The Hamdan dissents: US Supreme Court justices argue for presidential dictatorship

All three dissenters—Clarence Thomas, Antonin Scalia and Samuel Alito—supported the administration’s claim to virtually unlimited presidential powers. A fourth, Chief Justice John Roberts, recused himself from the high court proceedings because, in his previous capacity as a federal appeals court judge, he had already supported the administration’s position in the Hamdan case.

The Hamdan case’s significance is not so much in its expressed holdings—that any war crimes trial of Guantánamo Bay detainee Salim Ahmed Hamdan, allegedly a driver for Osama bin Laden in Afghanistan, must meet the due process standards of a military court martial—but in its implicit repudiation by the majority on the court of the claimed legal justification for much of the Bush administration’s exercise of unbridled executive power in the name of waging an indefinite “war on terror.”

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The principle dissent was written by Associate Justice Clarence Thomas, joined by Associate Justices Antonin Scalia and Samuel Alito. (Alito recently replaced retired Associate Justice Sandra Day O’Connor.)

To underscore the vehemence of his opposition to the majority ruling, Thomas took the unusual step of reading his dissent from the bench.

What is most notable is the brazen fashion in which Thomas sets out a blueprint for military dictatorship, a system of “laws” where the president determines the scope of his own war powers and then is free to use them to establish military commissions, setting whatever procedures he chooses, and subject whomever he chooses to rigged trials for whatever he claims to be a war crime, with sentences up to the death penalty.

Ignoring the role of the Supreme Court as a check on presidential power, Thomas chastises Stevens for “flout[ing] our well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs.” Underlying this purported obligation to defer to presidential decisions are, Thomas argues, “the structural advantages attendant to the Executive Branch—namely, the decisiveness, activity, secrecy, and dispatch that flow from the Executive’s unity.”

Here, in a nutshell, is the nub of the deeply anti-democratic argument. The Hamdan dissenters reflect sentiments widely held by right-wing elements in the US ruling elite: to confront the growing domestic and international opposition to the consequences of its policies, the US government must free itself from the baggage of the legislative and judicial branches. It must act in “secrecy,” with “decisiveness” and “unity” of purpose, unencumbered by opposing viewpoints voiced in other branches of government, much less those expressed within the population as a whole.

The use of military commissions, such as those proposed by the Bush administration, which deny the accused independent judges, access to evidence, and even the right to attend the trial, flies in the face of the Fifth Amendment guarantee that “No person shall... be deprived of life, liberty, or property, without due process of law.”

Because there is no constitutional provision or act of Congress which authorizes the president to establish military commissions, Thomas adopts his doctrine from what he calls “the common law of war,” which, in turn, he claims “is derived from the experience of our wars and our wartime tribunals,” as well as “the laws and usages of war as understood and practiced by the civilized nations of the world.”

Setting aside the oxymoron of war “practiced by the civilized nations of the world,” Thomas here sets out a doctrine that allows the executive branch to ignore both domestic and international law, instead cherry picking its “rules” from “the experience of our wars and our wartime tribunals.”

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http://wsws.org/articles/2006/jul2006/supr-j06.shtml