There seems to be a common perception among many Bush critics -- one which is a not-very-distant relative of all-out defeatism -- that something as weak and unmuscular as a lofty Supreme Court ruling isn't going to have any effect on the Bush administration, and that they are just laughing at the idea that what the Supreme Court says matters. But that is simply not what senior Justice Department lawyers and senior administration officials are doing in the wake of Hamdan.<
The Supreme Court unquestionably rejected the very theories which the Bush administration has been using to defend themselves from accusations of criminal conduct. The ruling in Hamdan stripped those defenses away and the lawbreakers in the administration are left standing exposed. There is simply no question that the five-Justice majority in Hamdan would reject with equal vigor, at least, the administration's claim that the AUMF authorized them to eavesdrop in violation of FISA and/or that the President has the inherent authority to violate Congressional law in the area of national security.
Unfortunately, they have a pretty good defense. The branch of the Government that is supposed to rein them in and would have to cooperate in any effort to prosecute the Administration for War Crimes is completely uninterested in any such effort. Only Congress can impeach the President and remove him from office in between elections. They are not going to do that. Sure, if the Democrats take control of Congress then the situation changes, but they would need the House to impeach and a BiPartisan consensus in the Senate to remove the President. I suppose they could be tried in the Hague, but good luck trying to get them there.
Don't get me wrong, if Hamden does nothing but improve the treatment of prisoners in DOD custody at Gitmo and around the world, that is a huge victory. I would be thrilled if Glenn is right and the Administration is running scared and we could legitimately hope that a day of reckoning is on it's way. But I don't believe it is defeatist to recognize that the GOP echo chamber, their allies in Congress and most importantly, a feckless news media that has a terminal case of abused spouse syndrome, are going to make it difficult to fix the damage these jerks have done to this country. The Supreme Court has opened a door, but we have to step through it by winning Congress in November, by fighting through the signal distortion in the media, and getting our act together organizationally on the left so we don't have to fight with both hands tied behind our backs.