US Supreme Court Cuts Presidential Powers Down to Size

Other Breaking News Yesterday's shift of authority to Iraq was, like so much else in the U.S.-led occupation of Iraq, a surprise -- apparently driven by the deteriorating security situation. With the world awaiting some sort of grand farewell tomorrow, U.S. occupation chief L. Paul Bremer agreed instead to a low-key transfer of legal documents yesterday morning in the fortified Green Zone and departed Baghdad a few hours later. The all-but-invisible ceremony couldn't disguise the fact that Iraq has confounded the grand strategy of transformation that led the Bush administration to invade the country 15 months ago. The handover leaves a fragile, chaotic Iraq whose old institutions of security were broken by the U.S.-led invasion but whose new security forces aren't yet fully ready to take control. Read here for more... The US military plans to guard Iraq’s interim prime minister, Iyad Allawi, even after Wednesday’s handover of power, as assassination threats against his government rise, the deputy commander of coalition forces told AFP."Number one on the priority list is the survival of this government. We need to offer protection to this new Iraqi government," said Lieutenant General Thomas Metz. Read here for more One of the few good things to be said about the British empire is that we got rid of it in style.Handing a country back to its rightful owners always turned into a great occasion. The Queen, or one of her closest relatives, would be there, along with the British top brass in their finest regalia. The new rulers, too, would be decked out in colourful national dress. When the historic moment came, the union flag would be lowered for the last time, and the flag of another newly-independent state would rise to the top of the pole. Brass bands would play the two national anthems, and there would be smiles all round - even though it was often obvious that, the following day, the incoming regime would begin to dismantle many of the institutions the British had set up in order to show the natives how to run a country "properly". What we got, however, was very different. At a rather subdued gathering, Paul Bremer, the US administrator, held up a large legal document - the title deeds to Iraq, as it were - and passed it to a man in a suit with his back to the TV cameras. The half-dozen or so officials in the room clapped politely for around three seconds. It was all over - and Mr Bremer had hastily left the country - before anyone outside the heavily-guarded Green Zone even knew the handover was happening. Read here for more The U.S. led-coalition, facing a Wednesday deadline to hand back power, has put in place major legal revisions that would force Iraqis to get drivers' licenses, obey traffic laws, ban certain people from holding office and place American contractors above the law. As Iraq's highest authority, Bremer has issued more than 100 orders and regulations, many of them Western-style laws governing everything from bankruptcy and traffic, to restrictions on child labor and copying movies. Some are likely to be ignored. One law requires at least a month in jail for people caught driving without a license - something many Iraqis do not have. Another demands that drivers stay in a single lane, a rule widely ignored in Iraq's chaotic streets. Read here for more The transfer of authority to an Iraqi government has failed to impress Arab analysts, who predict violence against U.S. troops will continue and Arab governments will withhold full diplomatic recognition.An Arab diplomat said most Arab states would welcome the change as a good step forward but maintain their "wait and see" attitude until Iraqis choose a new government through elections.Read here for more U.S. commanders concede that they are far from quelling a stubborn and increasingly sophisticated insurgency. It has extended well beyond supporters of Saddam Hussein and foreign fighters, spreading to ordinary Iraqis seething at the occupation and its failures. They act at the grass-roots level, often with little training or direction, but with a zealousness born of anticolonial ambitions.U.S. commanders acknowledge that military might alone cannot defeat the insurgency; in fact, the frequent use of force often spurs resistance by deepening ill will.Read here for more

Read here Editorial in the Washington Post "Supreme Rebuke"

Washington Post Editorial
29th June 2004

Since the outset of the war on terrorism, the Bush administration, across a wide range of issues, has had a simple message for the federal judiciary: Trust us and don't interfere.

Yesterday, in a pair of much-awaited rulings, the court delivered its response.

First, the justices declared that U.S. citizens designated as enemy fighters are entitled to a "fair opportunity" to challenge their detentions and "unquestionably [have] the right to access to counsel" in doing so.

Then the justices held that federal courts have jurisdiction to hear challenges to the detentions of noncitizens held at Guantanamo Bay, Cuba.

Trust, even during wartime, has limits.

The most important decision of the day came in the case of Yaser Esam Hamdi, the Louisiana-born Saudi man who has been held in a military brig for the past two years after being captured in Afghanistan.

The decision is more historic still for transcending the court's frequent ideological divide.

Eight justices rejected the government's contention that Mr. Hamdi could be locked up indefinitely, incommunicado, on the strength of a two-page, hearsay affidavit and without any opportunity to respond to the government's allegations.

The justices did not agree on the proper resolution of the case:

A four-member plurality led by Justice Sandra Day O'Connor held -- as we have argued -- that an American who fights with the enemy may be detained as an enemy fighter but must have a meaningful opportunity to contest the designation.

Justices David H. Souter and Ruth Bader Ginsburg argued that Congress's authorization of the use of force did not include the authority to detain Americans.

Justices Antonin Scalia and John Paul Stevens argued that Mr. Hamdi was entitled either to be tried or freed.

Only Justice Clarence Thomas would have affirmed the government's position.

Consequently, the case not only guarantees that Mr. Hamdi will get to tell the courts his side of the story but also sends a powerful message that Americans cannot just disappear at the hands of their government.

Even during wartime, the government must be held to account -- albeit not necessarily in a full-fledged criminal trial -- before an American can be locked up.

That's important not just for Mr. Hamdi but for liberty generally. And it means that the other American held as an enemy combatant, Jose Padilla, will at last get a hearing as well.

The court dismissed Mr. Padilla's case, finding that it had been filed in the wrong court. But the decision in Hamdi means that in any renewed litigation, more than the government's say-so will be needed to keep Mr. Padilla behind bars.

The court's skepticism about the government's position extended even to that case where precedent was most strongly on the administration's side.

The government had a powerful argument that Guantanamo lies outside the court's jurisdiction, an argument with which we agreed. Yet the administration's willful failure for so long to construct at Guantanamo a review process in which the public could have confidence makes the court's decision to intervene something of a self-inflicted wound for the administration.

It isn't clear what, in practice, the decision will mean.

If the result is to spur the administration to improve review and inject a measure of outside oversight, it could prove constructive. But there are dangers as well. Holding that jurisdiction exists to consider these cases is not the same as saying they have legal merit, so the decision is far from a promise of meaningful review of Guantanamo detentions, and it could prove quite disruptive.

The decision's logic seems to imply that any detainee held anywhere by U.S. forces -- even someone such as Saddam Hussein or Khalid Sheik Mohammed -- could have access to U.S. courts. However irresponsible the executive branch has been, the judiciary is ill-positioned to manage every overseas detention.

What should be clear, however, is that the judiciary will NOT sit still for assertions of unbridled executive power.

As the war on terrorism progresses, the administration will need -- at long last -- to submit to the oversight and transparency it has so assiduously resisted.

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