I have more to say about ex post facto attempts to make legal the numerous crimes Bush has committed but first the Hamden decision to date: in Hamdan v. Rumsfeld, handed down June 29, the United States Supreme Court ruled that George W. Bush exceeded his authority. Neither the Congressional Authorization for the Use of Military Force, the Uniform Code of Military Justice (UCMJ), nor the so-called inherent powers give Bush the legal authority to set up military tribunals at Guantanamo.
For those of us who have maintained for some time now that Bush is a "war criminal" —who has breached both international conventions and US criminal codes —the high court's decision is vindication. In effect, SCOTUS has said that for a period of some five years, the Bush/Rumsfeld/Cheney gang has been guilty of violating the Third Convention on treatment of prisoners of war as well as a US federal law of 1996 which binds the US executive to those relevant parts of the Geneva convention.
Predictably, a conspiratorial GOP is scrambling to let Bush off the hook —though he is most certainly guilty of violating US and international law. Sen. John McCain, R-Ariz., says that Congress will reverse the Supreme Court's declaration and Sen. Arlen Specter is already at work on the language of the bill. I submit to Sen. McCain that Congress does not have the authority to reverse a decision of the supreme court; it can only pass a new law addressing its objections. The effect of any new law is of that date; it cannot be retroactive in its effects. There is no precedent for excusing culprits ex post facto!
Ex post facto is latin for "from something done afterward" or "after the fact". Ex post facto law is retroactive. On it its face, this is unfair but more importantly, it is blatantly unconstitutional
Bush and his GOP co-conspirators are routinely at odds with the supreme law of the land but also simple common sense. Because ex post facto laws change —after the fact —the legal consequences of acts already committed, the ex post facto law becomes an instrument of oppression and tyranny. Hoping to crack down on dissenters, for example, a tyrannical government need only make the voicing of certain opinions a crime but only after they've been printed, broadcast or spoken. Such a government need only make the law, round up the usual suspects, and prosecute them for actions that were legal at the time of their commission. Conversely, the dictator-in-chief in such a society, need only subvert the very foundations of law and order itself and demand that his actions be made legal —after the fact! Convenience is the enemy of the rule of law.
No bill of attainder or ex post facto Law shall be passed.
The notion that Congress can somehow exculpate Bush for the crimes he's already committed is not merely absurd, it's seditious and dangerous —a short road to tyranny and dictatorship.
To her credit, Sen. Dianne Feinstein has refuted every dubious point made by Sen. John McCain in defense of this pernicious strategy. She has shown the Democrats the way. If the Democratic party is to have any future at all, it must begin now to oppose with its every fiber a creeping, insidious Bush dictatorship. Allowing even a bright and capable leader the rope he needs to simply improvise his way through office is nothing less than the death of the rule of law.
An update from the Washington Post:
Around the blogosphere, some great comments. Here's a excerpt from Rubicon, but I recommend the entire post:
Sunday, July 2, 2006; 4:12 PMWASHINGTON (Reuters) - Senior Democrats called on Sunday for a broader review of whether President George W. Bush had overstepped his war powers after the Supreme Court struck down his administration's Guantanamo military tribunals.
Seeking to capitalize on the sharpest judicial rebuke yet of Bush's tactics in the war on terrorism, Democratic critics said the ruling opens the door for a closer look at complaints he had improperly bypassed Congress in other areas as well.
The Supreme Court ruled on Thursday that the military commissions created by Bush to try foreign terrorism suspects held at the U.S. prison at Guantanamo were unlawful and violated the Geneva Conventions. ...
The big question now is how Bush and his Republican Congress will respond. So far, they seem to think that they can retroactively legalize what Bush has done. That will not be easy to do. Hamdan raises the stakes: it's war crimes we're talking about.A little legislative fix won't erase war crimes, though a few resignations and impeachments would certainly be a move in the right direction. It's a hopeful sign that Democrats are not the only people now talking about the seriousness of the situation. Andrew Sullivan has written thoughtful posts on the subject (here and here), and he points to an analysis of the case by the Cato Institute that emphasizes "command responsibility" and military "orders." Editorial boards that have until recently treated Bush's authoritarian claims with deference—including the Washington Post and the New York Times—have changed their tunes.The Existentialist Cowboy
Many more voters are becoming disillusioned, too, and Congress may well change hands in November. A new Los Angeles Times/Bloomberg poll shows a 14-percent advantage for Democrats, with the gap up to 26 points among women. With a Democratic Congress, we might even see the legislative branch join the judiciary in a drive to restore nonmonarchical government.