Yesterday the White House issued the following statement:

White House Statement, July 11, 2006

"As a result of the Supreme Court decision, that portion of the order no longer applies. The Supreme Court has clarified what the law is, and the executive branch will comply."

Here is that order:

THE WHITE HOUSE
WASHINGTON
February 7, 2002
MEMORANDUM FOR: THE VICE PRESIDENT
THE SECRETARY OF STATE
THE SECRETARY OF DEFENSE
THE ATTORNEY GENERAL
CHIEF OF STAFF TO THE PRESIDENT
DIRECTOR OF CENTRAL INTELLIGENCE
ASSISTANT TO THE PRESIDENT FOR NATIONAL SECURITY AFFAIRS
CHAIRMAN OF THE JOINT CHIEFS OF STAFF

SUBJECT: Humane Treatment of Taliban and al Qaeda Detainees

......a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a High Contracting Party to Geneva.

b. I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva....

Please read the whole Executive Order as pertains to the Geneva Conventions, as the whole order needs to be rescinced, not just one part, as the White House said yesterday.

What happened in Hamdan to shift the balance of powers between the three branches?

``At a symbolic level, it is a huge moral triumph that the administration has acknowledged that it must, under the Supreme Court ruling, adhere to the Geneva Conventions,'' said David Remes, a lawyer who represents 17 Yemeni detainees at Guantanamo Bay. ``The legal architecture of the war on terror was built on a foundation of unlimited and unaccountable presidential power, including the power to decide unilaterally whether, when and to whom to apply the Geneva Conventions.'' Washington Post

What has been undone in Hamdan v. Rumsfeld:

See: Legal Arguments for Avoiding the Jurisdiction of the Geneva Conventions

And see: Center for Constitutional Rights:

REPORT ON TORTURE AND CRUEL, INHUMAN, AND DEGRADING TREATMENT OF PRISONERS AT GUANTÁNAMO BAY, CUBA
July 10, 2006

...The decision to abandon the Geneva Conventions and designate the prisoners as "enemy combatants" - rather than conducting the legally required Geneva Convention hearings to identify any prisoners of war and release noncombatants - enabled DoD to evade the Field Manual's stringent standards.

The rules of engagement in Guantánamo for interrogating alleged enemy combatants are deliberately vague, go beyond the time and battle-tested standards of the Field Manual, and, as a result, contribute not only to confusion on the ground but to the sanctioning of abusive methods of prisoner treatment. By rejecting the Geneva Conventions and other protections, the United States sought to exempt itself from any limits on interrogation methods for individuals detained in the "war on terrorism."

The U.S. government's efforts to avoid its Geneva obligations continue. For over a year, DoD has been drafting a new Army Field Manual modifying instructions for prisoner interrogations. DoD recently stated that the new Field Manual would omit a key tenet of the Geneva Convention that explicitly bans "humiliating and degrading treatment." DoD has acknowledged that the State Department as well as a number of senators and senior generals vehemently oppose the change, observing that the proposed standards of treatment in the new Field Manual would violate the anti-torture protections advanced by Sen. John McCain (R-Ariz.) last year and codified in The Detainee Treatment Act of 2005.

It has been demonstrated repeatedly over the last four years, Bush has been operating in a lawless zone.

THE BUSH MILITARY TRIBUNAL ORDER IS UNCONSTITUTIONAL AND ILLEGAL
By Charles Gittings
Project to Enforce Geneva Conventions
November 2001

"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny." ---James Madison, The Federalist Papers, #47

There are no legitimate grounds for the Bush presidential order authorizing military tribunals (Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism; 13 November 2001); neither in the Constitution, nor law, nor precedent, nor any rational concept of moral philosophy. The order is manifestly unconstitutional, unnecessary, dangerous, and illegal under existing international law.

Paradigm Shift: Emergency Over

The ultra conservative Charles Krauthammer of the New York Times says the difference is huge

Emergency Over, Saith the Court
New York Times
By Charles Krauthammer
Friday, July 7, 2006; A17

What the Supreme Court essentially did in Hamdan was to say to the president: Time's up. We gave you the customary half-decade of emergency powers, but that's as far as we go. From now on the emergency is over, at least judicially, and you're going to have to operate by peacetime rules.

Or, as Justice Anthony Kennedy, the new Sandra Day O'Connor, put it, Guantanamo (and by extension, war-on-terrorism) jurisprudence must henceforth be governed by "the customary operation of the Executive and Legislative Branches." This case may be "of extraordinary importance," but it is to be "resolved by ordinary rules."

The State of Emergency declared in September of 2001, and renewed in 2002 was never declared over. It is this "new paradigm" and the AUMF from which Bush assumed all his super-powers. Powers that are extra-constitutional. The return to Geneva Conventions and the Uniform Code of Military Justice has rendered quaint and obsolete the advice of Alberto Gonzales. Also overwritten are all the CIA exceptions to the illegality of torture.

Hamdan's Relevance to NSA Spying

From Kagro X; Daily Kos

The legal foundations were the same. The legal foundation for the government's claim that its tribunals were permissible (the main issue in Hamdan) was that they were authorized by the AUMF (though it says nothing about them) and that the president has the "inherent power" to create them, even in the absence of the AUMF.

The legal foundation for the government's claim that its NSA spying is permissible is exactly the same. That it was authorized by the AUMF (though it says nothing about it) and that the president has the "inherent power" to order it, even in the absence of the AUMF.

The Hamdan majority basically says that's not true. That the AUMF is inapposite to the claims about the tribunals, and that the president's "inherent power" does not authorize such activities. So if that's true with respect to the tribunals, and the legal rationale for the tribunals is exactly the same as it is for NSA spying, then if Hamdan means the tribunals are unsupported, so is the NSA spying.

Hamdan v. Rumsfeld: Gonzales is Undone

Gonzales' opinion on which the February 7th 2002 Executive Order was based is UNDONE.

The Supreme Court has rendered Gonzales' advice ILLEGAL.

The White House cannot say,

"As a result of the Supreme Court decision, that portion of the order no longer applies. The Supreme Court has clarified what the law is, and the executive branch will comply."

The order must be rescinded, and the AUMF is up for critical review. The last time this happened was when the Office of Legal Counsel withdrew and nullified the Bybee Torture Memo.... but this time it comes, as it should, from the Supreme Court.

650 prisoners in Guantanamo, 1000 world wide, and then, the disappeared

Held without charge for the last 5 and a half years. Three recently died by suicide. These my sister refers to as "the martyrs." This ruling comes too late to help them, and too late to prevent the torture, extraordinary rendition, and violation of human rights that have occurred in the last 5 years that Geneva protects against.

The changes, "at the speed of sludge", are however real and progressive.

How did Bush & Co get away with it for so long? The complicit media is blamed and the rubber-stamping Congress is blamed. Rumsfeld and Gonzales are blamed. John Yoo, who said in April, 2002, "What the administration is trying to do is create a new legal regime," There's your blame.

The Court Accused of being Thought Police by Bush's Legal Architect

"What the court is doing is attempting to suppress creative thinking," said Professor Yoo, who now teaches law at the University of California, Berkeley. "The court has just declared that it's going to be very intrusive in the war on terror. They're saying, 'We're going to treat this more like the way we supervise the criminal justice system.' "

The court's decision in Hamdan v. Rumsfeld, Professor Yoo said, may signal the collapse of the entire enterprise. "It could affect detention conditions, interrogation methods, the use of force," he said. "It could affect every aspect of the war on terror."

He was not overstating his case. True, the decision itself -- holding that the government could not try detainees held at Guantánamo Bay, Cuba, for war crimes in a particular way -- was narrow, given that it directly affected only 10 men and did not address the administration's broader contention that it can hold those men and hundreds of others without charges forever. And Congress may yet put some or all of the president's programs on firmer legal footing.

But the effect of the decision, constitutional lawyers across the political spectrum agreed, could devastate the administration's main legal justifications for its campaign against the terrorist threat. The Court Enters the War, Loudly; New York Times, July 2, 2006

In years to come Bush's Crusade will look like America's Dark Ages. He put us back pre-Magna Carta as far as the detention of prisoners and habeas corpus. The decision of the Supreme Court re: Hamdan takes us from the year 1215 to the year 1946...... now that's good. The administration is now exposed as not just having "cherry-picked" pre-war intelligence in the build-up to the war on Iraq, but as having "cherry-picked" Constitutional provisions for the checks and balances of power among the three branches of govt.

Return to Constitutionality: Tony Snow Press Conference

What the Supreme Court has said is that Congress needs to authorize a way forward when it comes to the proper dispensations of the cases of those at Guantanamo. And therefore, Congress has an important role to play and the Senate is stepping forward and holding hearings and mulling options. You know, all help is welcome.

And I think what people of goodwill need to do, and that's what we're seeing on Capitol Hill, is to find a way, consistent with national security, to bring to justice people who were plucked from the battlefield, people who were not representatives of any duly constituted army, who do not represent any nation state, and who have vowed to kill innocents -- how do you bring those properly to justice? In some cases, it means repatriating, and in some cases, it's going to mean finding a proper way acceptable to the Supreme Court to conduct trials. So we welcome those hearings, and obviously we're going to work with Congress as it moves forward. Press Briefing by Tony Snow; July 10, 2006

The point is that Congress, and only Congress, had the role to play from the onset: to declare war and to determine the fate of captives on land and by sea.... but the Bush admin. through AUMF and the February 7th, 2002 executive order usurped Congress' role in declaring war, defining the parameters of that war, and upholding, preserving and regulating the law of war within the limits of its Constitutional authority.

The Bush administration devised a "new legal regime" based on exceptionalism precisely to avoid the charges of war crimes, as under the Constitution the US is bound by all international treaties to which it is a signatory. There never was an exception to Geneva, which is what has confused so many for so long.

Bush wrote a new law of war for a new kind of war. Although the world has known terrorism for millennia, Bush defined the war on terror as one that began on 911, and wrote the rules for warfare as he went along. He invented terms outside of Geneva to avoid culpability for torture.... for the DoD and for the CIA. It has taken the United States more than five years to rediscover and restablish through the Supreme Court that the President does not write the law of the land. Rumsfeld as well, approved then had to withdraw 37 torture techniques that violated both Geneva and the Uniform Code of Military Justice.

The Army Field Manual has been rewritten twice during the war on Iraq.... not to refine the manual, but to create exceptions for the CIA and contractors who commit torture on prisoners held by the US, and to remain vague on the limits and definitions of what constitutes cruel and unusual punishment. The last version of the Army Field Manual left out key provisions of Article III Geneva that explicitly bans "humiliating and degrading treatment."

Operative phrase in Feb. 7, 2002:

I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva

BUSH NEVER HAD THE AUTHORITY UNDER THE CONSTITUTION TO SUSPEND GENEVA.

All this has been undone by Hamdan, and Tony Snow, White House spokesman, is saying "we now return you to your previously scheduled program.... the U.S. Constitution, the Geneva Conventions, and the Uniform Code of Military Justice"

As Krauthammer says, it is a return to "normalcy"

The house that Bush built, on a foundation of laws that he (Bybee, Yoo, Gonzales) improvised, based on a "new kind of war" is falling. Orders can not be rescinded piecemeal, as portions are ruled illegal more than four years after the fact. We cannot live with a Geneva Up, Geneva Down administration and still function as a Constitutional democratic republic. Bush's era of lawless world is closing.