Today, the Supreme Court ruled on the long-awaited case Hamden vs. Rumsfeld. The Court delivered a harsh rebuke of the Bush Administration and it’s claim that it may try enemy combatants in front of military tribunals, with little of the rights compared to those afforded to defendants in U.S. criminal courts.

Supreme Court Blocks Guantánamo Tribunals
By John O’Neil and Scott Shane
New York Times

The Supreme Court today delivered a sweeping rebuke to the Bush administration, ruling that it exceeded its authority by creating tribunals for terror suspects that fell short of the legal protections that Congress has traditionally required in military courts.

As a result, the court said in a 5-to-3 ruling, the tribunals violated both American military law and the military’s obligations under the Geneva Conventions.

The court ruled two years ago that Congress had not given the executive branch a “blank check” in the war on terror. But today’s ruling, written by Justice John Paul Stevens, was the first to address the standards that should apply to suspects held in what has become a prolonged struggle.

This is perhaps the most awaited decision of the Roberts Court so far. I think it was decided fairly and the decision is just. The Bush Administrations solution for dealing with enemy combatants, while efficient, tramples on their rights as defendants and violates the law.

The decision doesn’t surprise me. I have a lot of faith in the Supreme Court in its ability to deal with issues such as this. The most troubling aspect of this decision, of course, is the dissent.

Bush has appointed two Justices in his term as President. He has shifted the Court to the right with the appointment of Justice Samuel Alito to replace Sandra Day O’ Conner. Certainly, if she had been aloud to vote in this case, she would have sided with the majority opinion, yielding a 6-3 vote. Though a 5-3 vote isn’t that bad, if Chief Justice Roberts had not reclused himself from the case, the decision would have certainly been 5-4 — hardly decisive.

In the short run, I don’t think the Court’s shift to the right will make too many waves. I believe the Courts docket will get more controversial as now four right-wing Justices can easily accept writ of certiorari. Already, the Court has two controversial abortion cases that will be decided within the next year.

In Scalia, Thomas and Alito’s dissent, all Justices cite Congress’ attempt to strip the Court of jurisdiction in the case as a valid reason to ignore the case altogether. They also cited the dangers of the majority’s decision:

Justice Scalia focused on the jurisdictional issue, arguing that Congress had stripped the court of jurisdiction to proceed with this case, Hamdan v. Rumsfeld, No. 05-184, when it passed the Detainee Treatment Act last December and provided that “no court, justice, or judge” had jurisdiction to hear habeas corpus petitions filed by detainees at Guantánamo Bay.

The question was whether that withdrawal of jurisdiction applied to pending cases. The majority held that it did not.

Justice Thomas’s dissent addressed the substance of the court’s conclusions. In a part of his opinion that Justices Scalia and Alito also signed, he called the decision “untenable” and “dangerous.” He said “those justices who today disregard the commander in chief’s wartime decisions” had last week been willing to defer to the judgment of the Army Corps of Engineers in a Clean Water Act case. “It goes without saying that there is much more at stake here than storm drains,” he said.

One premise of the minority’s opinion is that we are at war and wartime affords the President the latitude to suspend habeas corpus in times of war. While this is in the Constitution, I don’t believe the premise holds weight. How much of a "war" is the war on terror? How long will the war of terror last? What is a victory in the war on terror?

Did the framers of the Constitution view war to be the lifelong struggle between a nation and a seemingly endless band of terrorists or is war a point when a nation enters into conflict with another nation. I think this war is not the "war" the framers of the Constitution had in mind when they impugned the President with power to put justice aside.

I think this is the fundamental debate that we need to wage. At this moment, the right and left are trying to wage completely different arguments. Pundits like Michelle Malkin see the war on terror as World War III, while Democrats, liberals (and dare I say moderates) see the war on terror akin to something like the war on drugs, but much more serious. I think once our nation gets on the same page and settles this fundamental argument, we can come up with solutions to the problems facing us.

There has been a lot of talk this week about the New York Times and its publication of an article discussing the details of a government program that monitors the international wire transfers of Americans suspected of being terrorists. Republicans on Capitol Hill are considering taking legal action against the Times, which in the past year has exposed legally-questionable Executive programs that have not been legally verified outside of the Oval Office or a closed session of a select Congressional committee.

I understand the argument posed by critics that say revealing programs like the NSA’s domestic spying initiative and the Swift financial records program causes irreputable harm to national security, and the New York Times does as well. This was put forth in a very excellent editorial in today’s edition of the Times:

Patriotism and the Press

New York Times Editorial

Over the last year, The New York Times has twice published reports about secret antiterrorism programs being run by the Bush administration. Both times, critics have claimed that the paper was being unpatriotic or even aiding the terrorists. Some have even suggested that it should be indicted under the Espionage Act. There have been a handful of times in American history when the government has indeed tried to prosecute journalists for publishing things it preferred to keep quiet. None of them turned out well — from the Sedition Act of 1798 to the time when the government tried to enjoin The Times and The Washington Post from publishing the Pentagon Papers.

… But any argument by the government that a story is too dangerous to publish has to be taken seriously. There have been times in this paper’s history when editors have decided not to print something they knew. In some cases, like the Kennedy administration’s plans for the disastrous Bay of Pigs invasion, it seems in hindsight that the editors were over-cautious. (Certainly President Kennedy thought so.) Most recently, The Times held its reporting about the government’s secret antiterror wiretapping program for more than a year while it weighed administration objections.

Our news colleagues work under the assumption that they should let the people know anything important that the reporters learn, unless there is some grave and overriding reason for withholding the information. They try hard not to base those decisions on political calculations, like whether a story would help or hurt the administration. It is certainly unlikely that anyone who wanted to hurt the Bush administration politically would try to do so by writing about the government’s extensive efforts to make it difficult for terrorists to wire large sums of money.

From our side of the news-opinion wall, the Swift story looks like part of an alarming pattern. Ever since Sept. 11, the Bush administration has taken the necessity of heightened vigilance against terrorism and turned it into a rationale for an extraordinarily powerful executive branch, exempt from the normal checks and balances of our system of government. It has created powerful new tools of surveillance and refused, almost as a matter of principle, to use normal procedures that would acknowledge that either Congress or the courts have an oversight role.

It is an excellent rebuttal and I hope everyone takes the time to read it. A lot of people neglect to recognize that there are actually four branches of government. Established by the First Amendment, the press is responsible for holding our goverment accountable to the people. As Congress has neglected time and again its role to provide oversight for the Bush Administration, intrepid newspapers like the New York Times have found it necessary to take extraordinary methods to alert the public to its governments failings.

I think the Times took sufficient ethical steps in its decision to publish their stories and I view any government official’s criticism of the Times to be very dubious. Appealing to the fear of endangering national security has become a favorite of this government, and it’s getting old. I just hope people will start catching on.