Sen. Arlen Specter, R-Pa., filed legislation that would authorize the president to create military tribunals and would provide guidelines for the trials. The Senate Judiciary Committee, which Specter chairs, and the Senate Armed Services Committee plan hearings this summer.

Of all the hundreds of prisoners we have held at Guantanamo for years and years, we propose to try only a handful. Presumably these are the ones against whom we have strong and convincing evidence of guilt. And even in these cases we are unwilling to conduct a proper trial? A trial in which the accused have the right to be present at all proceedings. A trial in which the accused have the right to view the evidence against them. A trial in which the accused have the right to be represented by an attorney. A trial in which the accused have the right to cross-examine witnesses. A trial in which the accused have the right to appeal any verdict to a higher court.

The military commissions guarantee none of those rights, the justices said, which, they added, violates both U.S. military law and the Geneva Conventions.

So the immediate reaction of the likes of Graham, Kyl and Specter is to say let’s quickly go ahead and make it legal to violate both U.S. military law and the Geneva conventions? Why don’t we just pass a law which gives President Bush the authority to have Guantanamo prisoners taken out and shot as and when he deems it necessary? We should, of course, build some safeguards and protections into this law. Bush will first have to ritually intone before witnesses: “I do this thing in the name of the American people, to protect them from the enemy, so help me God.”

* Did the Supreme Court just walk up to the President and give him one tight slap and say “Shame on you, George W. Bush!”