Today's Senate vote on President Bush's detainee legislation, after House approval yesterday, marks a defining moment for this nation.

How far from our historic and Constitutional values are we willing to stray? How mercilessly are we willing to treat those we suspect to be our enemies? How much raw, unchecked power are we willing to hand over to the executive?

The legislation before the Senate today would ban torture, but let Bush define it; would allow the president to imprison indefinitely anyone he decides falls under a wide-ranging new definition of unlawful combatant; would suspend the Great Writ of habeas corpus; would immunize retroactively those who may have engaged in torture. And that's just for starters.

It's a red-letter day for the country. It's also a telling day for our political system.

The people have lost confidence in their president. Despite that small recent uptick in the polls, Bush remains deeply unpopular with the American public, mistrusted by a majority, widely considered out of touch with the nation's real priorities.

But he's still got Congress wrapped around his little finger.

Today's vote will show more clearly than ever before that, when push comes to shove, the Republicans who control Congress are in lock step behind the president, and the Democrats - who could block him, if they chose to do so - are too afraid to put up a real fight.

The kind of emotionless, he-said-she-said news coverage, lacking analysis and obsessed with incremental developments and political posturing - in short, much of modern political journalism - just doesn't do this story justice.

Enemy Combatants: A dangerously broad definition of "illegal enemy combatant" in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret - there's no requirement that this list be published.

Habeas Corpus: Detainees in US military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable - already a contradiction in terms - and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.

Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.

Yes, the NY Times gets it. But it's not telling the whole truth.

The truth is that the United States government is presently holding, torturing, and even murdering countless numbers of people who have no chance in hell of obtaining a lawyer, let alone anything resembling a trial. The government is doing this under the direct orders of George W. Bush. There is no law, no bill, and no legislature who can stop him. If Congress were to pass a law unequivocally banning torture and send it to him, he'd use it for toilet paper. If the Supreme Court were to rule against Bush in the harshest and bluntest language, he'd yawn.

The truth is that there is a rogue presidency and there has been, since January, 2001 (earlier, if you count the stolen election). Certainly, everyone in Washington knows it, but no one dares to admit it. The bill legalizing torture merely enables congress to pretend they still have some influence over an executive that from day one was governing, not as if they had a mandate, but as if Bush were a dictator. If, for some miracle, the bill didn't pass, every congress-critter knows Bush would keep on torturing.

Better to vote to pass and preserve the appearance of a working American government, the thinking goes. For the very thought that the US government is seriously broken - that the Executive is beyond the control of anyone and everyone in the world - is such a truly awesome and terrifying thought that it can never be publicly acknowledged. If ever it is, if the American crisis gets outed and Congress and the Supremes openly assert that the executive has run completely amok and is beyond control, the world consequences are staggering. It is the stuff of doomsday novels.

And this brings up the dilemma of a post Nov. 7 world. Apparently, one if not both houses of Congress may be controlled by Democrats. Now what? You think Bush is gonna get impeached? Put on trial for war crimes? Forget it. You think they're gonna repeal the pro-torture law they're about to pass? You can almost certainly forget that, too. Remember: it is crucial to maintain the illusion that Congress still has some say, as it was in November of 2002 about the Bush/Iraq war.

If, for some reason, Congress does decide to move against Bush in some substantive way, there will be hell to pay. Those of us who well remember Watergate remember that while it was genuinely thrilling to have Nixon caught, disgraced, and removed, it was also a time of extreme tension. Would Nixon tough the impeachment trial out, causing the country incalculable harm? It looked for quite a long time that he would. About Bush, there is no doubt.

Since the day after the 2000 election, Bush and his goons have been playing chicken with the very structure of the United States Government, double-daring anyone to try and stop them. If Congress does try - and I'm not talking little things like wrecking Social Security, that'll happen and a dictator can afford to let things like that wait a while, I'm talking atomic bang bang and thumbscrews - he will force the private Constitutional crisis into the open. And there is no guarantee that Bush will lose.

And that is the truth. The Congress has been given an awful choice: Vote to approve torture and the suspension of habeas or show the world that yes, you really do have no genuine power to check Bush.

Of course, all of Congress should vote against the bill anyway. But they won't. And to themselves, they will justify the vote as saying they made a hard choice but made the best one they could for their country.

Me, well... I've gone on record numerous times about how much I dread radicalism and serious national crises (which are two reasons Bush scares the hell out of me). The prospect of an open Constitutional confrontation, Bush vs. the Congress plus the Supremes... Jesus Christ. Perhaps I should understand the Congress had no real choice?

Absolutely not. The time truly is long overdue where there simply is no choice but to say "enough." It should have been enough over the stolen election, or the neglect that led to 9/11, or Schiavo, or the filibuster. But voting to permit the US government to sidestep Geneva? To suspend habeas? What the fuck is Congress thinking, for crissakes?

… There's no question about it. Any person in Congress who votes for this - listening, Hillary? - will never get my vote again. Ever, not even for dogcatcher, let alone president. If there is going to be a public Constitutional crisis over Bush's rogue presidency - and there will be sooner or later, guaranteed - bring it on now.

The Senate approved legislation this evening governing the interrogation and trials of terror suspects, establishing far-reaching new rules in the definition of who may be held and how they should be treated.

The vote, 65-to-34, came after more than 10 hours of often impassioned debate touching on the Constitution, the horrors of Sept. 11 and the nation's role in the world, but it was also underscored by a measure of politics as Congress prepares to break for the final month of campaigning before closely fought midterm elections.

Following in the footsteps of the House, the Senate this afternoon approved the bill which vests in the President the power of indefinite, unreviewable detention (even of US citizens) and which also legalizes various torture techniques. It is not hyperbole to say that his is one of the most tyrannical and dangerous bills to be enacted in our nation's history.

… The Democrats lacked the votes for a filibuster and therefore did not attempt one. Twelve (out of 44) Senate Democrats voted in favor of this bill, while only one Republican (Chafee) voted against it. The dishonorable list of Democrats voting for the bill: Carper (Del.), Johnson (S.D.), Landrieu (La.), Lautenberg (N.J.), Lieberman (Conn.), Menendez (N.J), Nelson (Fla.), Nelson (Neb.), Pryor (Ark.), Rockefeller (W. Va.), Salazar (Co.), Stabenow (Mich).

One can look at the Democrats' conduct here in one of two ways. On the one hand, it is true that the Democrats disappeared from the debate until today, all but hiding behind John McCain in the futile hope that he would remain steadfast in his opposition to the White House. When McCain predictably capitulated and agreed to a bill that gave the Bush administration virtually everything it wanted, the Democrats, by their own doing, had very few options. Once the Democrats designated McCain as the Noble and Wise Torture Expert who spoke on their behalf, it became very difficult for them to oppose the "compromise" bill after McCain announced that he was blessing it. Democrats painted themselves into this corner by failing forcefully to advocate their own position against torture and indefinite detention.

Nonetheless, it is simply a fact that every Republican in the House and the Senate (with one sole exception in each) voted in favor of this tyrannical bill, while Democrats overwhelmingly opposed it (in the House, 160 Democrats voted "no," while 34 voted "yes"). With those facts assembled, it is fair to say that the Republicans are the party of torture, indefinite and unreviewable detention powers, and limitless presidential power, even over US citizens on US soil. By contrast, Democrats have largely opposed these tyrannical, un-American and truly dangerous measures. Even if Democrats didn't oppose them as vociferously as they could have and should have - and that is plainly the case - this is still a meaningful and, at this point in our country's history, a critically important contrast.

Issues of torture to the side (a grotesque qualification, I know), we are legalizing tyranny in the United States. Period. Primary responsibility for this fact lies with the authoritarian Bush administration and its sickeningly submissive loyalists in Congress. That is true enough. But there is no point in trying to obscure the fact that it's happening with the cowardly collusion of the Senate Democratic leadership, which quite likely could have stopped this travesty via filibuster if it chose to (it certainly could have tried).

... There is a profound and fundamental difference between an Executive engaging in shadowy acts of lawlessness and abuses of power on the one hand, and, on the other, having the American people, through their Congress, endorse, embrace and legalize that behavior out in the open, with barely a peep of real protest. Our laws reflect our values and beliefs. And our laws are about to explicitly codify one of the most dangerous and defining powers of tyranny - one of the very powers this country was founded in order to prevent.

One could cite an infinite number of sources to demonstrate what a profound betrayal this bill is of the fundamental promises of the American system of government. As Justice Jackson wrote in his concurring opinion in Brown v. Allen, 344 US 443, 533 (1953):

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.

Thomas Jefferson, in his letter to Thomas Paine, 1789. ME 7:408, Papers 15:269, said: "I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." And Patrick Henry warned us well in advance about Government officials who would seek to claim the right to imprison people without a trial:

Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings--give us that precious jewel, and you may take everything else! ...Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.

In one sense, these observations are compelling because they define the core of what our country is supposed to be. But in another sense, they don't matter, because our Government is controlled by people and their followers who literally don't understand and, worse, simply do not believe in the defining values and principles of America. They know that this bill is a seizure of the most un-American powers imaginable, but their allegiance is to the acquisition of unlimited power and nothing else.

It was taken as an article of faith by Beltway Democrats that Americans want to relinquish these protections and radically change our system of government in the name of terrorism, so no political figures of national significance really tried to convince them they ought not to. We'll never really know whether Americans really wanted to do this or not because the debate was never engaged. It was ceded.

And as a result, we are now about to vest in the President the power to order anyone - US citizen, resident alien or foreign national - detained indefinitely in a military prison regardless of where they are - US soil or outside of the country. American detainees are cut off from any meaningful judicial review and everyone else is cut off completely. They can be subject to torture with no recourse, and all of this happens on the unchecked say-so of the administration. Really, what could be more significant than this?

... During the debate on his amendment, Arlen Specter said that the bill sends us back 900 years because it denies habeas corpus protections. Then he voted for it.

The American Civil Liberties Union expressed distress as the Senate adopted S.3930, the Military Commissions Act of 2006. That bill is identical to legislation adopted by the House yesterday and removes important checks on the president by: failing to protect due process, eliminating habeas corpus for many detainees, undermining enforcement of the Geneva Conventions, and giving a "get out of jail free card" to senior officials who authorized or ordered illegal torture and abuse.

"This legislation gives the president new unchecked powers to detain, abuse, and try people at Guantanamo Bay and other government facilities around the world," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "Unfortunately for America, the Senate chose not to deliberate today. Instead, it joined the House and President Bush in jamming through a hastily written bill before running home to try to campaign."

Senators rejected several amendments that would have corrected shortcomings in the legislation. The bill gives the president license to weaken enforcement of the basic protections in Common Article 3 of the Geneva Conventions. As passed, the president would have new power to decide much of the scope of authorized conduct and the severity of punishment, giving him unparalleled power to unilaterally determine whether the government can carry out cruelty and abuse.

Additionally, the bill undermines the American value of due process by permitting convictions based on evidence literally beaten out of a witness or obtained through other abuse by either our government or other countries. Government officials who authorized or ordered illegal acts of torture and abuse would receive retroactive immunity for many of these acts, providing a "get out of jail free" card that is backdated nine years.

In the closest vote today, the Senate rejected by a 51-48 vote an amendment by Senators Arlen Specter (R-PA) and Patrick Leahy (D-VT) to preserve minimal protections of the courts in their historical and constitutional role as a check on the executive branch, through habeas corpus.

"Nothing could be less American than a government that can indefinitely hold people in secret torture cells, take away their protections against horrific and cruel abuse, put them on trial based on evidence they cannot see, sentence them to death based on testimony literally beaten out of witnesses, and then slam shut the courthouse door for any habeas petition," said Christopher Anders, an ACLU Legislative Counsel. "But that's exactly what Congress just approved."

"Democrat Minority Leader Nancy Pelosi and 159 of her Democrat colleagues voted today in favor of more rights for terrorists," Hastert said in a statement. "So the same terrorists who plan to harm innocent Americans and their freedom worldwide would be coddled, if we followed the Democrat plan."

The "Democratic plan" is simply to expect the government to obey existing laws rather than brushing them aside with a quick legislative assist, but what is truly offensive and disingenuous about Hastert's attack is the assumption that Democrats want to "coddle terrorists" rather than "protect the innocent." It is astonishing that the GOP, so long distrustful of the ability of government to make decisions wisely, is now populated with members who are certain that the executive branch will never err in taking custody of a suspected terrorist. The rights that protect against a wrongful conviction - freedom from tortured confessions and a ban against the inherently unreliable evidence that coercion produces, confrontation of witnesses, discovery of evidence, judicial review and more - can be safely withheld because of ... presidential infallibility?

… Those who oppose the president's "terrorism" bills recognize that law enforcement agencies - from the smallest police department to Homeland Security and the CIA - don't get it right every time. … Why are Hastert and his ilk so convinced that it is unnecessary to provide terrorism detainees with basic procedural protections that can save the falsely accused from a lifetime of indefinite detention?

It is monstrous that the GOP uses respect for our nation's founding principles as an object of political ridicule and scorn. But it has been monstrous for Republicans to work tirelessly to imprison so many for so long while attacking Democrats for being "soft on crime." And just as it has been frustrating to watch Democrats capitulate on crime (it was Bill Clinton, after all, who signed legislation that severely limited the scope of federal habeas corpus review), it is sad to see Democrats who are unwilling to protect our constitutional values today.

Harry Reid, on the Ed Schultz show today, said there just weren't enough votes to sustain a filibuster. Why not? Why would anyone in the legislative branch tolerate an executive power grab of this dimension? Democrats had the power to stop this arrogant betrayal of the Constitution. Why didn't they exercise that power? Because they didn't want to seem soft on terrorism? What kind of politician are you if you can't explain the difference between "coddling terrorists" and "protecting the innocent from an incompetent branch of government"?

President Bush suggested Thursday that Democrats don't have the stomach to fight the war on terror, battling back in the election-season clamor over administration intelligence showing terrorism spreading.

"Five years after 9/11, the worst attack on the American homeland in our history, Democrats offer nothing but criticism and obstruction and endless second-guessing," Bush said at a Republican fundraiser.

"The party of FDR and the party of Harry Truman has become the party of cut and run," Bush told a convention-center audience of over 2,000 people. The event put $2.5 million in the campaign accounts of Alabama Gov. Bob Riley and the state GOP.

I strongly believe this legislation is unconstitutional. It will almost certainly be struck down by the Supreme Court. And when that happens, we'll be back here several years from now debating how to bring terrorists to justice.

The families of the 9/11 victims and the nation have been waiting five years for the perpetrators of these attacks to be brought to justice. They should not have to wait longer. We should get this right now - and we are not doing so by passing this bill. The National security policies of this administration and Republican Congress may have been tough, but they haven't been smart. The American people are paying a price for their mistakes.

History will judge our actions here today. I am convinced that future generations will view passage of this bill as a grave error. I wish to be recorded as one who voted against taking this step.

The Constitution is the winner in Thursday's decision by a federal judge in Detroit to invalidate the National Security Agency's program of warrantless wiretapping. The Bill of Rights is a constant reminder that the ends do not justify some means. Surely, there would be less crime and more safety if the police could search anyone's person or property, at any time, without a level of suspicion that meets the legal definition of probable cause. But a society that values privacy and dignity does not accord the police such authority, even when the objective is fighting terrorism.

Judge Anna Diggs Taylor followed basic constitutional principles in ruling that the NSA must not engage in warrantless electronic surveillance. The core requirement of the Fourth Amendment is that, subject to narrow exceptions, police searches and wiretaps must be authorized by a warrant issued by a judge and based on probable cause. The framers of the Constitution were deeply distrustful of executive power and wanted to make sure that searches and arrests were authorized by a neutral magistrate.

Federal statutes reaffirm this by requiring the government to obtain a warrant when it engages in wiretapping. Under these laws, the government usually goes to federal district court for the required warrant. Or, if the person it wants to listen in on is thought to be acting at the direction of a foreign power, then the government goes to the Foreign Intelligence Surveillance Court. The law is explicit: The government must follow one of these two procedures before engaging in electronic surveillance.

Under the Bush administration's argument, federal law enforcement could seemingly go into anyone's home, at any time, without a warrant by claiming that it might better catch terrorists. There is simply no obvious stopping point, and that's what makes the president's claim of broad executive power so alarming. Nor is there any reason to believe that warrantless wiretapping is needed to protect national security. The administration could have gone to the Foreign Intelligence Surveillance Court, which approves more than 99 percent of all government requests for warrants. Under the procedures of that court, it even could have gotten the warrant after the surveillance had been done.

Judge Taylor's ruling has been criticized because it did not offer a full explanation for why the NSA's warrantless eavesdropping is unconstitutional. And the judge herself has been derided for overstepping the judiciary's proper role. But critics would have objected to Taylor's opinion no matter how it was written. As for the notion that the judge went too far, it is precisely the role of the federal courts to interpret the Constitution and to determine if it has been violated.

The most important thing to keep in mind, in weighing Judge Taylor's ruling against the government's arguments, is that no administration in memory, and perhaps none ever in American history, has so frequently claimed that it can ignore the Constitution, as well as federal statutes and ratified treaties, to pursue important goals. Lawyers for the Bush administration have argued that the government can engage in torture in violation of federal statutes and treaties in the name of national security. They have claimed the power to detain American citizens as enemy combatants without complying with the Fourth, Fifth, and Sixth Amendments. They have argued that the administration can ignore federal statutes and the Geneva Conventions in imprisoning individuals indefinitely in Guantanamo.

It is the role of the federal courts to say no to such actions. Judge Taylor did exactly that on Thursday. Now it's up to the federal court of appeals and the Supreme Court to back her up.

This ruling … has critical implications for the administration's efforts to change the law so as to legalize its warrantless eavesdropping activities. Sen. Arlen Specter, working in collaboration with the White House, has introduced legislation that would effectively eliminate all restrictions on the president's power to eavesdrop on Americans. That bill would make the process of obtaining warrants optional, rather than mandatory, and it would all but kill off judicial challenges to the legality of the president's eavesdropping.

But the court's ruling today strongly suggests that the Specter bill would be just as unconstitutional as the president's current eavesdropping program. This is because the court found warrantless eavesdropping generally to be a violation of the Fourth and First Amendments. Thus, Congress cannot authorize warrantless eavesdropping via legislation - Congress cannot authorize activities that are unconstitutional - which would preclude enforcement of the Specter bill.

Still, commentators of every ideological stripe have quickly agreed that this opinion is argumentatively weak and thus vulnerable on appeal with respect to several critical issues. The court, for instance, barely explains why warrantless eavesdropping violates the Fourth Amendment, and its discussion of why such eavesdropping violates the First Amendment borders on the incoherent. And with respect to the most difficult hurdle the plaintiffs faced - whether they have "standing" to challenge the NSA program in light of their inability to prove that their conversations were monitored - the court made the best case it could as to why the plaintiffs should be allowed to proceed, but it relied on reasoning that is far from decisive.

Nonetheless, the political significance of this decision cannot be denied. The first federal court ever to rule on the administration's NSA program has ruled that it violates the constitutional rights of Americans in several respects, and that it violates criminal law.

And in so holding, the court eloquently and powerfully rejected the Bush administration's claims of unchecked executive power in the area of national security. The court observed that "it was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights ... We must always be mindful that '[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law.' Clinton v. Jones, 520 U.S. 681, 703 (1997)."

Ever since the 9/11 attacks, the Bush administration has insisted that nothing can restrict the president's decisions in any way with regard to national security, including laws enacted by the coequal branch of government, the Congress. Such a theory is wholly alien to the most fundamental principles that have defined this country since its founding. The court's decision today reaffirms that even in times of war, the president is bound by the rule of law and constrained by the protections guaranteed to Americans by the Bill of Rights. And that the Bush administration simply has no justification for acting outside the parameters of the law.

You know Wolf, it seems like were having this discussion about this judge's ruling sort of in the abstract, as if there's no precedent for what the judge decided. The judge in effect upheld the ruling of the FISA court which says that 'if you want to wiretap phones you need a warrant to do so'. The court was created by Congress in 1978 I think it was and the law of the land says, "Get a warrant". The actions of the administration have ignored the law of the land in that regard. So it's not a discussion in the abstract. It's not hypothetical. There are laws on the books against what the administration is doing and it's about time someone said it out loud.

This Federal district judge ruled today President Bush is breaking the law by spying on people, in this country, without a warrant. The judge said the President is violating the First Amendment to the Constitution. The Fourth Amendment to the Constitution, and the Foreign Intelligence Surveillance Act FISA, passed by Congress 1978, specifically to prevent this kind of abuse of power. It was being done before. That's why the FISA court was created in the first place.

So what does this mean? It means President Bush violated his oath of office, among other things, when he swore to uphold the Constitution of the United States. It means he's been lying to us about the program since it started, when tells us there's nothing illegal about what he's doing. A court has ruled it is illegal. And it means a 75 year old black female judge in Michigan has finally stepped in and done the job that Congress is supposed to do, namely oversight of the executive branch of government. But the gov… but the Congress is controlled by Republicans. They are controlled by the President, and they have done nothing in the way of oversight.

… judicial decisions are starting to emerge which come close to branding the conduct of Bush officials as criminal. FISA is a criminal law. The administration has been violating that law on purpose, with no good excuse. Government officials who violate the criminal law deserve to be - and are required to be - held accountable just like any other citizens who violate the law. That is a basic, and critically important, principle in our system of government. These are not abstract legalistic questions being decided. They amount to rulings that our highest government officials have been systematically breaking the law - criminal laws - in numerous ways. And no country which lives under the rule of law can allow that to happen with impunity.

Partisan gerrymandering is wrong, and it is a constitutional wrong, for it involves discriminating against some voters on the basis of their political beliefs and interfering with the process of self-government by the majority. But what is a court to do? An appreciation of the political effects of different districting plans cannot be eradicated from the legislative mind. How much consideration is too much? How is a court to tell? And will the body politic believe that federal judges, because they are unelected, are disinterested referees of the political process?

Until I heard the oral argument, I thought that the Texas case might be the exceptional one in which there was actually a judicially manageable standard that could be invoked to set aside what the state legislature had done. The facts suggest a perfect storm of partisanship: Texas had adopted a Democratically biased congressional redistricting plan in 1990; a split in the control of the state legislature had led to deadlock over the required decennial redistricting in 2001; a court had to act to adopt a plan. Tom DeLay, accusers said, raised illegal corporate money to gain control of both state houses, tried to get the Federal Aviation Authority to monitor Democrats fleeing to Oklahoma to defeat a quorum, and pushed through a partisan plan that made the Texas delegation to Congress heavily Republican.

Finally, it seemed, a case that could be resolved with a "judicially manageable standard." Given the almost unbroken tradition, pegged to the census clause of the Constitution, that the lines for Congressional districts are redrawn every 10 years, some explanation is required for the highly unusual act of the Texas mid-decade gambit. Of the Texas move it can truly be said, to paraphrase the late coach Vince Lombardi, "Partisanship was not the most important thing; it was the only thing."

One sentence leaps out in today's controlling opinion by Justice Kennedy in the Texas redistricting case. He is writing about the decision of the newly installed Republican majority in the Texas state legislature to take the highly unusual step of redistricting the state's U.S. congressional seats in the middle of a decade - specifically, this one. And he says: "The legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority, but partisan aims did not guide every line it drew."

I would have thought the first part of that sentence would have disposed of the case: If the legislature has decided to undertake an action "for the sole purpose of achieving a Republican congressional majority," it has right then and there failed the basic constitutional test that all legislative acts must, at the very least, serve some legitimate legislative purpose. An act with the "sole purpose" of achieving a partisan aim does not satisfy that standard.

The decision, five justices - Kennedy, Stevens, Souter, Breyer and Ginsburg - reject the Bush administration's argument that the power to try detainees by military tribunal was implied in the Authorization for Use of Military Force approved by Congress in the days after 9/11.

... the Bush administration has advanced exactly the same argument in support of its warrantless wiretapping program. That is, Attorney General Alberto Gonzales and other administration officials have argued that Congress somehow implicitly authorized the warrantless wiretapping of American citizens when it passed the Authorization for Use of Military Force, or AUMF, in 2001.

So if the AUMF didn't implicitly authorize the use of military tribunals at Guantánamo, it probably didn't authorize the warrantless wiretaps either, right? That's how it seems, but readers with a keen memory will recall that in the Hamdi v. Rumsfeld decision in 2004, five justices - O'Connor, Rehnquist, Kennedy, Breyer and, in a separate opinion, Thomas - reached the conclusion that the AUMF did authorize the detention of enemy combatants for the duration of the conflict in which they were captured. Sandra Day O'Connor wrote then that it is "of no moment" that the AUMF says nothing about detaining enemy combatants. "Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war," O'Connor said, "in permitting the use of 'necessary and appropriate force,' Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.'"

Why is the outcome in Hamdan different?

Assuming a legal challenge ever got to the Supreme Court, the outcome could turn on two questions. First, does the Foreign Intelligence Surveillance Act leave open the possibility that another "Act of Congress" might authorize spying without the warrants FISA requires? Although FISA itself says it's the "exclusive means by which electronic surveillance ... may be conducted," the administration has argued that FISA actually contemplates the possibility that a future act of Congress could expand the president's surveillance authorities. But even assuming the court agreed with that view, it would still have to grapple with the second question: If FISA does contemplate additional, broader authorizations for electronic surveillance, did the AUMF amount to one? To answer that question, the court would have to decide whether spying on American citizens - and, arguably, doing so without a warrant - is such an inherent part of waging war that the power to do so must be read into the AUMF in the same way that the power to detain enemy combatants was.

More importantly, the Court held that Common Article 3 of Geneva applies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever" - including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment.

... This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the administration has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

It remains one of the most chilling public statements by a senior Bush administration official. Testifying before the Senate Judiciary Committee in December 2001, Attorney General John Ashcroft blustered, "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists - for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends."

Ashcroft's inflammatory claim that civil libertarians were arming al-Qaida came on a day when the attorney general had the unsavory duty of defending the administration's initial rules covering military tribunals. Now four and a half years later, the Supreme Court's end-of-the-session decision in Hamdan v. Rumsfeld both rejected these military tribunals and quickened the hearts of civil libertarians.

Read narrowly, the court's ruling applies only to the roughly 450 prisoners held at Guant?namo. In fact, Thursday's decision does not even guarantee any kind of trial for these detainees. As Justice Paul Stevens noted in his majority opinion, "Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities." Yet such a gimlet-eyed interpretation may be the equivalent of believing that Brown v. Board of Education applies only to schools in the greater metroplex of Topeka, Kan.

It is possible that Hamdan may someday be seen as the turning point in repudiating the Bush-Cheney view that all branches of government are equal but some are more equal than others. An optimist could find persuasive evidence in the decision that the Supreme Court was, in effect, saying to the White House: "Enough of your cockamamie theories about the all-powerful president in wartime. Enough of your cloud-cuckoo readings of the resolution that Congress passed after Sept. 11. And enough of your cataclysmic claims that the war against al-Qaida requires a wanton disrespect for international law and the norms of civilized behavior."

... the most compelling passage in Stevens' opinion is this four-word sentence: "That reasoning is erroneous." The octogenarian justice was rejecting the government's cherished argument that not one syllable of the Geneva Conventions applies to alleged al-Qaida captives at Guant?namo. Stevens held that, at minimum, Hamdan and his companions on the American-held tip of Cuba are covered by the portions of the Geneva Conventions that regulate the treatment of prisoners in civil wars and similar conflicts.

I am struggling to feel the same euphoria about the court's repudiation of President Bush's military tribunals in today's rather stunning Hamdan decision.

... If Lederman is right on this, I can take some comfort in an opinion that's about more than just a handful of guys at Guantanamo whose trials are on hold. But for the moment, I am trying to imagine explaining to Mr. Hamdan that the good news today is that he doesn't get a trial at all. The court finds that Hamdan can be detained "for the duration of active hostilities." It's not like the base at Guantanamo has to be closed. This case may not have that much immediate impact, outside of Guantanamo, but as a judicial smoke signal to the president, it's a whopper.

... Today's rebuke to the president still feels hollow to me because I just don't believe the Bush administration cares what the Supreme Court thinks about the constraints on executive war powers. As a legal matter, Bush lawyers always claimed they'd won the last round of enemy combatant cases, even when the rest of us heard O'Connor's admonition, in Hamdi v. Rumsfeld, about a state of war not being a "blank check" for the president. As a practical matter, even if it's true that U.S. forces and interrogators must now abide by the Geneva definition of torture, when is the petition for relief of a tortured detainee going to present itself before this court? And even if Guantanamo is closed, which I gather may soon happen, what is to stop Bush from falling back on secret prisons and extraordinary renditions - which we will never know about?

When I covered oral argument in Hamdan, I marveled at how Solicitor General Paul Clement unfailingly staked out the most extreme legal positions - positions that seemed utterly contemptuous of the court - and then refused to budge from them. He told an astonished Justice David Souter that it was possible for Congress to suspend the writ of habeas corpus accidentally. He told Justice Ruth Bader Ginsburg that enemy combatants simply have no rights under the Constitution and laws of the United States. He just kept repeating the Bush administration mantra: This is war and President Bush is king of the war.

At the time, I wondered how such an unbending, unyielding view of the law, and the world, made any sense. It didn't seem to me a particularly helpful tactic in dealing with a Supreme Court that thrives on nuance. When you're talking to nine people who can churn out 132 pages of painstakingly detailed nuance on a regular basis, does the argument that the president thinks courts are soft, sloppy, and slow really seem like a winner?

... Do the Bush folks take this simplistic view of their own power - throwing around ideas like "unitary executive" and FISA-as-optional - because in the end, they just don't care what the courts think?

The administration isn't really asking for constitutional blank checks. Why should it, when the president thinks he has his own constitutional Swiss bank account?

... Does the president believe he is bound by this decision? Does he refuse to send a really senior representative to a Senate Committee hearing on signing statements; or offer substantive responses to congressional questions about warrantless wiretapping; or offer a nuanced argument to the high court to make clear that he's not accountable to any of those entities? And if the administration refuses to be accountable, then what will today's decision actually achieve? It's all very good for Mr. Hamdan and his nine friends at Guantanamo. But won't it encourage Bush to detain/render/wiretap/torture in even greater secrecy?

Cheer me up, Obi-Wan, you're my only hope.

Because in order to understand the larger significance of today's decision, it is important to be clear about exactly how this presidency departed from fundamental legal principles. The problem is not the president's assertion that he can ignore laws he believes to be unconstitutional. The problem is what laws he believes to be unconstitutional.

For the proposition that the president has the authority to decline to abide by statutes he views as unconstitutional, the administration has relied principally on an opinion I authored as head of the Office of Legal Counsel in 1994. And rightly so. That opinion is based upon long-standing and consistent executive practice. Moreover, the most relevant U.S. Supreme Court decision, Myers v. United States, 272 US 52 (1926), by clear implication considers it appropriate for a president to decline to execute unconstitutional statutes. And as President Carter's Attorney General Ben Civiletti wrote in an 1980 opinion, the president's constitutional duty to execute the laws "does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts."

This view is based upon the principle that the president's ultimate obligation is to the Constitution, and if a statute contravenes the Constitution, the president has the authority to decline to enforce it. This applies to laws that unconstitutionally impinge upon the president's own power. It is also unremarkable for a president to announce his view that a provision is unconstitutional in a statement issued when he signs the law.

The problem has been what those presidential signing statements say - even worse, what the legal opinions intended to be secret assert. They claim that laws whose validity has never been seriously questioned are unconstitutional based on extravagant and untenable theories of presidential power.

The fundamental, profound category error made by the administration has been to confuse two utterly different meanings of the term "inherent presidential power." One meaning would refer to what the president has authority to do on his own in the fields of national security and armed conflict when Congress has not acted. That should be a very broad area. The term "inherent presidential power" could also be taken, however, to refer to matters so deeply at the core of presidential authority that that any act of Congress that regulated or limited the exercise of that power would be unconstitutional - even if Congress was acting under legislative powers clearly conferred by the Constitution. That should be an exceedingly small set of matters.

This administration has taken the astounding position that if the president has 'inherent authority' to do an act whenever Congress is silent, then it follows that any act of Congress that regulates such an authority is an invalid impingement on his "inherent power." This conflation of what a president can do if no law prohibits his action and what he can when the law forbids it is a truly insidious legal doctrine.

The court made short work of it today. RIP "inherent presidential authority" to violate valid laws.

This seemingly simply proposition has huge consequences.

... Today's decision has been criticized by conservatives on the court and by some off the court. But just as this is not a victory for terrorists, neither is it a defeat for conservatives, as many will come to realize. Placing the presidency back under the law will look quite different to critics when there is a president less to their liking in the White House.

The Bush administration likely will have to extend rights to terrorism suspects at the U.S. military prison at Guantanamo Bay, Cuba, that it has denied for years, after the Supreme Court invalidated the government's system of military trials and ruled that the detainees must be treated according to international standards, officials and experts said yesterday.

Senior administration officials acknowledged that the ruling scuttles their plans to put as many as 80 detainees through administration-created "military commissions" - with extremely limited rights - and said it is unclear how they will respond. The 5 to 3 ruling in Hamdan v. Rumsfeld sent officials scrambling to evaluate options for the 450 detainees at Guantanamo Bay, some of whom have been held for more than four years without trial.

The choices, experts and government officials said yesterday, largely include putting suspects through time-tested military courts-martial, charging them in U.S. criminal courts or working with Congress to develop new rules to comply with the court's decision.

The administration could also ask foreign governments to try the more than 150 prisoners it considers hard-core terrorism suspects. The rest are likely to be returned to their home countries for further detention or release.

But if the United States decides it wants to hold the trials, detainees probably would gain more access to the evidence against them and the right to be present for much or all of the proceedings - both of which were denied in some circumstances under the military commission rules, the experts and officials said.

The court did not rule on whether Guantanamo Bay should be closed, and its action does not affect operations at the facility. Military officials said yesterday that scheduled military commission hearings for 10 suspects have been suspended.

Retired Army Gen. Barry R. McCaffrey, a professor of international affairs at the U.S. Military Academy who visited Guantanamo Bay last week, said the military commissions were destined to fail. He said the government should have used courts-martial and the Uniform Code of Military Justice (UCMJ), which grants defendants more rights.

"We put ourselves in an unnecessary legal mess from the beginning, and now we've gotten ourselves in such a mess legally and politically, there's no easy solution," McCaffrey said yesterday.