Deborah Pearlstein is a visiting research scholar at the Woodrow Wilson School of Public and International Affairs at Princeton University. From 2003-2007, she was director of the U.S. Law and Security Program at Human Rights First.
The Supreme Court's decision yesterday in Hamdan v. Rumsfeld, holding that the Guantanamo Bay military commission trials were unlawful by design, is by any standard a blockbuster. In a solid 5-3 majority opinion written by Justice John Paul Stevens, the Court ruled that the commissions violate the Uniform Code of Military Justice and the Geneva Conventions. To the prevailing post-9/11 mantra of Inter arma silent leges ("laws fall silent in times of war"), the Court, speaking in the voice of its sole remaining military veteran, issued a clear response: Not so fast.
Next week, the Senate Judiciary Committee will hold hearings on the legality of a secret domestic surveillance program authorized by President Bush in 2002. Senators are set to examine the Attorney General on the administration's sweeping theory of its own power, by which the president can ignore acts of Congress when they don't comport with his sense of the country's national security needs. This is the same theory advanced in the 2002 “torture memo” drafted by U.S. Department of Justice lawyers as a way to avoid criminal laws banning torture.
Over the vigorous opposition of human-rights groups and military leaders, senators passed an amendment to the defense authorization bill last week that purports to limit the rights of detainees held by the United States at its naval base at Guantanamo Bay, Cuba, to challenge in U.S. federal courts the legality of their prolonged detention on the base. According to the amendment's author, Republican Senator Lindsey Graham, the provision -- later amended in a hastily-reached compromise with Democratic Senator Carl Levin -- is intended to limit the amount of litigation filed by U.S.-held detainees that Graham maintains has clogged up the federal courts.
Last week's vote in the Senate in favor of a measure banning the use of cruel, inhuman, or degrading treatment by any agency of the United States government was the most dramatic step Congress has taken to rein in executive power since the terrorist attacks of September 11, 2001. The amendment, put forward by Senator John McCain, was supported by more than two dozen retired field and flag officers of the U.S. military -- including former chairmen of the Joint Chiefs of Staff Colin Powell and John Shalikashvili -- and embraced overwhelmingly (an extraordinary 90-9 margin) by bipartisan leadership in the Senate.
“[W]hile unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint.”
-- Furman v. Georgia, 408 U.S. 238, 467 (1972) (Rehnquist, J., dissenting) (citation omitted)