Supreme Court ruling should cap executive power

THE ISSUE The Supreme Court has ruled that military commissions created to try alleged terrorists violate U.S. law and the Geneva Conventions.

SINCE Congress authorized President Bush to use force in combating global terrorism on Sept. 14, 2001, he has claimed constitutional authority to ignore statutory restrictions on executive power. The U.S. Supreme Court's rejection of the use of military tribunals for terrorism suspects is a major retribution that should force the president to seek congressional permission to take such actions.

The court ruled two years ago that the congressional resolution was no "blank check," but yesterday's ruling is the first to assert legal rights for prisoners held at the Guantanamo Bay prison camp in Cuba. Bush said he will ask Congress to authorize "a tribunal to hold people to account."

He should not stop there. The National Security Agency continues to use warrantless eavesdropping in violation of the Foreign Intelligence Surveillance Act of 1978, and the administration may be engaging in other unauthorized actions that we don't know about. Congressional action is needed.

Bush is not the first president to overreach his authority during wartime. Abraham Lincoln suspended the habeas corpus rule allowing people to seek redress in court, Franklin D. Roosevelt put Japanese Americans in internment camps, and Richard Nixon authorized bugging domestic "subversives."

Vice President Richard Cheney and Defense Secretary Donald Rumsfeld served in the Ford administration and have sought to restore executive power reined in by the War Powers Act approved by the post-Vietnam Congress. A Republican Congress has been conciliatory.

In the Guantanamo case, the Supreme Court ruled that Bush lacked authority to create military tribunals providing a lesser standard of justice than federal or military courts. The justices rejected the administration's argument that the Detainee Treatment Act, passed by Congress last year, stripped the court of jurisdiction to consider the case.

Justice John Paul Stevens, who wrote the court's majority opinion, said that act "contains no language authorizing that tribunal or any other at Guantanamo Bay," although it implicitly recognizes the military commissions' existence. Neither it nor the post-9/11 authorization "expands the president's authority to convene military commissions," he added. The court ruled that the commissions violated American military law and the military's obligations under the four Geneva Conventions of 1949.

"The court's conclusion ultimately rests upon a single ground: Congress has not issued the executive a 'blank check,'" Justice Stephen G. Breyer concurred. "Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here. Nothing prevents the president from returning to Congress to seek the authority he believes necessary."

Presidents are reluctant to ask Congress for such permission, fearing that the mere request implies that the executive branch lacks such authority. A narrow interpretation of the high court's ruling will lead to further breaches.