Hulk Smash Puny SCOTUS!

by Kagro X

Glenn Greewald offers up a post that I'm guessing is meant to buck us "defeatists" up. The Bush "administration," Glenn assures us, is taking Hamdan seriously, and will be treading lightly from here on out. And if you don't believe it, you're a soft-headed dingbat:

There seems to be a common perception among many Bush critics -- one which is a not-very-distant relative of all-out defeatism -- that something as weak and unmuscular as a lofty Supreme Court ruling isn't going to have any effect on the Bush administration, and that they are just laughing at the idea that what the Supreme Court says matters. But that is simply not what senior Justice Department lawyers and senior administration officials are doing in the wake of Hamdan.

Me? Well, I'm inclined first to side with commenter Mike, who said:

The operative phrase is "Bush officials" facing danger, and not necessarily "Bush". Seems they were happy to throw NCOs under the bus for the Abu Ghraib deal. I'm sure the eavesdropping will continue, then some poor saps at the NSA will take a fall for going against "new policy that agrees with Hamdan", that surprisingly no one at the NSA had heard of. 

But Glenn has more to say on the point:

Anyone who suggests that that is a meaningless development and that Bush officials are unaffected by them has embraced a cartoon super-villain version of the administration which is just not real.

But just two paragraphs later...

For every extremist action undertaken by the radicals in the administration, there were high-level conservative political appointees telling them that what they were doing was illegal, that it was dangerous and radical, and that it could have serious consequences for them. But they opted to believe that might makes right, and that their superior might entitled them to act without limits of any kind, including those imposed by the law, because nobody was powerful enough to hold them accountable. That was true then, but it likely will not always be true.

"Likely?" That's it?

Glenn has been prudently reminding us that these things don't happen overnight. That this is "slow change" we speak of. But I have to ask, is it fast enough to roll the case up in the next two years? (Or less, if you think it likely that those who would have to lead the charge will lose their nerve as soon as the next election becomes visible on the horizon.)

So, is it "likely" that we'll have held the Bush "administration" accountable inside of a year to a year and a half?

Or is it more "likely" that we all end up with that same, lingering disappointment and vague feelings of nausea that rise up when we see it discarded, unresolved, on the ash heap of history, alongside the forgotten and decaying carcass of Iran-Contra?

The question, though, is what exactly makes it so silly to wonder whether the "administration" will simply push on, when Glenn himself tells us that they were warned explicitly, and yet did exactly that? Push on. Believing might makes right. Regardless of the limits of law. What are we relying on here? The "lighting never strikes the same place twice" theory?

Glenn explains why it's so "likely" that it can't happen twice.

They long ago lost the shield of popularity. The Supreme Court just ruled against them, and in the process, strongly insinuated that they may be war criminals and without any valid defenses to accusations of repeated criminal acts. Even their Congressional allies smell blood and are making threats and demanding concessions.

Which allies "smell blood?" Who's "demanding concessions?" What "threats" are being made?

Lindsay Graham? He won't even stand up for his anti-torture amendment, instead rolling over for Bush's signing statement, even with 89 other Senate colleagues on the record with him. Not even so much as a "Sense of the Senate" resolution to put it right. Meanwhile, he engages in this insane jurisdiction-stripping exercise with his fake colloquy.

Arlen Specter? Please!

Peter Hoekstra? He wasn't threatening to go public. Texas dem and emptywheel told us what the score was there. He was looking for leverage against those who might go public.

No, this "defeatism" is not so much  a reaction to a cartoonishly evil Bush "administration" that doesn't exist as it is a recognition that they consider it equally cartoonish to believe they must knuckle under to weapons that fire only scathing opinions.

Finally, there is this question: even if the "administration" does agree that Hamdan puts an end to their shenanigans, is putting a stop to it -- saying "this far, and no further" -- really "accountability?"

No, "theoretical foundations" are not "accountability." Enforcement is accountability.

And though Glenn assures us that...

[B]ehind their unprecedentedly fortified walls of secrecy undoubtedly lurk the most incriminating, still-concealed revelations yet, and it is only a matter of time before we learn of those. Bush critics seems to assume that Bush officials are almost divinely protected from any meaningful consequences from their behavior, but it's a very good bet, at this point, that that comforting assumption is not shared by Bush officials.

...still I can't help but wonder what soul-shaking fear we are to imagine the "theoretical foundations" eminating from Hamdan will strike in the hearts behind those walls.

In our excitement over the majesty of the law, let us not forget something more fundamental: that the "meaningful consequences" these "administration" officials need to fear are handed down in lowly trial courts. Until they are, the "theoretical foundations" are just that and no more.

Comments

[wigwam]

The mainstream press school like fish. It was so in the Watergate scandal. Almost nothing happened until Agnew made a speech that along with the right to report news came responsibility to do so accurately, and there'd be an accuracy standard for renewal for broadcasting licenses. Suddenly Watergate was news.

The Bush administration has come close to that threshold with its threats to prosecute top news organizations for "letting the cat out of the bag" regarding phone tapping and asset tracking, which we all know is bogus. Think of "tipping point". Think of "butterfly effect." Think of "shaky ground." Think of "thin ice." The "last straw" is neigh. There is no more slack!

And then everyone will realize that Hamdan was the majority's invitation to go for the jugular. They could have simply said that Common Article 3 of the Geneva Conventions applies, and per Article VI CA3 is the "supreme Law of the Land." But they didn't do that. Rather, they said that the Uniform Code of Military Justice is an act of Congress. And then they explained in detail why acts of Congress are not trumped by the Authorization to Use Military Force nor by the president's consitutional role as Commander-in-Chief, the only two defenses against FISA prosecution that Bush et al have been able to come up with.

Hamdan opens a window of opportunity that will last only until the demise of a member of that majority.

[DemFromCT]

Hmmm. Count me in with Kagro X as a lawnorder Dem. Moral/legal authority is great, But how many divisions does the Pope have?

The rhetorical and praactical answer lies in November. A majority opposition party with subpoena power is a credible enforcement threat. A credible impeachment threat would be better, but that would take both houses.

[DemFromCT]

The CW, same topic, from the WaPo and Dana Priest.

Rethinking Embattled Tactics in Terror War
Courts, Hill and Allies Press Administration

Accustomed to having its way on matters related to the nation's security, the administration is being forced to respond to criticism that it once brushed aside. The high court ruling rejected the White House's assertion that the president has nearly unlimited executive powers during a time of war, and now executive branch lawyers are reviewing whether other rules adopted after the Sept. 11, 2001, attacks on the World Trade Center and the Pentagon will have to be revised, especially those concerning the Geneva Conventions.

"Part of the consideration internally is how to move forward and if the [court] decision does apply more broadly," said White House spokeswoman Dana Perino. "We're weighing all the issues and taking a very careful look."

[Kagro X]

Part of my question about their question is, "apply more broadly" than what? Than tribunals? Or than Hamdan himself?

And if we're going to ask the enforcement question, we need to ask all enforcement questions. Like this one: who serves a Congressional subpoena? And who enforces contempt charges if it's ignored?

[emptypockets]

It's not a cartoon to say that this administration (and possibly their whole damn party) sees its sins not in its deeds but in its getting caught. They may go on double-secret probation but they won't change their ways.

It is kind of a cartoon to say we are going to drop a giant anvil on them this November and then everything will be smurfy (wait, wrong cartoon). If we lose in 2006, something other than "from now on, they'll be chastened and prudent" is needed as a back-up plan for 2007.

[emptywheel]

FWIW, I'll repeat a point I've been making. Hamdan's first salutory effect will be on men and women carrying out Bush's illegal acts. While I don't doubt that Bush and Cheney will escape the consequences of Hamdan for some time, I expect they will have more difficulty finding people to carry out their will. As individuals figure out that Hamdan means they are subject to existing rule of law (whether it be Geneva or FISA), they will opt not to participate. We may see some courtsmartial, or some NSA firings, as people trying to follow the law get accused of insubordination. And, hopefully, that effect will begin to climb up the ranks, as officers realize they can't expose their men and women to prosecution. It may not--after all, at least with Abu Ghraib, only the grunts got punished. But I do suspect Hamdan will have a gradual effect which might bring some attention to the illegality of much of what Bush has authorized.

[DemFromCT]

Hamden's first salutory effect:

In Big Shift, U.S. to Follow Geneva Treaty for Detainees

In a sweeping change of policy, the Pentagon has decided that it will treat all detainees in compliance with the minimum standards spelled out in the Geneva conventions, a senior defense official said today.

The new policy comes on the heels of a Supreme Court ruling last month invalidating a system of military tribunals the Pentagon had created to try suspected terrorists, and just before Congress takes up the question of a replacement system in a Senate Judiciary Committee hearing today.

[DemFromCT]

more:

Unlike four years ago, when the Bush administration formulated its plans for military commissions at Guantánamo Bay, Cuba, the debate now seems certain to include the views of the military’s most senior uniformed lawyers, whose objections were brushed aside earlier.

John D. Hutson, a retired rear admiral who was the top uniformed lawyer in the Navy until 2000, is one of a number of retired senior military lawyers who have filed briefs challenging the administration’s legal approach.

“We’re at a crossroads now,” Admiral Hutson said. “We can finally get on the right side of the law and have a system that will pass Supreme Court and international scrutiny.”

[DemFromCT]

finally:

But the lawyers’ sense of vindication at the Supreme Court’s 5-to-3 decision is tempered by growing anxiety over what may happen next. Several military lawyers, most of them retired, have said they are troubled by the possibility that Congress may restore the kind of system they have long argued against.

[Kagro X]

So the Pentagon "has decided" to acknowledge CA3. That's nice.

Does this mean Tom Cruise is going to get them to put the "Code Red" in the field manual, too?

[Mimikatz]

But what is unspoken here is that none of this is going to apply to the CIA and its black sites.

I think Guantanamo is becoming a real liability for the Administration in that it is a running sore of bad PR, but no one knows what to do with these guys and no one wants to be the one who released the next train or subway bomber. At the same time, they aren't getting any info out of these people and at least some folks are beginning to see the limited value of torture. You get things like Abu Zubaydah saying stuff under torture about malls and banks and sending authorities off in a tizzy, and then a clever and skilled interrogator, using cajolement and feigned familiarity, gets him to give up Jose Padilla and one of the 9/11 masterminds. And of corse if the prisoners know nothing, torture won't get you what they don't know in the first place, only more fabricated scenarios. The people at Guantanamo for the most part are low-level soldiers or more commonly people in the wrong place at the wrong time when someone wanted to collect a bounty.

The real issues continue to be the supposed "high-value" targets at the balck sites, whom the impulse to torture is irresistible to "men of action" like Bush and Cheney and Rumsfeld, and the various forms of spying, which they are counting on the American people not to mind too much.

[emptywheel]

I'm not sure I agree, Mimikatz (though I'm not placing bets). The CIA's lawyers have been as active as any in the Armed Services, trying to make sure they're legally justified in doing the things they do. Robert Grenier was demoted precisely because he questioned the legality of torture and renditions. So long as people at that level are questioning the legality of these actions, there is the possibility (one would hope the likelihood) that those carrying out the orders will balk.

I know it's not the answer, Kagro. But having men and women refuse to participate, even if it's only out of CYA, will diminish the number of people disappeared and tortured. And that's a worthy interim step, until the time we have our impeachment.

[JohnLopresti]

A.L. is discussing some of these issues.

Judge Taylor has taken a case under advisement, yesterday.

I think ew is right, that information will appear from concerned people and help the administration wind down some of the most adventuresome extremes.

The Pottery Barn rule seems to be keeping the administration involved perhaps more deeply than it would like.

Though the current time fits the classical beginning of the mid second term personnel bail out that affords such elected officials a third opportunity to restructure, I doubt that effect will appear, as this president seems to have the indigenous TX brand of politics exalted.

[Kagro X]

Notice, too, John, that even post-Hamdan, Justice Department lawyers are still telling federal judges that the NSA spying is justified by the president's "inherent powers" and by the AUMF.

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