Hellblazer: Bush's Hamdan Problem

Hal on Bush's Hamdan Problem:

Nothing says 'America' like torture.

Following the Hamdan ruling by SCOTUS, C-SPAN aired a panel of legal and constitutional experts that I happened to catch the other day. The essence of what Neal Katyal said in his presentation, and to which Hal alludes, is captured nicely on the Georgetown Law Faculty Blog (emphasis mine):

Yesterday, Katyal debated Professor Yoo on NewsHour who feared that sources and methods would be revealed in trials. The courtmartial system has done a great job of protecting classified information, but there’s a deeper problem with Yoo’s argument: 95% of the evidence is the detainees’ own statements; most of the rest is videotapes from public broadcasts.

The only thing that might come into play is the source and method of interrogation: why did the detainees say these things? That’s what’s hidden by the “sources and methods” language; what the military commission system is about is allowing decisionmakers to consider evidence obtained by coercion. One reason we know this: When Padilla was finally indicted in federal court, he wasn’t indicted for the dirty bomb or other bomb plots. Administration officials, anonymously, told the New York Times it couldn’t charge Padilla with a bomb plot because he and others had been coerced through physical means into giving testimony. That wouldn’t have stood up in civilian trial or courtsmartial. But they’d charged Padilla’s coconspirator in the commission process using the very same evidence at almost the same time. If we feel the need to introduce such evidence into trial, we should do so by clear congressional direction.

All of the experts pretty much concurred with this important point, and the fact that Congress could indeed draft, and with the control of both houses pass, legislation that would permit the Cheney Bush administration to try the alleged terrorists held in indefinite detention at Guantanamo Bay under some form of military commission that had its own set of rules. However, to do so in a manner that would be efficable with regards to actually convicting any of the alleged terrorists of any crime of substance, they would also have to explicitly include language in that legislation that permitted presenatation of "evidence" collected via torture; something that is explicitly precluded in military courts martial and the federal judiciary system by law, and something that the congress has already repudiated (by overwhelming majority). Additionally, the congress would have to repudiate the Geneva Conventions; they couldn't just re-write the UCMJ to omit their reference. The consensus opinion of the panelists was that neither the congress nor the administration would have the political will to venture down that path.

Abu Gonzales said, of the Hamdan decision:

What this decision has done is, it's hampered our ability to move forward with a tool which we had hoped would be available to the president of the United States in dealing with terrorists

Indeed, he is correct. Because the administration convinced itself that it could simply ignore the rule of law, and do whatever the heck it damned well pleased, it chose a course of action that was carefully designed to permit the use of "evidence" obtained via torture to be used against the alleged terrorists being held in Gitmo.

The Supremes have called BS on the administration's twisted interpretation of the president's authority as specified in the Constitution, and now the administration is left holding an empty bag of tricks with which to "deal with the terrorists". This is not the fault of the SCOTUS, as Abu and the administration's apologists would have you believe. No, the blame for the administration's hampered ability to "deal with the terrorists" can be laid squarely at the feet of the Cheney Bush administration.