War Court: Justices become Players in the War on Terror

How do you see the balance of power among the president, Congress, and the Supreme Court? What is important about that balance? Should the Supreme Court affect matters of war?

The Supreme Court reiterated the balance of power and redirected the war on terror with its decision in Hamdan v. Rumsfeld.

The Court found 5 to 3 that the Bush administration violated treaties that establish human rights for prisoners of war. These treaties, called the Geneva Conventions, were signed by previous presidents and ratified by previous Senates. The administration breached these international laws by using military courts that do not observe typical rules of procedure - called military commissions -- to try Guantánamo Bay detainees.

Further, the Court set up minimum procedural protections for detainees and ruled that neither the president nor Congress could do away with those basic rights.

Legal theory

The ruling rejected the Bush administration’s assertion that they have the power to hold and punish suspected terrorists, whom they labeled as enemy combatants.

The Court dismantled the administration’s legal theory that the commander-in-chief has the right to conduct the "war on terror" as he sees fit, as if it were a declared war between nations. The ruling also challenged the administration’s use of Congress’ authorization to "use all necessary and appropriate force" against individual terrorists after September 11th. Instead, the Court encouraged Congress to be specific about what the president can and cannot do.

Some legal scholars say that the administration’s domestic surveillance program would have been limited or prevented by a more precise Congress. However, some legal theorists argue that the Hamdan decision does not affect the surveillance program at all, pointing to a 2002 appeals court decision that found that Congress could not infringe on the president’s executive responsibility to obtain foreign intelligence.

At issue is presidential power and Congress’ influence on war activities. We see that the Supreme Court can also affect war, holding to the constitutional definition of the president’s commander-in-chief role. Article II of the Constitution limits the president’s power to leading the armed forces after the Congress declares war.

Presidential power

The framers of the Constitution intended for the legislative branch to be the most powerful actor in the federal government with the president empowered to execute the laws, not create or deviate from them. Because the founders were clearly concerned about the idea of a king with elite powers, they did not grant them to the president. For more on this, listen to WomenMatter’s interview with Geoffrey Stone, Constitutional scholar from the University of Chicago.

However, over time, the role of the president has become larger and more powerful. A forceful executive branch certainly did not start with the G. W. Bush administration.

The application of the Constitution evolves over time, and most Americans alive today have witnessed the increasing power of the executive branch.

The new Court

Justice John Paul Stevens wrote the majority decision, which was supported by Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsberg, and Stephen G. Breyer. Justices Samuel L. Alito, Clarence Thomas, and Antonin Scalia dissented.

The new Chief Justice, John G. Roberts, was not allowed to participate in the case because he had voted to uphold the commissions while serving on the Court of Appeals District of Columbia Circuit.

The Roberts Court has not fully revealed its character since the two new members did not participate in all of this season’s cases. But with issues like affirmative action and abortion already on the docket for next season, which starts in October 2006, the new court is about to make its debut.

What do you think?

To what extent should the Supreme Court and Congress influence the war on terror? Do you see the branches as balanced or off-balance? How should the three branches work together to form US policy on terrorism when terrorism has threatened nations for ages?

Your input matters

Your representatives DO care what you think. Especially now -- 2006 is an election year and many representatives will be looking to reconnect with their constituents. Let your congressmen and women know what you think! Give your senators a piece of your mind! To find your reps, click here.

About WomenMatter

WomenMatter is a place to discuss life issues with other women. We don’t want to wedge women apart, but rather bring them together to dialogue. To participate in our blog, click here.

WomenMatter is the place where we can take one issue at a time, match what we do about it every day of our lives to the facts of the bigger system that we all live in and recognize that every idea for making it better has tradeoffs.

WomenMatter is dedicated to empowering women to participate in the political process. To do this we have invested in the most in-depth NONPARTISAN information, because we trust each woman to make up her own mind.

• We track nine issues every week and update this website several times a week.
• We launch after school GirlsMatter Clubs in middle and high schools to grow the next generation of politically aware women through a full curriculum and startup kit on girlsmatter.com.
• We do continuous research to make sure that we are meeting the needs of women across the country of all ages, races, incomes, preferences, and religions.

We offer all our services free of charge without memberships or subscriptions. To help us maintain this work - not just in election years but as a continuing part of women’s lives - please make a tax deductible donation, click here.

Posted on: 7/9/2006