Supreme Court finally checking Bush?

[Makkonnen]

http://www.latimes.com/news/nationw...560.story?coll=la-news-politics-supreme_court
From the Los Angeles Times
Court Appears Wary of Terror War Tribunals
Most justices seem open to a prisoner's claims that new presidential powers go too far.
By David G. Savage
Times Staff Writer

March 29, 2006

WASHINGTON — The Supreme Court gave a skeptical hearing Tuesday to the Bush administration's claim that the president has the power on his own to create and control special military tribunals to punish foreigners he deems to be war criminals.

Five of the eight justices hearing the case commented that the laws of war and the Geneva Convention set basic rules of fairness for trying alleged war criminals.

And they questioned whether the president was free to ignore those basic rules — as well as the rules of American military law.

The justices' skepticism suggested a second setback might be looming for the administration's legal strategy in the fight against terrorism. Two years ago, the high court said war — even a new kind of war on terrorism — did not give the president a "blank check" to make new legal rules for capturing and holding prisoners.

The case heard Tuesday concerned the rules for punishing these prisoners. But the tenor of the argument suggested the court would again reject President Bush's claim of unilateral power to try and punish alleged Al Qaeda conspirators.

"If you defer to this system and give the president the ability to launch all these military tribunals … you will be countenancing a huge expansion of military jurisdiction," Georgetown University law professor Neal K. Katyal told the justices.

Justice Stephen G. Breyer appeared to agree. "If the president can do this, well then he can set up a [military court] to go to Toledo and … pick up an alien and not have any trial at all," he said.

Katyal was representing Salim Ahmed Hamdan, a native of Yemen and a former driver for Osama bin Laden. Hamdan was picked up in Afghanistan in 2001, and has been held since then at the military jail for terrorism suspects at Guantanamo Bay, Cuba.

The administration, led by Defense Secretary Donald H. Rumsfeld, has charged him with being a war criminal for having conspired with Al Qaeda to kill Americans.

But the case of Hamdan vs. Rumsfeld is not a test of whether Bin Laden's driver is guilty as charged. Rather, it is a test of the president's power to act as lawmaker, prosecutor, judge and jury in the war on terrorism.

Hamdan's lawyer says he has no objection to having his client tried under the rules of courts-martial used by the U.S. military. Most lawyers say these trials are fair because the prosecutors and judges have some independence from the command structure and because the defendant can confront and challenge the evidence used against him.

The Geneva Convention says foreign prisoners of war can be tried as war criminals, but they should be tried by reputable courts with established rules of fairness.

But in November 2001, President Bush issued an order saying his administration would not follow the Geneva Convention. Instead, his order said, terrorists and captured Al Qaeda operatives would be tried in special military tribunals.

The president reserved for himself the power to define which offenses would be crimes, who would prosecute the cases, what rules would be followed and who would serve as judge and jury. And after the trial, those convicted could appeal their cases to the president.

This system is "literally unburdened by the laws, Constitution and treaties of the United States," Katyal said.

U.S. Solicitor General Paul D. Clement, representing the administration, said that ever since Gen. George Washington had a British spy tried and hanged, the "commander in chief … has exercised the authority to try enemy combatants by military commissions."

The case is complicated by the fact that in December, Congress passed a law saying the courts had no jurisdiction to hear claims from Guantanamo prisoners. Clement said Hamdan's appeal should be dismissed.

New Justice Samuel A. Alito Jr. agreed that the high court should not rule on the issue now. "In a criminal litigation, review after a final decision is the general rule," he said. If Hamdan is convicted, he could file an appeal in the federal courts, Alito added.

But most of the other justices disputed the idea that Congress could bar the Supreme Court — or any federal judge — from hearing a writ of habeas corpus from a person held in U.S. custody.

In old English law, people imprisoned by the king could file a writ of habeas corpus — a request to come before a judge. The U.S. Constitution adopted the idea and says "the writ of habeas corpus shall not be suspended [except] in cases of rebellion or invasion."

President Lincoln suspended habeas corpus during the Civil War.

Hamdan filed a writ of habeas corpus to challenge the military trials, but Clement cited the action by Congress taking away the court's authority to hear it.

"I have trouble with that argument," Justice Anthony M. Kennedy said. "The historic [writ] of habeas is to test whether or not you are being tried by a lawful tribunal."

Justice Antonin Scalia disagreed. "We don't intervene on habeas corpus…. We wait until the proceeding's terminated."

Kennedy disputed that. "If a group of people decides they're going to try somebody, we wait until that group of people finishes the trial?" he asked.

Justices David H. Souter, Ruth Bader Ginsburg and John Paul Stevens joined Breyer and Kennedy in clashing with the government's lawyer.

Chief Justice John G. Roberts Jr. was missing from the argument because he had ruled on the case while he was a U.S. appeals court judge.

If the court were to split 4-4, the government would win. But it sounded as though five of the justices were inclined to deal the administration a defeat.

 

[Greed]

Bush says he would like to close Guantanamo

Bush says he would like to close Guantanamo
By Noah Barkin
Sun May 7, 1:58 PM ET

President George W. Bush said he would like to close the U.S.-run prison at Guantanamo Bay -- a step urged by several U.S. allies -- but was awaiting a Supreme Court ruling on how suspects held there might be tried.

"Of course Guantanamo is a delicate issue for people. I would like to close the camp and put the prisoners on trial," Bush said in comments to German television to be broadcast on Sunday night. The interview was recorded last week.

Human-rights groups have accused the United States of mistreating Guantanamo detainees through cruel interrogation methods, a charge denied by the U.S. government.

They also criticize the indefinite detention of suspects captured since the military prison was opened in 2002 at the U.S. naval base in Cuba, as part of the Bush administration's war on terrorism.

Bush was asked by the German public television station ARD how the United States could restore its human-rights image following reports of prisoner abuse.

"Our top court must still rule on whether they should go before a civil or military court," he said.

"They will get their day in court. One can't say that of the people that they killed. They didn't give these people the opportunity for a fair trial."

The quotes were translated by Reuters from a German transcript.

The U.S. Supreme Court is expected to rule by the end of June on whether military tribunals of foreign terrorist suspects can proceed.

Bush's comments were a reiteration of long-standing U.S. policy, Frederick Jones, spokesman for the White House National Security Council, said in Washington.

"The United States has no intention of permanently detaining individuals, that is not our goal. We want to see all these individuals brought to justice," he said, whether in their home countries or in the United States.

Defense Secretary Donald Rumsfeld, however, has dismissed calls for the prison to be closed.

"Every once and a while someone pops up and gets some press for saying 'Oh let's close Guantanamo Bay.' Well, if someone has a better idea, I'd like to hear it," Rumsfeld said in a February speech to the Council on Foreign Relations.

The United States has 480 detainees at Guantanamo and has freed or handed over to their home governments a total of 272. The Pentagon has said it has no interest in holding anyone longer than necessary but that it has been unable to arrange for some to return to their home countries.

The Pentagon says the detainees come from 40 countries and the West Bank, with the largest number from Saudi Arabia, Afghanistan and Yemen.

In a report last week for the U.N. Committee against Torture, Amnesty International said torture and inhumane treatment were "widespread" in U.S.-run detention centers, including Guantanamo Bay.

The United States defended its treatment of foreign terrorism suspects in a hearing before the committee in Geneva on Friday, saying it backed a ban on torture.

http://news.yahoo.com/s/nm/20060507...YcsSeNg.3QA;_ylu=X3oDMTA3MXN1bHE0BHNlYwN0bWE-

 

[QueEx]

Supreme Court Rejects Bush Terror Powers

<font size="5"><center>Supreme court rejects Bush terror powers</font size>
<font size="4">· Military tribunals and rendition ruled illegal
· Defiant president to seek support from congress </font size></center>

Suzanne Goldenberg in Washington
Friday June 30, 2006
The Guardian

The US supreme court yesterday rolled back the sweeping powers appropriated by the Bush administration in the war on terror, ruling it could not order military trials for Guantánamo detainees without the protections of the Geneva convention and American law. The 5-3 decision in the case brought by Salim Ahmed Hamden, Osama bin Laden's driver, was seen as a rejection of the central premise that Mr Bush, as wartime president, has legal authority that exceeds the powers of international treaties, US courts, and Congress.

In compelling the administration to comply with the Geneva convention at its war crimes trials, the court also implicitly outlawed some of the other controversial practices in the war on terror, such as torture and rendition, lawyers for the 460 detainees at Guantánamo said.
Some lawyers said the ruling places limits in other arenas of the war on terror, such as Mr Bush's order authorising the National Security Agency to monitor the email and telephone calls of Americans without court oversight. The lawyers said the direction from the court for the Bush administration to comply with Geneva convention safeguards for humane treatment would apply not only to Guantánamo, but the dozens of US detention centres around the world.

The court also reaffirmed the rights of hundreds of inmates, held without charge at Guantánamo for four years, to challenge the legality of their detention in US courts.

Lawyers for the detainees were delighted. "What this says is that the administration can no longer simply decide arbitrarily what it wants to do with people," said Michael Ratner, president of the Centre for Constitutional Rights, which represents about 200 of the men at Guantánamo. But there was no indication that the blow to the White House vision of overarching executive power would hasten the end of a detention regime that has become a symbol of abuse in the war on terror - despite Mr Bush's comments that he would like to close Guantánamo.

Minutes after the ruling the president said he would seek legislation explicitly authorising the 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 told a press conference.

Justice department officials argued the court had pointed the way out of the legal morass by noting that Congress could pass laws specifically authorising military tribunals. "Nothing prevents the president from returning to Congress to seek the authority he believes necessary," Justice Stephen Breyer wrote in his opinion.

But the decision does drastically curtail the powers claimed by this White House to override international human rights treaties as well as US military law.

Hamdan, a Yemeni arrested by Afghan forces in 2001, has been at Guantánamo since 2002. He was among the first inmates designated for trial before a military commission, on a charge of conspiracy to commit war crimes. His lawyers had argued that the tribunals, as established by a presidential order, violated legal norms. Yesterday, the justices agreed.

"We conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the Uniform Code of Military Justice and the Geneva conventions," said Justice John Paul Stevens, who wrote the majority decision. He went on: "It is not evident why the danger posed by international terrorism, considerable though it is, should require, in the case of Hamdan's trial, any variance from the courts-martial rules."

The sweep of the decision came as a surprise both to administration officials and to the detainees' lawyers, who said they were delighted with the outcome. "If the Geneva convention applies to this man, then the whole CIA programme of rendition is illegal," said Zachary Katznelson, senior counsel at Reprieve, which represents 36 detainees at Guantánamo "What they are saying is anyone picked up in the war on terror needs to be treated according to the Geneva convention."

Mr Bush established military tribunals by an executive order in 2001, which said it would be "not practicable" to apply the rules of law governing US courts.

Suspects brought before military tribunals have no right to a lawyer, or even to see all the evidence against them, and they are liable to the death penalty even in cases of a split decision. So far only 14 inmates of Guantánamo - including Salim Ahmed Hamdan - have been brought before military tribunals.

Backstory

759 detainees have been held in Guantánamo since the US began using the camp in January 2002.

10 have been charged before US military war crimes tribunals for conspiring with al-Qaida.

Officially there have been 41 suicide attempts by 25 detainees since January 2002. Defence lawyers believe the number to be much higher.

18 inmates are on hunger strike, down from a total of 131.

55% of detainees have not engaged in any hostile act against the US or its allies.

60% are "associated with", 30% are "members of", 8% "fighters for" and 2% have no identified connection to a terrorist group.


http://www.guardian.co.uk/frontpage/story/0,,1809557,00.html

 

[QueEx]

Re: Supreme Court Rejects Bush Terror Powers

<font size="6"><center>Governing Philosophy Rebuffed</font size>
<font size="4">Ruling Emphasizes Constitutional Boundaries
Supreme Court has struck at the core of Bush presidency
and dismissed the notion that the president alone can
determine how to defend the country</font size></center>

Washington Post
By Peter Baker and Michael Abramowitz
Washington Post Staff Writers
Friday, June 30, 2006; Page A01

For five years, President Bush waged war as he saw fit. If intelligence officers needed to eavesdrop on overseas telephone calls without warrants, he authorized it. If the military wanted to hold terrorism suspects without trial, he let it.

Now the Supreme Court has struck at the core of his presidency and dismissed the notion that the president alone can determine how to defend the country. In rejecting Bush's military tribunals for terrorism suspects, the high court ruled that even a wartime commander in chief must govern within constitutional confines significantly tighter than this president has believed appropriate.

For many in Washington, the decision echoed not simply as a matter of law but as a rebuke of a governing philosophy of a leader who at repeated turns has operated on the principle that it is better to act than to ask permission. This ethos is why many supporters find Bush an inspiring leader, and why many critics in this country and abroad react so viscerally against him.

At a political level, the decision carries immediate ramifications. It provides fodder to critics who turned Guantanamo Bay into a metaphor for an administration run amok. Now lawmakers may have to figure out how much due process is enough for suspected terrorists, hardly the sort of issue many would be eager to engage in during the months before an election.

That sort of back-and-forth process is just what Bush has usually tried to avoid as he set about to prosecute an unconventional war against an elusive enemy after the attacks of Sept. 11, 2001. He asserted that in this new era, a president's inherent constitutional authority was all that was needed. Lawmakers and judges largely deferred to him, with occasional exceptions, such as the Supreme Court two years ago when it limited the administration's ability to detain suspects indefinitely.

"There is a strain of legal reasoning in this administration that believes in a time of war the other two branches have a diminished role or no role," Sen. Lindsey O. Graham (R-S.C.), who has resisted the administration's philosophy, said in an interview. "It's sincere, it's heartfelt, but after today, it's wrong."

Bruce Fein, an official in the Reagan administration, said the ruling restores balance in government. "What this decision says is, 'No, Mr. President, you can be bound by treaties and statutes,' " he said. " 'If you need to have these changed, you can go to Congress.' This idea of a coronated president instead of an inaugurated president has been dealt a sharp rebuke."

The administration's allies, however, were disturbed that Bush's hands now may be tied by the ruling, written by Justice John Paul Stevens. "Stevens's opinion was quite shocking in its lack of discussion of the president's independent authority," said Andrew McBride, a former Justice Department official who wrote a brief supporting the administration on behalf of former attorneys general and military lawyers.

Bush made no such protest himself yesterday, caught by surprise at the decision. He was meeting with visiting Japanese Prime Minister Junichiro Koizumi in the Oval Office and was about to head out for a news conference when counselor Dan Bartlett and press secretary Tony Snow informed him of the ruling. White House counsel Harriet Miers then arrived and gave Bush what he called a "drive-by briefing," but he gave little reaction when he met with reporters.

Snow later disagreed that the ruling undercut Bush's authority. "I don't think it weakens the president's hand, and it certainly doesn't change the way in which we move as aggressively as possible to try to cut off terrorists before they can strike again," he said.

Bush came to office intent on expanding executive power even before Sept. 11, 2001, encouraged in particular by Vice President Cheney, who has long been convinced that presidential authority was improperly diminished after Watergate.

The decision to create military commissions to try terrorism suspects, instead of using civilian courts or courts-martial, represented one of the first steps by the administration after the al-Qaeda attacks on New York and Washington to create a new legal architecture for handling terrorism cases.

As described by the New Yorker this week, the executive order establishing military commissions was issued without consultations with then-Secretary of State Colin L. Powell or then-national security adviser Condoleezza Rice after a concerted push by Cheney's legal adviser, David S. Addington, now his chief of staff.

"Rather than push so many extreme arguments about the president's commander-in-chief powers, the Bush administration would have been better served to work something out with Congress sooner rather than later -- I mean 2002, rather than 2006," said A. John Radsan, a former CIA lawyer who now teaches at William Mitchell College of Law.

The administration relied on the same expansive view of its power in detaining U.S. citizens indefinitely as enemy combatants, denying prisoners access to lawyers or courts, rejecting the applicability of the Geneva Conventions in some instances, employing harsh interrogation techniques and establishing secret CIA prisons for terrorism suspects in foreign countries. Only its telephone and e-mail surveillance program, which is operated by the National Security Agency, stirred much protest in Congress.

The administration often fended off criticism by arguing that the commander in chief should not be second-guessed. "The Bush administration has been very successful in defining the debate as one of patriotism or cowardice," said Andrew Rudalevige, author of "The New Imperial Presidency" and a Dickinson College professor. "And this is not about that. This is about whether in fighting the war we're true to our constitutional values."

In some ways, the ruling replicates a pattern in American history where presidents have acted aggressively in wartime, only to be reined in by courts or Congress. Even some Bush supporters said yesterday that it may be appropriate now to revisit decisions made ad hoc in a crisis atmosphere, when a president's natural instinct is to do whatever he thinks necessary to guard the nation against attack.

"That's what presidents do, and I say thank goodness for that," said George J. Terwilliger III, deputy attorney general under President George H.W. Bush. "But once you get past that point . . . both as a matter of law and a matter of culture, a more systemic approach to the use of authority is appropriate."

http://www.washingtonpost.com/wp-dyn/content/article/2006/06/29/AR2006062902300.html?referrer=email

 

[QueEx]

Re: Supreme Court Rejects Bush Terror Powers

<font size="5"><center>Senators Defy Bush On Terror Measure</font size>
<font size="4">Panel Backs Rival Bill On Interrogations</font size></center>

Washington Post
By Charles Babington and Jonathan Weisman
Washington Post Staff Writers
Friday, September 15, 2006; Page A01

A Senate committee rebuffed the personal entreaties of President Bush yesterday, rejecting his proposed strategies for interrogating and trying enemy combatants and approving alternative legislation that he has strenuously opposed.

The bipartisan vote sets up a legislative showdown on an issue that GOP strategists had hoped would unite their party and serve as a cudgel against Democrats in the Nov. 7 elections. Instead, Bush and congressional Republican leaders are at loggerheads with a dissident group led by Sen. John McCain (R), who says the president's approach would jeopardize the safety of U.S. troops and intelligence operatives.

Despite heavy lobbying by Bush, who visited the Capitol yesterday, and Vice President Cheney, who was there Tuesday, McCain and his allies held fast. Even former secretary of state Colin L. Powell weighed in on McCain's side.

Moments after the Armed Services Committee voted 15 to 9 to endorse McCain's alternative bill, the Arizona senator lashed out at CIA Director Michael V. Hayden, who had also lobbied lawmakers personally.

McCain told reporters that Hayden wants Congress to give the CIA a virtually free hand to treat detainees as it wishes so that he and his agents will be immunized against accusations of unlawful conduct. "He's trying to protect his reputation at the risk of America's reputation," McCain said. The senator noted that other nations would be more likely to abuse U.S. captives if Americans appeared to sanction such conduct.

A CIA spokesman said Hayden "wants to protect the people who work for him" and who take risks to "help keep all Americans safe."

The committee action puts McCain and his allies on a collision course with the administration, whose supporters hope to change the bill in the full Senate, and with the House, which is expected to approve the president's bill next week.

With virtually all Senate Democrats likely to back McCain, he appears to have enough Republican support -- for now, at least -- to fend off amendments on the Senate floor and to block passage of the House version if it emerges from a conference committee.

Congress is scheduled to adjourn in two weeks, and lawmakers said they will be hard pressed to resolve the matter before the elections.

The disagreement centers mainly on how to square the CIA's techniques with the Geneva Conventions, which say wartime detainees must be "treated humanely." The administration bill says the United States complies with the conventions as long as interrogators abide by a 2005 law barring "cruel, inhuman, or degrading" treatment of captives.

McCain and his chief Republican allies on the Senate committee, Chairman John W. Warner (Va.) and Lindsey O. Graham (S.C.), say that this requirement is too narrow and that the United States should not try to limit its obligations under the Geneva Conventions. Instead, they want CIA officers to abide by the common understanding of the treaty's meaning, including a ban on "outrages upon personal dignity."

Bush's bill would also allow alleged enemy combatants to be convicted by military commissions relying on classified information not shared with the suspects. The McCain-backed measure would make the exclusion of classified information more difficult, and it states in general terms that defendants have the right to examine and respond to any evidence directly related to guilt or innocence.

Joining McCain, Warner and Graham in voting for their bill yesterday were Republican Sen. Susan Collins of Maine and all of the committee's Democrats.

The dispute has fractured the GOP establishment. Powell and numerous retired military officers wrote letters supporting McCain's position, while Secretary of State Condoleezza Rice and other administration officials weighed in on Bush's behalf. The president made a rare visit to Capitol Hill yesterday to rally House Republicans and thank the House Armed Services Committee for overwhelmingly approving legislation that mirrored his position.

"The most important job of government is to protect the homeland, and yesterday they advanced an important piece of legislation to do just that," Bush told reporters. "I'll continue to work with members of the Congress to get good legislation so we can do our duty."

White House officials released a letter from senior Pentagon uniformed lawyers, who said they "do not object" to two key sections of the administration-backed bill that would reinterpret U.S. obligations under the Geneva Conventions and protect U.S. intelligence agents from war crimes prosecutions. They then summoned senators from the Armed Services and intelligence committees to an afternoon meeting with Rice and national security adviser Stephen J. Hadley. Seven attended, sources said.

The Pentagon letter immediately generated controversy. Senior judge advocates general had publicly questioned many aspects of the administration's position, especially any reinterpreting of the Geneva Conventions. The White House and GOP lawmakers seized on what appeared to be a change of heart to say that they now have military lawyers on their side.

But the letter was signed only after an extraordinary round of negotiations Wednesday between the judge advocates and William J. Haynes II, the Defense Department's general counsel, according to Republican opponents of Bush's proposal. The military lawyers refused to sign a letter of endorsement. But after hours of cajoling, they assented to write that they "do not object," according to three Senate GOP sources who spoke on the condition of anonymity because they were divulging private negotiations.

Graham, a former Air Force judge advocate general, promised to summon the lawyers to a committee hearing and to ask for an explanation of the circumstances surrounding the letter.

One of the military lawyers, Air Force Maj. Gen. Charles J. Dunlap Jr., reiterated yesterday that he still has reservations about the administration's proposal, just not in the areas discussed in the letter. He said he was not forced to sign.

"I made my several personal objections to the administration's proposal clear in my [House] testimony," Dunlap said. "This matter was not among them."

White House press secretary Tony Snow told reporters yesterday that Bush "will not accept something that prevents the [CIA detention] program from going forward." At a feisty briefing, Snow said critics have misconstrued the administration's intent, which he said is to define the Geneva Conventions' ban on cruel and inhumane treatment, not to undermine it.

"Somehow I think there's this construct in people's minds that we want to restore the rack and start getting people screaming, having their bones crunching," Snow said. "And that's not at all what this is about."

He said Powell did not discuss the issue with the White House before releasing his letter.

"They don't understand what we're trying to do here," he said of Powell and retired Army Gen. John W. Vessey Jr., who wrote a similar letter. Asked if Powell is "confused," Snow said, "Yes."

McCain, who was tortured as a Vietnam War prisoner, dismissed similar comments in the committee session, saying Powell knew exactly what he was doing.

Staff writers Peter Baker, Josh White and R. Jeffrey Smith contributed to this report.



http://www.washingtonpost.com/wp-dyn/content/article/2006/09/14/AR2006091400160.html?referrer=email

 

[thoughtone]

High Court Strikes A Blow To Bush’s Unilateral Presidency

source: NPR.org

States Not Subject to All Treaties, High Court Rules
by Nina Totenberg

All Things Considered, March 25, 2008 · The U.S. Supreme Court delivered a major opinion on Tuesday that limits the force of many U.S. treaties and rejects President Bush's assertion that he can unilaterally order state governments to comply with treaties.

As the U.S. Constitution reads, "All Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby..." So when the Senate ratifies a treaty with a two-thirds vote, does that mean the treaty provisions are binding on the states?

The Supreme Court ruled that they are binding only if the treaty explicitly says so or if there is legislation to make that clear. For all of American history, many treaties have been deemed to be what is called "self-executing," meaning that their provisions are automatically binding. But not all treaties fall into this category. The Supreme Court's ruling set a bright line for which treaties are self-executing — namely, those that explicitly say so or have accompanying legislation that says so.

The court said the president, acting on his own, cannot make a treaty binding on the states.

The ruling came in a death penalty case involving a treaty enacted in 1969 that guaranteed foreign nationals access to diplomats from their home countries if they are accused of crimes. Although the provision was inserted at the insistence of the United States to protect its citizens abroad, state and local governments in the U.S. were slow to honor it. In 2004, the Mexican government went to the International Court of Justice on behalf of 51 of its citizens on death row in the United States who had not been told of their right to consular access, and thus, did not have the benefit of the Mexican government's help at the time of their trials.

The international court ruled that the United States had violated its treaty obligations and ordered the U.S. to in some form reconsider the death sentences. Bush then withdrew from the part of the treaty subjecting the United States to the international court's jurisdiction.

But for those 51 individuals, he ordered the state courts to comply. His home state of Texas refused, asserting that the president's unilateral assertion of power was unconstitutional. On Tuesday, the U.S. Supreme Court agreed by a 6-3 majority.

Diplomats Dismayed

Writing for the court, Chief Justice John Roberts said that because the treaty did not explicitly say its provisions were binding, and because there was no legislation to make the treaty binding, the president could not on his own force the states to comply.

"There is no reason to believe that the president and the Senate signed up for such a result," he said.

The dissenting justices, Stephen Breyer, Ruth Bader Ginsburg and David Souter, said some 70 existing treaties are in jeopardy because of Tuesday's ruling.

Many U.S. diplomats were dismayed. Yale Law School Dean Harold Koh, who served as a State Department official in the Clinton administration, said the decision would create havoc in diplomatic circles for some time to come.

"If our international allies have no assurance that we're actually going to keep our word, then they have much less incentive to keep their word when they're being obliged to do something," he said.

But Charles Cooper, a former Reagan administration official, said Bush had gone too far.

"The notion that the president can himself unilaterally determine that it shall be a binding domestic law, even to the point of preempting state laws dealing with criminal procedure, is a breathtaking proposition, and that's what the court rejected," he said.

Temple law professor Duncan Hollis, an expert on international law, said that nonetheless, Tuesday's ruling will have practical consequences. Because enforcement of some existing treaties may now be in doubt, negotiations over future treaties could be more difficult, he said, with general assurances of enforcement failing to suffice.

Arguments Test Rights of Americans Held in Iraq

After the treaty decision was announced, the court heard arguments in the cases of two men, both American citizens, who are challenging their detention by U.S. forces in Iraq. The men traveled to Iraq after the war — one as a translator for journalists, the other allegedly seeking reconstruction work.

The United States claims they are terrorists and wants them turned over to the Iraqis for trial and potentially execution. The men say they are innocent and contend they are entitled to a hearing in the U.S. courts to test the basis for their detention before being turned over.

Deputy Solicitor General Greg Garre, representing the Bush administration, told the justices that when U.S. citizens go abroad, they cannot then come back to the U.S. courts to complain about their arrest and trial in other countries.

"Could they be released to a lynch mob?" Justice Anthony Kennedy asked.

Garre responded that the Iraqi courts are functioning under fundamental standards.

Lawyer Joseph Margulies, representing the two men being held in Iraq, faced even tougher questioning.

When Margulies fudged about whether U.S. citizenship is key to his case, Ginsburg asked if a U.S. citizen who is facing torture if released to a foreign government should be protected, while a non-citizen should be thrown to the "lion's den." When Margulies said no, Justice Antonin Scalia came back at him from the other direction: "To say that the whole world has the protections of the U.S. Constitution is extravagant!"

 

[Greed]

Re: High Court Strikes A Blow To Bush’s Unilateral Presidency

Amazing that when you read this article you actually thought this contradicts Bush's ideology rather than your's.

 

[thoughtone]

Re: High Court Strikes A Blow To Bush’s Unilateral Presidency

Amazing that when you read this article you actually thought this contradicts Bush's ideology rather than your's.

What happen to the strict constructionism? Even the lunatic fringe Alito, Thomas, Roberts and Scalia ruled against it. Shows how conservative you are. Bush loyalist.

 

[Greed]

Re: High Court Strikes A Blow To Bush’s Unilateral Presidency

So you really think a strong state's rights verdict is consistent with your idea of which direction this country should go?

Personally, I was always taught that the language of that clause automatically makes treaties binding on the individual states, and I believe that should be the case unless specifically stated otherwise in the treaty or through legislation. Not the other way around.

What do you believe?

 

[thoughtone]

Re: High Court Strikes A Blow To Bush’s Unilateral Presidency

So you really think a strong state's rights verdict is consistent with your idea of which direction this country should go?

Personally, I was always taught that the language of that clause automatically makes treaties binding on the individual states, and I believe that should be the case unless specifically stated otherwise in the treaty or through legislation. Not the other way around.

What do you believe?

Break out the bubbly, you actually are requesting my opinion? Treaties between the United States and other sovereigns are law. The president does not create law, he enforces them. Congress creates law. The founders intentionally made it difficult to create law. In fact a consensus must be made in order to pass law. If the executive wishes to enact treaties between countries, let him/her introduce it congress. I don’t look at this as a states rights case as so much as a challenge to Bush’s attempt to concentrate legislation and enforcement powers. Something the founders clearly delineated.

 

[Greed]

Re: High Court Strikes A Blow To Bush’s Unilateral Presidency

Why are you ignoring that treaties are submitted to the Senate for ratification. Upon ratification the Constitution states the treaties, "shall be the supreme Law of the Land." As the chief executive, Bush has as obligation, as you agree with, to enforce the law. I don't know where the ambiguity originates from that he would be wrong from using his federal powers to trump the states' authorities.

It seems to me that a better decision by the Supreme Court would have been the Executive does have unilateral authority to enforce properly ratified treaties, but independent of that authority the only option available to the 51 foreign nationals is to appeal their convictions based on the international court's verdict or the Supreme Court could have outright ordered new trials for those individuals.

The real problem this may be exposing is that constitutional clause was written at a time when the Senate directly represented the interest of the state governments, which essentially eliminated the controversy of whether the treaties are self-executing since it wouldn't be ratified without the states' permission in the first place.