Gitmo Court Decision Could Rein in Executive Power

On June 29, the Supreme Court ruled that President George Bush's plan to try detainees held at Guantanamo Bay, Cuba, by military tribunal is unconstitutional, and that it violates both the U.S. Uniform Code of Military Justice and the Geneva Conventions, of which the U.S. is a signatory. Many of the more than 500 prisoners have been held there for more than four years as enemy combatants in the White House war on terror. One of them is Osama bin Laden's one-time driver, Salim Ahmed Hamdan, whose attorneys appealed his case to the Supreme Court. In Hamdan v. Rumsfeld, five justices ruled against the administration's position. Justices Scalia, Alito and Thomas backed the administration, while Chief Judge John Roberts recused himself because he had ruled in the earlier appellate court decision on the case supporting the Bush administration's position.

After the Court's ruling, some Democrats in Congress called for the creation of an independent commission to review the administration's often unilateral anti-terrorism measures, while Republican leaders said they would seek to authorize military commissions at Guantanamo and restrict application of the Geneva Conventions to terrorist suspects.

Between The Lines' Melinda Tuhus spoke with Bruce Ackerman, a constitutional law professor at Yale University School of Law shortly after the Supreme Court ruling. Ackerman explains why he filed a friend of the court brief in the Hamdan case and why he considers this Supreme Court decision to be truly historic.

BRUCE ACKERMAN: It should, if we’re wise, put a closure on this period of emergency and crisis and knee-jerk reactions. First, we have to make a distinction between real wars, like those in Afghanistan and Iraq, and a metaphor called the war on terror. Terror is a technique -- it’s the destruction of innocent human beings. We do not declare war on techniques. Once you declare war on a technique, you don’t have to define who the enemy is. And so, the detainees in Guantánamo -- some of them are detainees in real wars, and some of them are in this amorphous problem -- and it’s a serious problem -- that people are conspiring to blow up American buildings and things of this kind. This is not a war; this is really a problem having to do with the free market…in death. That is to say, the state is losing its monopoly on methods of mass destruction. In the next 50 years, it’ll become cheaper and cheaper for smaller and smaller groups to buy terrible weapons. What assassination was in the 20th century … these terrible events will occur, and we need to have a new legal structure when they occur that doesn’t have to do with war, but has to do with trying to prevent the second strike, because of course, if something terrible happens, we should act in an emergency way to try to disrupt the second strike for a short period of time. And what has happened here is the actions the president took right after Sept. 11 -- which might have been reasonable as short-term emergency measures -- are then propelled into a new definition of normality. And Guantánamo is a symbol of that, insofar as many of the detainees were not caught on any battlefield. And then they find themselves in this bureaucratic nightmare, and we have to have a new emergency Constitution, as I call it, to handle the problem of the second strike, which is actually going to occur from time to time, but for a temporary period, and to take steps to make sure that what’s happened in this case -- which is that a temporary crisis has led to the redefinition of normality forever -- will never happen again.

BETWEEN THE LINES: So what do you think Bush’s next step will be? Do you think he will actually follow this decision?

BRUCE ACKERMAN: The president has already conceded that Guantánamo should be closed in principle. So, I’m absolutely sure that the president will follow through on this opinion, and what this opinion requires is that he obey the rule of law, that he not create just out of nothing new forms of justice. You know, these [military] tribunals did not give the detainees a right to be present at the trials at which their fate was going to be determined, so this was very radical stuff. The Supreme Court decision quite clearly establishes a baseline of the Uniform Code of Military Justice -- the same procedures we use for our own servicemen -- for those who were caught on a battlefield or involved in a real war in Afghanistan or Iraq. And I have to doubt the president will follow this unless, and until he goes to Congress and tries to persuade them that special and new statutory solutions are necessary. And the best thing about that, of course, is not only the statutory solution, but he’ll have to talk pragmatically and sensibly to the American people and try to explain to them what new laws are required rather than simply take unilateral action on their own.

BETWEEN THE LINES: You filed a brief in this case this past January in support of Hamdan’s case against the government. And you filed it with a very conservative law professor from the University of Chicago…

BRUCE ACKERMAN: And he and I almost never agree on anything. And we filed this brief together to emphasize that this case was not an ordinary case. It really is one of the historic decisions that the Supreme Court has handed down over two centuries, and they decided it the right way, and that’s the important point. To have rubber-stamped these extreme claims to unilateral presidential authority would have been a tragedy.

BETWEEN THE LINES: Do you think this will be like Brown v. Board of Education, like we remember 9/11, this date?

BRUCE ACKERMAN: This is an historic decision and it will be like Brown v. Board of Education in the following way. The day after Brown v. Board of Education, there was not an immediate solution to the problem of racism in this country. It took ten years to work out the Civil Rights Act of 1964 and the Voting Rights Act of 1965. This is an important decision, but part of its importance is not only that it rejected these extreme claims of presidential power, but that it will provoke, for the first time, a serious conversation on steps we should take in the future.

Bruce Ackerman's latest book is titled, "Before the Next Attack," published by Yale University Press.

Melinda Tuhus is a producer of Between The Lines, which can be heard on more than 40 radio stations and in RealAudio and MP3 on our website at http://www.btlonline.org. This interview excerpt was featured on the award-winning, syndicated weekly radio newsmagazine, Between The Lines for the week ending July 14, 2006. This Between The Lines Q&A was compiled by Melinda Tuhus and Anna Manzo.

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