Let's see. (1) The 1949 Geneva Conventions weren't in effect. (2) No one at Nuremburg was convicted on the basis of secret evidence, denied access to his own trial, or denied the ability to confront or cross-examine the prosecution's witnesses.

Does that get you started, Bitsy?

"The fundamental, profound category error made by the administration has been to confuse two utterly different meanings of the term 'inherent presidential power.' One meaning would refer to what the president has authority to do on his own in the fields of national security and armed conflict when Congress has not acted. That should be a very broad area. The term 'inherent presidential power' could also be taken, however, to refer to matters so deeply at the core of presidential authority that any act of Congress that regulated or limited the exercise of that power would be unconstitutional -- even if Congress was acting under legislative powers clearly conferred by the Constitution. That should be an exceedingly small set of matters.

"This administration has taken the astounding position that if the president has 'inherent authority' to do and act whenever Congress is silent, then it follows that any act of Congress that regulates such an authority is an invalid impingement on his 'inherent power.' This conflation of what a president can do if no law prohibits his action and what he can when the law forbids it is a truly insidious legal doctrine.

"The court made short work of it today. RIP 'inherent presidential authority' to violate valid laws. Justice Kennedy makes this point more simply than I have. After noting that the military commission order 'exceeds limits that certain statutes have placed on the President's authority to convene military courts,' he asserts:

" 'This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government â?¦ has set limits on the President's authority.'

"This seemingly simple proposition has huge consequences. There is no doubt that the president would have 'inherent authority' as commander in chief to set up military courts. But that, the court asserts, does not preclude Congress from acting. This same principle must apply to torture, wiretapping, and countless other actions that fall within my (rather expansive) view of presidential authority. All those actions are now clearly subject to the duly enacted laws. The central legal proposition underlying numerous assertions of unprecedented power by this president is no longer tenable.

"This decision need not hinder the war on terror. In a very thoughtful early piece, Jack Balkin calls today's decision 'democracy forcing.' The court does not itself place any constitutional limits on what the president can do to combat al-Qaida. It (merely but profoundly) requires him to act in conformity with constitutional government by asking the people's representatives to enact legislation that he believes -- and can convince the country -- to be necessary.

"Today's decision has been criticized by conservatives on the court and by some off the court. But just as this is not a victory for terrorists, neither is it a defeat for conservatives, as many will come to realize. Placing the presidency back under the law will look quite different to critics when there is a president less to their liking in the White House. "

Yes indeed, my poppet. The decision gives Congress every power to rubber-stamp the current Bush tribunal system (and, for that matter, explicit, public and wholesale torture) -- but it DOES say that Congress must officially approve it, and that to do so it must explicitly say that neither the Geneva Conventions nor the Uniform Code of Military Justice apply to these detainees.

Hardly a surprising decision, since Article 1 expressly gives Congress power to "make rules concerning captures on land and water" -- which it has already done regarding both POWs and people captured and accused of criminal offenses. It will now have to say explicitly that those rules don't apply to these particular detainees. How dreadful of the Court to force it to say so!

Still, if the proprietor of this blog actually WANTS to make the President a dictator in wartime -- in this case, a "wartime" with no conceivable end for at least decades -- he's free to do so...

And, by the way, the question is not "whether Common Article 3 applies to terrorists." The question is "whether Common Article 3 applies to people ACCUSED of being terrorists." We now know beyond any doubt whatsoever that a large fraction of the inmates in Gitmo are NOT terrorists, that the Administration has known all along that they are not terrorists, and that it has been deliberately concealing the fact in order to make Rumsfeld look good:

http://www.washingtonmonthly.com/archives/individual/2006_02/008230.php

http://www.washingtonmonthly.com/archives/individual/2006_02/008244.php

http://www.washingtonmonthly.com/archives/individual/2006_06/009109.php

Which puts rather a different perspective on things, and makes clearer the importance of not allowing the President to become an absolute dictator in wartime, does it not?

As for the limitations to the Authorization, I refer you to this document: http://www.fas.org/sgp/crs/natsec/RS22357.pdf

As for your critique of our Constitutional system of checks and balances -- I would again ask, would you support such expansive authority if the President's name was Clinton? Maybe even Hillary Clinton?

He is claiming wartime authority for the President. But absent a declaration of war, how does a President get this �authority�?

<speaking VERY slowly>

From Congress, which passed an Authorization (notice that word?) to Use Military Force.

"Authorization" means to give authority. See how that works?

I think that you have to view the Hamadan decision through the lens of this being an undeclared war. If there were a declaration of war that decision might have been different. (Of course, there is also the interesting question of: can declare war against a non-state actor, but that is a different argument altogether.)

Your defence of the decision is definitely an indication of where you sentiments lay, With the terrorist or America. Anyone who sides with this decision is a very stupid person who most likely has other agendas or is one who is leading the Hate Bush parade.

I can only conclude that besides the 5 justices who are the "Bastards of America" there are many out there who have chosen to join them as "Bastard Compatriots" by agreeing with this "Bastard Decision by Bastards".

Some of you are "Sickening".

Explain to me how the two situations are different.

You're right, neither has been ruled unconstitutional.

Is this a war? If so, doesn�t Congress need to declare it as such?

<sigh>

Solo, is it your position that there's no war unless Congress explicitly passes a resolution with the magic words, "declaration of war"?

Seems to me the one bright spot in this ruling is that the Supreme Court has pretty well concluded: We Are At War. So, good luck with arguing that somehow we're not because what Congress adopted was an Authorization to Use Military Force that didn't contain those magic words.

Hardly.
Explain to me how the two situations are different.

(This oughta be good)

The law of unintended consequences