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.  Read more