I turned on the TV late Saturday evening and flipped to C-SPAN. They were playing audio of the oral arguments in the Hamdan v. Rumsfeld SCOTUS decision. At the time that I tuned in, the Solicitor (the Administration's attorney) was arguing his position before the Justices. The fact that I was watching C-SPAN on a Saturday night in Los Angeles most definitely puts me in spoon or no spoon's Saturday Night Loser club--but there are certain sacrifices one must make for one's country.
I don't know if there is a transcript available of these proceedings--I haven't been able to find one. But I can recount the events fairly accurately in general terms. Justices Kennedy, Breyer, Ginsburg, Souter and Stevens took turns picking apart various points of the Solicitor's position. Scalia would interject with some points occasionally--sometimes asking for clarification, sometimes interrupting to come to the defense of the Solicitor when he was unable to successfully withstand the critiques of the other Justices. Thomas and Alito made no interjections or questions in the time that I was listening. (Roberts was not present, as he recused himself from the case due to conflict-of-interest. That's why the eventual vote was 5-3.)
The most interesting source of contention came between the Solititor and Justice Stevens. The Solicitor argued that the writ of Habeas Corpus had been suspended by Congress upon passage of the AUMF, even if Congress was unaware that it had done so. Stevens was aghast at the suggestion, and countered that the suspension of the Writ of Habeas Corpus during a time of Insurrection, Invasion or Rebellion was one of the most drastic measure a Congress could undertake and it was absurd to claim that Congress could accidentally, unknowingly or unintentionally suspend the Writ.
When it came down to it, the Solicitor's argument defending the Administrations ability to hold these tribunals without specific authorization from Congress was horrifying on its face. The argument was essentially this--this is not a quote, this is merely an encapsulation:
The Administration has the authority to conduct these tribunals without the expressed consent of Congress because the Authorization for the Use of Military Force passed by Congress conferred upon the administration the right to do so, even if Congress did not expressly intend that to be the case.
The Supreme Court took a different view. The majority opinion, authored by Justice Stevens, concluded that nowhere in the legislative history of Congress were changes to the laws governing military tribunals granted or intended to be granted to the Administration; that "Article II on steroids" is not sufficient legal justification; and that the Administration must seek explicit legislative approval from Congress for any changes to the law governing military tribunals. Quoting that source of evil, The New York Times:
In 2004, the Supreme Court endorsed a part of this argument, but Justice John Paul Stevens, writing for the majority in Hamdan, was having none of it. There is, he said "nothing in the text or legislative history" of the authorization "even hinting that Congress intended to expand or alter" existing laws concerning military trials.
Now, let's take a look at the very telling reaction that former administration lawyer John Yoo had concerning the SCOTUS decision. I went into this in a little detail in my post on MyLeftWing about this issue. Let's review some of Yoo's statements about the issue, shall we? The interview I just linked to provides many startling quotes by Yoo, but I think one of them is the most telling of all:
"I worked on the authorization," he added. "We wrote it as broadly as possible. In past wars, the court used to let the president and Congress figure out how to wage the war. That's very different from what's happening today. The court said, 'If you want to do anything, you have to be very specific and precise about it.' "
Do you see what Yoo is arguing here? The AUMF was written so broadly for a reason! He's saying that from day one, the administration intended to use the AUMF to justify NSA wiretapping, indefinite detention, and all the other unconstitutional programs that have come under recent scrutiny--even if Congress had no idea that this is what the Administration was intent on doing. And John Yoo is devastated that specific approval must now be given by Congress because he knows that there is no way in Hell that Congress would grant specific approval for all of the programs that the administration is currently claiming are legal based on the AUMF.
The argument in the Supreme Court--the meat of the Hamdan v. Rumsfeld decision--was about whether or not the Administration had successfully deceived Congress into unknowingly giving it legal approval for all of the otherwise illegal programs it wished to undertake.
The Supreme Court smacked them down and said that the intent of Congress is the final arbiter, and that intent must be made manifest for any program to be legal.
In my opinion, this is why the Majority decision "so lacks the traditional deference to the President," in the words of John McGinnis, Professor of Law at Northwestern. The Supreme Court should rightfully have no deference to an Administration that is so disrespectful of the other co-equal branches of our Government that it was willing to argue that it had successfully deceived Congress into unknowingly granting it dictatorial powers.
There is at this point only one thing left for Congress to do in the face of an Administration that has no respect for the other branches of Government:
I call on the Congress to repeal the AUMF as a protest against the Administration's intent to deceive the Congress and render it insignificant.
Even Republican Congresscritters should be outraged at what has happened. They should be appalled that the Administration is arguing that they can be deceived into granting powers without expressed intent. If they had any pride, they most certainly would be.
[Cross-posted at Daily Kos]