Bush's War Powers: How Much of a Setback?

Mom

ents after the Supreme Court decision striking down the Bush administration's military tribunals in Guantanamo Bay, Cuba, even a lawyer close to the defense team was shocked that the court had ruled so strongly in his client's favor. The decision, he said over the phone from the courthouse steps, "will change war on terror as a whole."

That may not be far from the truth. The most bruising blow today to the Bush Administration's approach to the war on terror was not simply the Court's decision that the special military tribunals the White House had designed were illegal. It was how dramatically the decision seems to dial back the clock to pre-9/11 legal thinking.

The Court ruled that that the Geneva Convention does apply in the case of prisoners like Salim Hamed Hamdan, an admitted supporter of al-Qaeda captured in Afghanistan. The Bush Administration has spent almost five years arguing just the opposite. And if the Geneva convention applies in the case of Hamdan, it presumably applies for all 15,000 detainees held worldwide in the war on terror.

The most immediate effect of the ruling will be to scrap the Administration's current military tribunals. The court did leave open to possibility that the White House can ask Congress to have its special court system enshrined in law. But that is a humbling alternative for an Administration that has long held that the President's inherent wartime powers allow him to conduct such tribunals without consulting Congress.

The court issued a strong rebuke to the President in other ways as well. Justice Anthony Kennedy's concurring opinion reaffirmed a standing legal precedent that the President's authority is limited in areas that have already defined laws — even, Kennedy pointedly adds, in "time of crisis." This could call into question the President's authority to authorize domestic wiretapping without a warrant.

What's more, the court's ruling that Common Article 3 of the Geneva Convention applies to a detainee at Guantanamo could open the floodgates for courts to decide whether other parts of Common Article 3 also apply — such as the language that prohibits "outrages of personal dignity, in particular, humiliating and degrading treatment" of prisoners. This is particularly relevant as the Pentagon is in the middle of rewriting the Army Field Manual governing the treatment of prisoners. The Administration has maintained that the guidelines for handing detainees don't have to be in line with Common Article 3, but the Court has just made that argument much more difficult to make.

President Bush told reporters he was willing to work with Congress to devise a legal court to try the detainees in Guantanamo. "I will protect the people," he said, "and at the same time conform with the findings of the Supreme Court." Now he'll have to figure out a new way to do both.