A Setback for the State of Exception By Scott Horton

Dandelion Salad

By Scott Horton
06/14/08 “Harpers

For the dwindling but stout-hearted band of Bush loyalists, the creation of concentration camps and introduction of torture techniques never presented much of a problem—morally or legally. On the legal side, they reasoned, the president exercised commander-in-chief powers, and in wartime that let him do pretty much whatever he wanted. There were some limits, of course. One might be that his freedom of action had to be outside of the United States. Another that it couldn’t involve U.S. citizens. But with those two points resolved, Torquemada had better get out of the way.

For the critics, that was never right. The president was an actor in a constitutional system, they argued. He was constrained by the law, for that limitation—rule by law and not by a king—was the essence of the nation’s self-identification. In times of war, the constraints were certainly relaxed, but that didn’t mean there were no constraints.

Yesterday, the Supreme Court, in a 5-4 ruling, delivered a sweeping decision which rebukes the Bush Administration over its expansive views of wartime executive powers. In Boumediene and a series of companion cases, the Court was asked to decide whether the ultimate guarantor of the rule of law—the writ of habeas corpus–was available to persons in detention in Guantánamo. In the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, Congress had stripped the Great Writ. Congress did not do so explicitly, through the specific mechanism envisioned in the Constitution. Rather, it took a backdoor approach, providing a highly qualified and limited right of appeal as a substitute for habeas corpus. The Supreme Court’s majority found this to be unconstitutional.

The ruling was a resounding defeat, the third in succession (after the rulings in Rasul and Hamdan) for the Bush Administration’s war powers claims.


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