Thanks, justices: Great gift for 4th

With its 5-3 rebuff of Bush's executive-power claims, the Supreme Court reminds us what Constitution's all about.

As Independence Day approaches, I can't think of any better gift to the nation than the Supreme Court ruling last week that checked President Bush's expanding claims of executive power.

July Fourth should remind us how blessed we are to live under rule of law. Most Americans take that blessing for granted and fail to understand how rare is the legacy bequeathed by the Founding Fathers.

The case, Hamdan v. Rumsfeld, was technically about whether Osama bin Laden's former chauffeur, a Yemeni named Salim Ahmed Hamdan, who is imprisoned at Guantanamo, could be tried by military commission - a system established by Bush. The court ruled that such commissions were not authorized by federal law and violated our signature on the Geneva Conventions.

The decision also dismissed the president's claims that his powers as commander in chief must not be questioned in wartime.

Since 9/11, the Bush administration has been trying to expand executive power and to avoid consultation with Congress on issues related to terrorism. The president ignored Congress when he established military commissions to try Gitmo detainees. He ignored existing security law (which Congress would readily have revised) when he set up a massive program of telephone and e-mail surveillance. He has issued about 750 "signing statements" asserting the right to ignore or reinterpret laws that Congress has passed and he has signed.

"There is a strain of legal reasoning in this administration that believes in a time of war the other two branches have a diminished role or no role," Sen. Lindsay Graham (R., S.C.) told the Washington Post.

The crucial message the Supreme Court conveyed to the White House is this: As you battle terrorism, don't undermine the very democratic institutions you seek to defend.

To which I'd add: Don't undermine the very democratic system you are promoting abroad. This thought has been much on my mind since returning from a trip to Iran and Iraq.

The White House is vociferously promoting "rule of law" in the Middle East, where religious law often trumps constitutions, and written laws function (or not) at the whim of authoritarian rulers.

In Iran, a supreme cleric has authority that supersedes that of the elected government. In Iraq, the legacy of a brutal dictator makes it painfully hard to establish a workable judicial system, and laws have little meaning for ordinary citizens because they are rarely enforced.

Arabs don't enjoy separation of powers - our system of checks and balances that keeps (or should keep) an executive from getting out of hand. Parliaments and courts exert minimal leverage against authoritarian rulers. The media are mostly state-controlled, and independent journalists risk prison or worse.

The Hamdan decision is a reminder - for those who never had civics courses in school, or never visited the Middle East - of the importance of checks and balances. As Justice Anthony Kennedy wrote, in a concurring opinion: "Concentration of power in the Executive Branch puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution's three-part system is designed to avoid."

The Hamdan decision should make the White House more modest about criticizing other leaders for backsliding on democracy - without first scrutinizing itself. Vice President Cheney recently berated Russian leader Vladimir Putin for restoring authoritarianism. Indeed, Putin advocates "managed democracy," which means undercutting any institutions that challenge executive power.

The Russian leader has neutered the parliament, changed the elections system for regional governors to one of appointments. And the Russian state now controls national television and most national newspapers. For Putin, democracy means controlling all so-called democratic institutions. Putin also justifies a lot of his behavior by citing the threat of Islamist terrorism on Russia's borders.

We are not Russia, and Bush isn't Putin. But the long- running struggle against Islamist extremists, however daunting, cannot justify the degrading of our system.

Justice Sandra Day O'Connor put it brilliantly in a June 2004 case rejecting the president's claim of authority to hold a U.S. citizen indefinitely as an enemy combatant without a hearing. She wrote: "We have long since made clear that a state of war is not a blank check for the president... .

"It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

The Supreme Court gave us a July Fourth gift by reminding us of those principles. Let the fireworks begin.

Article 84 of the Third Geneva Convention: "A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war."

The laws of the United States do not permit a U.S. servicemember to be accused and tried in a civil court of war crimes. They are entitled to be tried under the UCMJ in military courts.

According to Article 84 of the Third Geneva Convention, such charges must therefore be dealt with in a military court.

The purpose of this article is to protect combatants from vengeful civilian juries who may not comprehend that a killing during a war may be perfectly legal.

There is also the following from Article 4 that applies, and neither the terrorists nor the insurgents abide by it, so, therefore, are not POWs:

Art4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

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