Bush Loses in the Supreme Court and America Wins

Two rulings of the United States Supreme Court this week rejected the sweeping wartime powers claimed by President Bush. In the case of Yaser Hamdi, the court renounced the Administration's claim that military authorities could indefinitely hold a U.S. 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 fourteen foreign nationals, the court cast aside the government's argument that because the U.S. Naval Base at Guantanamo Bay is nominally under Cuban sovereignty, American courts lack jurisdiction to entertain legal claims brought by persons who had no say in where the U.S. 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 American 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 American 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 European Union 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.