Hamdan vs. Rumsfeld

Victory for the constitution! Defeat for the royalists!

Addressing the substance of Hamdan vs. Rumsfeld, the Supreme Court found that the military tribunals set up to review the cases of prisoners held at Guantanamo are unconstitutional, requiring review of their cases by congressionally established courts. It is with a sense of irony that I note these are the same tribunals set up by the Bush Administration after Hamdi vs Rumsfeld came down holding that the President could not order people held indefinitely without court review. Needless to say, by finding that the President has overstepped his constitutional authority the Supreme Court has delivered a serious blow to the unitary theory of executive power held by the Bush Administration.

But, according to this teaser from Marty Lederman at SCOTUSblog this holding isn't the most important one in the decision:

As I indicated here, the holding that the military commissions are unlawful -- although of enormous significance -- is hardly the most important holding of the Court today in Hamdan. At least three other holdings are likely of greater lasting significance:

1. That the President's conduct is subject to the limitations of statute and treaty.
Additionally, in the process of the decision, the court dismissed the government's argument that when Congress passed the AUMF (Authorization for Use of Military Force) it silently amended the law to allow military tribunals in violation of the Uniform Code of Military Justice.

In the Slashdot parlance, IANAL, but in the context of the NSA spying scandal these two findings are facially important. The Supreme Court has held to be true what we as Americans have known since the revolution: That no American is above the law. There is no American King, and thank god. It seems, to my unlawyerly mind, that these facts demolish any justification the Bush Administration has for calling the NSA spying program lawful, since they directly attack the two arguments the Administration has left. (1) The Congress did not silently amend FISA to allow for the NSA program when the enacted the AUMF. (2) The Congress has the authority to regulate the actions of members of the Federal government, including how the President executes his Article II responsibilities.

You wouldn't have thought those two points would be contested, but this is the Bush Administration, and they have a radical agenda.

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