Like Professor Schaff, I have not had time to review the Supreme Court decision Hamden v. Rumsfeld. Having had my nose pointed at classic constitutional law cases for several weeks now, its more than I can bring myself to do. But it does seem that the MSM spin machine has been working at full throttle on this one. A piece in the Washington Post put it this way:
The Supreme Court has struck at the core of his presidency and dismissed the notion that the president alone can determine how to defend the country.
That core stuff was a bit over the top. David B. Rivkin, Jr., and Lee A. Casey, writing in the Wall Street Journal, have a thorough and clear analysis. The Court ruled that military commissions cannot be used, as things presently stand, to try Hamden (Osama's driver). On the other hand,
all the justices agreed that military commissions are a legitimate part of American legal tradition that can, in appropriate circumstances, be used to punish individuals captured in the war on terror.
Moreover the Court leaves the President two options. First, he can, in line with the Uniform Code of Military Justice, determine that it would be impractical to hold a conventional court martial. If the President does so, and his justification is convincing, the commissions we wants would be permissible. Second, he could go to Congress for additional authority. Since the Court was largely reading federal statutes (it's not clear how or if the Constitution affords Hamden any protection), it would be unlikely to challenge an act of Congress in this matter.
The President has suffered a setback, but if he takes either of the above avenues, his position will likely be strengthened.
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