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Published: Monday, 7/3/2006

Jerking Bush's chain

The U.S. Supreme Court's rejection of the use of military commissions to try detainees at Guantanamo Bay, Cuba, is more about reining in presidential power than it is about the fate of the prisoners there.

The 5-3 decision is an explicit message to President Bush that he cannot run roughshod over Congress and the courts in waging what he calls the war on terrorism.

If Mr. Bush had consulted with Congress, or even listened to the advice of his military lawyers, the court's stinging rebuke might not have been necessary.

But this is a president who has been more than a little reckless in expanding his official powers after 9/11, to the extent that many Americans view him more as a dictator wannabe than civilian commander in chief of the military, as the Constitution provides.

Even Mr. Bush's fellow Republicans in Congress recognize the impact of the ruling. As Sen. Lindsey Graham (R., S.C.) told the Washington Post, "There is a strain of legal reasoning in this administration that believes [that] in a time of war the other two branches [of government] have a diminished role or no role. It's sincere, it's heartfelt, but after [the decision] today, it's wrong."

Two years ago, in a similar vein, the high court ruled that the administration did not have unlimited authority to detain terrorism suspects indefinitely, as Mr. Bush maintained.

In last week's decision, the court held that the military tribunals Mr. Bush created by executive order are unconstitutional, and that the administration must pay heed to international rules, including the Geneva Conventions on treatment of prisoners.

In practical terms, the past use of torture in interrogation of some Guantanamo detainees could mean that those prisoners will never be brought to justice in a civilian or military court. If they cannot be detained indefinitely, they might have to be released, thanks to the President's legal impetuousness.

Indeed, the military's top Judge Advocate General (JAG) officers had warned that use of military commissions - reportedly set up at the urging of Vice President Dick Cheney and his staff - would come back to bite the administration.

As retired Rear Admiral Donald Guter, the Navy's top lawyer at the time, put it, "We argued that this would come back to haunt us and it would taint the military justice system. We were warning that you would have to be careful to provide basic protections."

The concept of due process of law, including the right to a fair trial, is ingrained in the Constitution and American law, both civil and military.

Mr. Bush overreached in trying to abrogate these basic rights, but the Supreme Court has rudely - and rightly - jerked him back to reality.

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