Remember when other countries gave us presents to commemorate our committment to liberty?

Democracy-forcing is Jack Balkin’s phrase, used in a much-linked-to piece to describe the central import of the Hamden decision.

If you’ve resisted other exhortations to click and read it, here’s another opportunity; go ahead; do yourself a favor, it really is a wonderfully clear and provocative post.

Balkin’s analysis emphasizes that the decision should be read primarily as one that reaffirms the separation-of-powers doctrine embedded through-out the constitution.

Thus, although Stevens’ opinion cites particular provisions of both the UCMJ and the Geneva Conventions, the President is bound by them not because the provisions are sacrosanct on some universal human rights basis:

The reason why the President is bound by these requirements is because Congress passed the UCMJ and because the UCMJ uses the laws of war— which include the Geneva Conventions— as a benchmark for procedures in military commissions. So when Congress acts under its constitutional authority to regulate military justice, as it has throughout the country’s history, the President must abide by those regulations.

And yes, as Commander-In-Chief, Presidents get to conduct wars, and are generally in charge of foreign policy, but while reminding myself that our government is based on a tripartite structure, I decided to refresh my own memory about what the actual constitution has to say about the role of congress in these matters.
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From Article I, Section 8 of the Constitution, (I like the annotated one at Findlaw), among the powers of congress you will find enumerated there:

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Of course, as Balkin is quick to point out, what congress passith, congress can changith.

That is what makes the decision a democracy-forcing one.

It’s already clear that congressional Republicans intend to do the President’s bidding by attempting to pass legislation that will create the kind of military tribunals John Yoo dreams about, with few if any of the procedural guarantees currently included in the UCMJ, which may sound technical until you realize, as Balkin points out, the two such guarantees denied to Hamdan were “any right to know what the charges are or the right to know what evidence is being used against you.”

Here’s the difference between such a legislative undertaking and those John Yoo memos; congress will have to do its dirty work in public.

Every member of congress will have to avow, publicly, that they are in favor of revoking our allegiance to the Geneva Conventions, that the United Code Of Military Justice needs to become less unified.

Nor will this legislation be something that can be railroaded through, if the Democrats are resolute. Let the right-wing talk of the Hamden decision being a gift to Bush; it is truly a golden opportunity for the opposition party to oppose, on an issue that is no longer Bush’s strength, in defense of human and constitutional values that have a far longer history than does the Bush administration.

Such opposition, despite the near-certain-to-be attempts to define it as an elitist attack on the rights of an elected president, will be fairly easy to define as a defense of a SCOTUS decision that returns to the “house of the people,” fundamental decisions about how we define ourselves as Americans.

Even if Republicans succeed in passing some sort of authorizing legislation, they will have to defend it in November.

Mind you, the structure of rules in the House give little latitude to minority members, but the Senate Democrats can stop such legislation in its tracks, insisting on extended debate, which they can use to make clear to Americans how damaging to this country, not least in the “War on Terror,” has been Guantanamo, and Abu Ghraib, and secret gulags around the world, and with almost no worthwhile entry to be made on the plus side of the ledger.

They can use such a debate to let the American public know what we know about who is in Guantanamo, and demand to know more about those prisoners. They can read aloud, the entire series of memos by FBI observers, describing practices that I think the vast majority of Americans will find shocking.

One small example of how much we do know that almost no one, but an unhappy few, seem to know we know: only 5 % of those prisoners at Guantanamo were actually captured by American military forces, let alone anywhere near a battlefield. Only 8 % are even classified as “fighters.” 55 % are not accused of any single hostile act toward this country. Most of the prisoners were handed over to Americans, for money, by Afghanis and Pakistanis.

And yet, we are continually told they are the worst of the worst, continually the administration and almost all Republicans refer to them as members of Al Qaeda. Oh, and by the way, one of the criteria used for establishing that someone might be Al Qaeda was the wearing of a Casio watch.

The reason that this administration can’t figure out how to close Guantanamo is their fear, not that the released prisoners will return to their terrorist ways, but that those prisoners will set about telling the world who they are, why they were detained, and what was done to them at Guantanamo.

I suspect that the most dangerous prisoners have already been repatriated or just plain old released. I suspect that most of those that are left are the ones the administration finds most troublesome, and that means those who represent the greatest threat to Bush and the Republicans.

It’s not too early to start organizing the blogisphere to start bombarding Democrats with support for grabbing hold of this opportunity, and running with it all the way to November.