Fri, Jul 02, 2004 - Page 9 News List

The US wins in the Supreme Court as Bush loses

The justices in the Guantanamo Bay case may be trying to send assurances to the rest of the world that the Bush administration does not speak for all the American people

By Michael dorf


Two rulings of the US Supreme Court this week rejected the sweeping wartime powers claimed by President George W. Bush.

In the case of Yaser Hamdi, the court renounced the administration's claim that military authorities could indefinitely hold a US citizen as an "enemy combatant" without ever providing him with an opportunity to contest the basis for his detention before a neutral decision maker.

And in a case brought by 14 foreign nationals, the court cast aside the government's argument that because the US Naval Base at Guantanamo Bay is nominally under Cuban sovereignty, US courts lack jurisdiction to entertain legal claims brought by persons who had no say in where the US military chose to detain them. Although nowhere mentioned in either case, the scandalous treatment of Iraqi prisoners at Abu Ghraib and the revelations that high-level government lawyers prepared confidential memoranda authorizing torture, likely played a part in the justices' reasoning.

The administration essentially said, "trust us to do what's right."

Clearly, the court thought that such trust had not been earned. Another unspoken consideration may have been at work in the Guantanamo Bay case, which has garnered considerable international attention.

In recent years, a majority of the justices of the Supreme Court have articulated a multilateralist view of US law that stands in marked contrast to the unilateralism of the Bush administration. For example, in a 2002 Virginia case, the high court ruled that the execution of the mentally retarded is forbidden by the US Constitution as "cruel and unusual punishment."

While most of the Court's analysis focused on domestic considerations, the justices also invoked a legal brief filed by the EU that described the overwhelming disapproval of the practice in the world community.

Likewise, in last year's ruling striking down a Texas prohibition on same-sex sodomy, the Court cited a 1967 Act of the English Parliament and a 1981 ruling of the European Court of Human Rights.

These justices regularly travel to colloquia on comparative constitutional law and see themselves as part of an international community of high court judges. It cannot have escaped their notice that to uphold indefinite detention of foreign nationals without judicial process would have made them virtual pariahs on the conference circuit.

I do not mean to suggest that the justices decided the Guantanamo Bay case as they did so that they would be toasted at their international cocktail parties. I contend that their concern for world opinion -- if that concern played the role I am suggesting it did -- was for their country, not for themselves. In less than four years, Bush and his advisers have cast aside much of the longstanding bipartisan consensus under which the US works through and with multilateral institutions like the UN.

Alarmed by this dramatic volte-face, the majority of justices in the Guantanamo Bay case may be trying to send assurances to the rest of the world that Bush does not speak for all Americans, not even the ones who put him in office in the first place. Of course, neoconservative critics of the high court will see in this explanation the confirmation of their worst fears.

Here are judges, they will say, who do not understand that they have no legitimate qualifications to act as agents of US foreign policy, a job committed by the Constitution to the president and (they may grudgingly admit) Congress. Yet the high court has considered cases with implications for foreign policy before.

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