Court rightly reins in Bush's war powers

WHAT IS WAR POWERS????? SEE BELOW:

Court rightly reins in Bush's war powers

Robert A. Sedler
detnews.com
T he U.S. Supreme Court Thursday handed the Bush administration a stinging defeat in its assertion of presidential power in the "war on terrorism." In a 5-3 ruling, the court appropriately insisted that Congress has the exclusive power to create laws governing U.S. military conflicts.

The structure and procedures of the military tribunals violate fundamental principles of fair trials found in the military justice code and the 1949 Geneva Convention on treating prisoners of war. Without congressional authorization, the president violated constitutional separation of powers, the court ruled.

President Bush's lawyers have told him repeatedly that, as commander-in-chief, he has broad powers to wage the war on terrorism. They were mistaken. The president's power as commander-in-chief is limited to carrying out the laws approved by Congress and directing day-to-day military operations.

Past presidents have asserted that their powers as commander-in-chief justify their acting without congressional authority or even in opposition to congressional action. Just as frequently, the Supreme Court has held that they do not have it.

During the Civil War, President Abraham Lincoln established military commissions to try civilians accused of aiding the Confederacy, and suspended the writ of habeas corpus, so military detentions could not be challenged in court. The Supreme Court ruled that both of these actions were unconstitutional.

During the Korean War in the 1950s, President Harry Truman ordered the seizure of the nation's steel mills to avert a nationwide steel strike, contending that continued steel production was necessary to the war effort. Federal labor law specifically provided a method of dealing with nationwide strikes, beginning with a "cooling off" period. Congress had expressly refused to authorize government seizure to avoid a nationwide strike.

Wartime or not, Congress trumped the president, and Truman's steel seizure was held unconstitutional.

In the 2004 Hamdi case, the court determined that Congress had authorized the president to detain as an "enemy combatant" an American citizen captured on the battlefield in Afghanistan. But the court also disagreed with the Bush administration and ruled that due process required that he be given a full and fair hearing to determine whether he was an enemy combatant.

In another 2004 case, the court held that federal law entitled foreign detainees at Guantanamo to contest the legality of their detention there.

Thursday's ruling has serious implications for other terror war issues, such as the National Security Agency's warrantless wiretapping of communications from "suspected terrorists" to people inside the United States. Bush claims that his war powers enable him to bypass the Foreign Intelligence Surveillance Act, which requires the president to obtain a warrant from a special court to engage in foreign electronic surveillance.

Since Congress has established a way for the president to get such a surveillance warrant, the court's Thursday ruling seems to indicate that Bush and future presidents must respect the wishes of Congress and comply with that legal process.

If the issue comes up before the court, Bush is likely to suffer another defeat. But it would be another victory for respecting the separation of powers and ensuring oversight of government spying.

Robert A. Sedler is a distinguished professor of law at Wayne State University in Detroit, where he teaches constitutional law. E-mail: letters@detnews.com.

http://www.detnews.com/apps/pbcs.dll/article?AID=/20060630/OPINION01/606300417/1008
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