Hamdan case: a victory for individual rights.

The U.S. Supreme Court handed devotees of individual liberty a victory with the June 29 Hamdan v. Rumsfeld decision, where by a 5-3 margin justices struck down a military tribunal called by the president for trying alleged terrorists at Guantanamo Bay. Quoting the 1866 case of Ex Parte Milligan, the majority ruled that "the president [cannot] institute tribunals for the trial and punishment of offenses, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature."

And, the majority ruled, there was no emergency that necessitated the president constituting a tribunal without first obtaining the explicit authorization of Congress.

Hamdan v. Rumsfeld recognized that although the president has extraordinary powers during a declared war to allow for swift prosecution of that war, he has no power to constitute a court--even a military court--on a whim. The U.S. Constitution reserves to Congress alone the exclusive power to "declare war" (which Congress has not done), "constitute tribunals inferior to the Supreme Court," "define and punish piracies and felonies committed on the high seas, and offenses against the laws of nations" (such as terrorism), and "make rules for the government and regulation of the land and naval forces" (including court "commissions" under military auspices).

The Bush administration's working strategy regarding people it has detained seems to be to assume they have no rights--unless forced to do otherwise. This is the same Bush administration that has previously asserted in cases fought all the way to the Supreme Court that detainees who are U.S. citizens are not entitled to a trial by jury (Rumsfeld v. Padilla, 2005) or even allowed to consult with a lawyer (Hamdi v. Rumsfeld, 2004).

In both cases, the Bush administration folded as it faced a losing proposition at the high court. Faced with a mandate to provide some sort of trial, the administration opted to create a Star Chamber, where secret evidence could be presented without either the defendant or his attorney being present. How, one wonders, are defendants supposed to defend against evidence that they aren't even allowed to see?