Split Court Press

The Washington Post seems to overstate the strength of the Supreme Court decision in the Hamdan v. Rumsfeld case regarding the military trials at Guantanamo Bay in calling it a "stunning rebuke" (likewise the NY Times called it a "sweeping rebuke"). No doubt the language of the majority opinion was strong and this was a much-welcomed decision, after a string of generally conservative 5-4 rulings, that finally applied some brakes to the White House unitary executive steam-roller. But it should not be overlooked that, had Roberts not been recused from the case (he had already ruled in favour of the government in his lower court seat), the decision would have been once again 5-4. The division was along the expected lines. It also has become quite clear that Kennedy has now assumed the role of the swing vote on the bench.

Naturally, the crusty band of police state curmudgeons that comprises Scalia, Alito and Thomas argued that the Supreme Court had no jurisdiction in requiring the White House to obey the law -- any law -- in time of war and, further, that such required adherence would be "dangerous." In other words, the same old refrain that we've heard about law in general emanating from the White House lately.

This decision was expected by the White House, which has so far failed to fully populate the Court with the required number of acolytes ... yet. They knew they would likely face a 5-4 decision in the case and, after Congress passed the Detainee Treatment Act in December, hoped that Hamdan's habeas corpus petition would be tossed, arguing for that. It wasn't. The White House has been systematically avoiding such cases in the High Court and is the likely reason why the Padilla case was abandoned in favour of a criminal trial on charges completely unrelated to those on which he was being held for years. But Breyer's decision practically encourages Bush to seek proper and unbridled authority from Congress.

Nothing prevents the President from returning to Congress to seek the authority he belives [sic] necessary.

Bush will do this and the wheedling Congress will grant all that is asked. And, as we well know, there are no limits to the authority Bush thinks he needs.

Don't expect this decision to change much of anything on the ground in Gitmo.