The Odd Blog

And when our cubs grow / We'll show you what war is good for

Major Guantanamo Setback for Bush

Posted by That Other Mike on 19/06/2008

I know, I know. I’m late to the party. As you all know, I’m not really one for blogging on news as it breaks. At least not with any kind of analysis. Adding links and quotes, yeah, I can do that. So could a trained monkey, although admittedly said monkey would probably be better than me at climbing trees and such.

Guantanamo's Camp Delta compound has housed prisoners since 2002Foreign suspects held in Guantanamo Bay have the right to challenge their detention in US civilian courts, the US Supreme Court has ruled.

In a major legal setback for the Bush administration, the court overturned by five to four a ruling upholding a 2006 law which removed such rights.

It is not clear if the ruling will lead to prompt hearings for the detainees.

Some 270 men are held at the US naval base, on suspicion of terrorism or links to al-Qaeda and the Taleban.

US President George W Bush said he would abide by the court’s ruling even if he did not agree with it.

Human rights groups have welcomed the move, Amnesty International saying it was an “essential step forward towards the restoration of the rule of law”.

BBC News

This is obviously a fantastic decision, although disappointingly split; Chief Justice Roberts’s remarks about the rights afforded to detainees are also appallingly self-satisfied and blasé.

This sets the tone, really, for the coming years of the “war on terror”; this decision, coming after Hamdan v Rumsfeld, is likely to be a nail in the coffin of Bush-style unitary executive theory.

Broadly speaking, the theory of the unitary executive is a form of Constitutional interpretation which holds that all executive power rests solely with the President; included in the Bush version of that is the sole right to determine how far Presidential powers stretch, especially during wartime.

The doctrine relies for its authority on the Vesting Clause of Article II, which states

“The executive Power shall be vested in a President of the United States of America.”

Proponents of the theory argue that the President possesses all of the executive power and can apply it as s/he sees fit without restriction by Congress or judiciary, as to do so would violate the separation of powers; a corrolary of this is that agencies created by Congress would, under this doctrine, be considered to be un-Constitutional if they exercise executive powers.

Naturally, this is an attractive doctrine to Presidents who desire authority to a high degree; the current President is a case in point. Note that desire towards authority is not, in and of itself, a suspect desire, especially when appropriate, as is the case with Presidents; Truman’s Executive Order 10340, for example, was undertaken in a noble spirit, even if ruled invalid, and Clinton’s objection to the Congressionally-specified circumstances under which Presidents would be allowed to dismiss the director of the National Nuclear Security Administration as an infringement of Presidential power was entirely correct.

In my opinion, though, the theory falls flat on a few important points:

  • Corporate Presidency
  • Checks and Balances


Corporate Presidency
No, this isn’t a comment on Bush’s pro-business rhetoric. The term corporate referred originally to a body of people or things, which is where we get the word corporation for a company formed of many people. In this instance, I’m referring to the plural nature of the Executive; while the Constitution says that executive power is vested in the President, it also allows for the existence of the Vice President as a part of the Executive. Cheney’s attempts at evading oversight aside, I don’t think anyone with more than a pair of functioning brain cells would attempt to argue that the VP isn’t part of the Executive. A minor part, with little in the way of formal duties these days, but still very much a part of it. Similarly, the phrasing in Article 2, Section, strongly implies1 the Cabinet:

[H]e may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices

and other officers of the Executive:

He shall […] appoint Ambassadors, other public Ministers and Consuls […] and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Emphases mine, of course.

It’s pretty obvious from these portions at least that while Executive power is vested in the President, in the sense of being ultimately his/hers to deploy, it doesn’t seem to follow that the Executive is only the Presidency; it centres on the President, but it is not the President alone.

Checks and balances
Each branch of government is coequal under the dominant current understanding2. The argument that the Presidency is somehow superior is ridiculous and not borne out by the evidence. Similarly, the idea that the President should become more powerful versus the other branches in wartime is spurious; there is nothing to support this in the Constitution, and given the limitations placed upon the ability of the Executive to wage war, the opposite reading would seem more apposite. Especially not using the “plain reading” standard that so many right-wingers claim to desire, and the unitary executive is an idea predominantly pushed by the right.

Simply put, I don’t think the idea of the unitary executive holds water. It’s based on a poor reading of the Constitution, one that ignores the facts and comes from an ideologically-driven presumption of superiority.

The Supreme Court decision has dealt it something of a blow, and whether the doctrine will recover remains to be seen. If, as seems increasingly likely, we seem a Democratic President in office next January, the likelihood is that the unitary executive will be dead, or at least mortally wounded. This is in turn will effect a change in the way that the “war on terror” is run, at least in practical terms; if the President is seen as being subject to Congressional oversight, the likelihood is that there will be fewer big gestures and sloganeering. While it’s unreasonable to expect the whole enterprise to wind down any time soon, I think that this decision leaves the door open for a more sensible, pragmatic undertaking, one not based on the destruction of civil liberties and the alienation of long-term allies.

Let’s hope it takes.



1 This is one of those occasions where you can tell that the Constitution was written by committee; the Cabinet is obviously there conceptually, but it was unaccountably left almost completely unspecified. *sigh*

2 This is despite the laundry list of explicitly-defined Congressional authority vs the comparatively miniscule list of Presidential authority, plus the history of the strong legislature in the Articles of Confederation, plus the idea of a strong legislature was very familiar and obvious to the writers of the Constitution.

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4 Responses to “Major Guantanamo Setback for Bush”

  1. Lottie said

    Let’s hope indeed!

    Good post, Honey. Thanks!

  2. Will Rhodes said

    Good post.

    You do have to look at the reality that, whether Americans like it or not, the President is, in effect, both dictator and regal throne-sitter. You have this with the fixed term of four years, unless impeached, and absolute power – defecating on Congress whenever needed. Proof in the pudding again where funding for the Iraq war has passed – with no schedule as to when those troops are going to go home. More proof in the veto that the president holds when he (and very unlikely, she) doesn’t like something that comes across his desk. “Change it to my whim or it will not pass!”

  3. Mike said

    Well, yeah,up to a point. The most interesting thing in my opinion is how few Americans realise that the Presidency is not powerful by design or nature but by habit of Congress and expectation. They give the President a lot of power that doesn’t come automatically with the position.

  4. […] Major Guantanamo Setback for Bush …said monkey would probably be better than me at climbing trees and such. … about the rights afforded to detainees are also appallingly self […]

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