"WASHINGTON — The Supreme Court's ruling that the Bush administration can't use ad-hoc military commissions to try suspected terrorists may have sweeping implications for other aspects of President Bush's war on terrorism.
The court's decision Thursday ignited debate about its full impact among lawyers, legal scholars, administration officials and members of Congress.
Some think the opinion could challenge the administration's claim the National Security Agency (NSA) has the right to eavesdrop without court approval on Americans suspected of having ties to al-Qaida or other terrorist groups."
Yeah....dream on.
The only "indication" from the ruling is that we still have leftist judges that legislate from the bench. That aside the ruling changes nothing at Gitmo other than Congress will simply turn around and give the President the authority - end of story.
It's amazing that the media continually and outright lies about how the NSA program is a "Bush deal", when it's existed for years. Additionally the only ones who can't seem to get their story straight is the media. Nevertheless, the Hamden decision has plenty of room to be re-argued on howbeit different terms base on the dissentions which were based on far greater reason that the hapless meanderings of Stevens.
This fact is well summerized in two points by Andy McCarthy at NRO:
"1. Justice Breyer's short concurring opinion maintains that all the court has really done is invite the president to seek legislation from congress authorizing the commissions and defining their structure. Several folks, me included, have argued from time to time that this is overdue anyway — we should have a national security court, created by congress to get many of the terrorism cases out of the regular criminal justice system. But that said, Justice Breyer's unfortunate invocation of the left-wing/civ-lib-extremist talking point, to wit, that "Congress has not issued the Executive a 'blank check,'" is bombast.
There has never been a moment since 9/11 when Congress, had it chosen to, could not have prescribed a new scheme for military commissions. The president's commission plan, well known since 2001, was fully permissible under existing statutory law and venerable court precedent. But Congress was not bound by it. It could have jumped into the breach at any point. In fact, it did jump in, enacting the Detainee Treatment Act in late 2005. By doing so, it demonstrated the obvious: if congress had been unhappy with the president's commission procedures, it would have modified them. Instead, it acted in a manner precisely designed to let the commissions go forward without court interference.
This was no blank check. Congress examined what the executive branch was doing, was fully satisfied, and acted to correct the only thing it found offensive — the judicial intrusion.
2. A big issue to watch out for as congress re-examines this: the protection of classified information from al Qaeda in the trial process.
One of the principal reasons for having commissions rather than courts-martial or civilian trials is to prevent our enemies from learning what we know and how we know it. But the court held that the president had not justified procedures which call, potentially, for excluding the terrorists from the courtroom when classified information is introduced.
Now, let's compare. Alien combatants have no constitutional rights; therefore, they have no constitutional right to be present at trial. On the other hand, protecting the security of the American people — which is what classified information is all about — is the number one obligation of government. So by what law does an al Qaeda killer's purported right to be present outweigh the American people's unquestioned right to have the government protect them (by, for example, not providing the enemy with sensitive intelligence)?
It could only conceivably be Geneva's Common Article 3 — an international law provision the court had to twist beyond recognition to give the enemy its benefit. That fuzzy language talks about providing "judicial guarantees which are recognized as indispensable by civilized people." OK, but who says all "civilized people" would opt to elevate a homicidal maniac's right of access to the government's most sensitive information over the government's obligation to protect its citizens by withholding intelligence that may help those trying to kill them do just that?
Why is this question so important? Because you can bet a big part of the debate in congress will be about whether the court has left congress with any latitude here on this point.
That's why Jonah's observation about Hamdan not being constitutionally based is crucial. Congress absolutely has the power to deny al Qaeda terrorists the right to be present at portions of trial where sensitive evidence is introduced. Let's leave aside that the court's entire Common Article 3 rationale is hooey (the article doesn't apply to al Qaeda and the court owed deference to the president's interpretation to that effect). The salient point here is that when the inevitable argument is made that the Geneva Conventions now require handing over our intelligence to the enemy in wartime, congress — and more properly, the president (who has the authority to cancel treaties) — should make clear that we would withdraw from the Geneva Conventions (or at least any offending portions of them) before we do that.
The main point being that there is NO Constitutional protection for someone who is 1. Not a citizen, and 2. Commits hostile acts against the US. In this the justices erred completely.
So in essence, I see congress quickly acting to "reverse" the Court's decision and thus the entirety of it's effect.
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