Kevin Drum, referencing the always wrong
Marshall Wittman, says
Hamdan puts Dems in a tough political spot. He is wrong. And Neal Katyal, the attorney who argued on behalf of Hamdan in the Supreme Court, explained why in
this C-Span broadcast of a Georgetown Law forum.
Essentially, Katyal explained that the reason the Bush Administration insisted on its military commissions was because the Uniform Code of Military Justice and Article 3 of the Geneva Convention preclude the use of coerced evidence (thus, evidence resulting from torture can not be used.) So, for the GOP Congress to give Bush what he wants they have to approve of torture. MORE
Jack Balkin wrote a great piece on
Hamdan:
If Congress decides to alter the UCMJ and override the Geneva Conventions, the President can have his military tribunals with procedures as unfair as he wants. But that would require that Congress publicly decide (1) that it no longer wanted to abide by the principle of uniformity announced in the UCMJ, (2) that it no longer required that military commissions abide by the laws of war, or, finally, (3) that Congress no longer considered the Geneva Conventions binding on the United States. Taking any of those steps is possible-- particularly the first two-- but doing so requires that Congress make a public statement to this effect and pass new legislation. The President, in turn, can withdraw the United States from the Geneva Conventions, but for political and military reasons alike, there is almost no chance that he would do that.
What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way. It is possible, of course, that with a Congress controlled by the Republicans, the President might get everything he wants. However this might be quite unpopular given the negative publicity currently swirling around our detention facilities at Guantanamo Bay. By forcing the President to ask for authorization, the Court does two things. First, it insists that both branches be on board with what the President wants to do. Second, it requires the President to ask for authority when passions have cooled somewhat, as opposed to right after 9/11, when Congress would likely have given him almost anything (except authorization for his NSA surveillance program, but let's not go there!). Third, by requiring the President to go to Congress for authorization, it gives Congress an opportunity and an excuse for oversight, something which it has heretofore been rather loathe to do on its own motion.
And it forces the GOP Congress to decide if it will again embrace and rubber stamp what Bush wants, including torture. And that is very good for Democrats. Drum and Wittman are wrong.