The Bush administration will not simply go forward with its policies on detainees and prosecuting the "war on terror," as though the
Hamdan decision was never rendered. Instead, the Bush administration will rely on his Rubber Stamp Republicans to comport policies under compliance with the
Hamdan decision via new legislation.
Balt.Sun:
President Bush said yesterday that he would work with Congress to redraft the first military tribunals since World War II, and lawmakers in both parties signaled that they would lend support.
Rubber Stamp Republicans to the rescue!
Before the opinion had seemingly been released, several members of the Republican Party took the initiative to say what the
next steps would be.
Senator Lindsay Graham:
"The Supreme Court did not require these people to be let go. They simply said, 'If you want to try them, Mr. President, you need to get Congress involved.' I agree," Sen. Lindsey Graham (R-S.C.), a former military lawyer, told CNN.
"Once we do that," he added, "I think this problem will be behind us."
Sen. Specter also announced a hearing on July 11th to address the topic and introduced S.3614, the 'Unprivileged Combatant Act of 2006'. Sen. Warner also plans to hold hearings in the Armed Service Cmte in September.
Specter's remarks from the Congressional record:
Knowing, or thinking that, the administration's military commissions would be struck down because they did so little and had no real relationship to due process, we prepared legislation.
I had it put in final form last week when we considered the Department of Defense authorization bill, and one Senator did talk about legislation. I considered offering it at that time but decided that it was not a good time to do so. But we have it ready to go, ready for introduction.
Specter offers some details on the legislation's specifics:
This bill provides for two divisions. One is for the people who are charged with specific offenses. We retain the description of a military commission. We provide that there would be three officers on the commission, one president--a presiding judge from the Judge Advocate General's Office. Also an attorney will be provided for the accused, there will be competent evidence, there will be cross-examination and a unanimous verdict.
In the event of the use of classified information, we prescribe that the provisions of the Confidential Information Protection Act would govern, which is a statute which has been used in our courts for many years, which authorizes the presiding judge to sift through the information and make available to the defense whatever is appropriate and not classified. And if it is classified, then to make it available at the discretion of the judge to the attorney.
The attorney for the accused would be cleared through regular channels to deal with classified information so that we would be protecting the classified information by having it viewed only by someone authorized to take a look at it, so that the defense lawyer would be able to use it in the defense of his client. That is not a perfect situation, but that is the way we have dealt with confidential information under the so-called Confidential Information Protection Act.
In our legislation, we also deal with the enemy combatants. These are the individuals who have been detained at Guantanamo under an arrangement where there is no limit as to the length of their detention. That has caused considerable angst, considerable objection. But it is a very difficult matter. When we are in a war, fighting terrorists--and we should never lose our focus that we are in that war and that there are continuing dangers and we have to protect Americans--until somebody has a better idea, they are going to be detained. Some have been released and some of those released have been found on the battlefields killing Americans, so the detention of enemy combatants is an ongoing issue.
Our legislation provides that there would be a classification tribunal so that there would be a review of their status, to make a determination on a periodic basis that they continue to be a threat to the United States, either on the continent or because they will go back and fight a war. We provide for an attorney, again, an attorney who would be cleared to view classified information.
The issue of evidence is much more difficult because these enemy combatants are frequently taken into custody in a battlefield situation where competent evidence is not present, so we allow for hearsay.
In the Supreme Court opinion, if there is a showing of necessity, there is leeway granted in terms of defining sufficient due process. The Supreme Court found, for example, that the President had demonstrated sufficiently that there could not be trials in the U.S. Federal district courts, so ruling that out was fine. It was acceptable. And leeway, too, for some deviation from all of the generalized rules might be acceptable. The Supreme Court really didn't reach the issue of granting leeway because they didn't have a specific situation, but there would have to be a showing of necessity, a showing that no other system would work.
So in dealing with the enemy combatants, we are still struggling with how to handle the issue of indefinite detention, recognizing that they continue to be a threat.
[The Congressional record also includes the bill's full text as it currently stands. You can find it by searching for Specter's Congressional remarks on June 29, 2006.]
So, that said, it's clear that some practices will change as a result of the Hamdan decision. Though skepticism is surely warranted, I very much doubt we'll be seeing a dismissive presidential signing statement if Specter's legislation passes. Anything else wouldn't have ample constitutional foundation and could get the administration back into the same dilemma which resulted in Hamdan.
Regardless, though, there will be ample debate in Congress. The opportunity is too good for Rove and the Rubber Stamp Republicans to pass up. As the LA Times notes:
White House political strategist Karl Rove has said repeatedly that the party's fall campaign will hammer the message that Democrats operate with a "pre-9/11" worldview, and Republicans will attempt to paint Democrats critical of military tribunals as being soft on terrorism.
Bloomberg likewise turned shit into shinola:
President George W. Bush, rebuked by the Supreme Court for his anti-terror policy, may try to use a major legal setback to win a political victory.
...
Congress will give Bush ``a win because he was in his rights,'' said Senator Trent Lott, a Mississippi Republican. ``It could be a victory for him, and certainly the American people will be outraged again by the Supreme Court.''
Yes, the same Supreme Court which put him there in the first place.
We've already heard Republican attack dogs lumping Democrats and Al Qaeda together. National Review Online called the decision "an outrage" and that the Court has "effectively signed a treaty with al Qaeda for the protection of its terrorists." Expect this to continue over the coming months from pundits short on sound, logical analysis and quick with slander. This isn't going to be resolved until September or even October, giving Republicans an opportunity to emphasize this as a 'patriotic,' 'strong on defense,' partisan issue. Showboating, soap opera politics. To the extent that Democrats allow them to control the message, they'll succeed.
Update [2006-6-30 18:51:52 by jorndorff]: The WaPo quotes Sen. Graham (R-SC):
"There is a strain of legal reasoning in this administration that believes in a time of war the other two branches have a diminished role or no role," Sen. Lindsey O. Graham (R-S.C.), who has resisted the administration's philosophy, said in an interview. "It's sincere, it's heartfelt, but after today, it's wrong."
This line of thinking has always been wrong and yet Congress has acted as though it weren't. Republican majorities in both houses of Congress have sought to do very little in the way of holding this president accountable, even outside of Iraq/Afghanistan. In the rare occasion that it does seek to constrain the executive, it's been quickly put back in its place. Congress passes a ban on torture. The executive isses a signing statement negating it. Congress, in response, does nothing.
--Armed with a rubber stamp and catchy-yet-superficial quips, they are (and will remain) Rubber Stamp Republicans.