By Mark David Blum, Esq.

John Yoo, Law Professor at the University of California at Berkeley, was the chief architect of the legal strategy employed by the White House in its so-called War on Terror. Those saged opinions, backed up by then Attorney General John “I-cant-beat-a-dead-guy-in-an-election’ Ashcroft, the President and the uber President (Office of the Vice President) forged ahead with their current strategies in Guantanamo and domestic and foreign spying. At last count, the President had violated more than 750 domestic and international laws. Until yesterday, nobody in official Washington seemed to give a damn. Today, poor Mr. Yoo is whining about being so very wrong.

Yesterday, the United States Supreme Court drew a line in the sand. The case, Hamdan v. Rumsfeld very clearly told the President that his procedures and prosecutions at Guantanamo Bay are unconstitutional.

The case itself is a disaster. It scores very low on the readability scale and even lower on its leadership role. It is also a very precise decision. Apparently the Court suffers from the same fractures now that do we here in common society. Though built of concrete logic and law, and bolstered by breathy and longwinded 'concurring opinions', the Hamdan decision makes clear what is taught in first year civics classes. Congress legislates, not the Executive. Congress creates the Courts and the procedures and the laws. The Executive only follows and enforces the laws and procedures dictated by the Legislative branch.

With each passing year, I become more amazed at how many fewer cases the Supreme Court decides each year, yet at the same time how many more opinions, side opinions, partial concurrances, sorta kinda agreements, and lack of pure strong cohesiveness in the opinion writing. Is it that the judges really cannot find a solid and clean position on any issue? Perhaps the learned Ones just want to see themselves published.

The following are some excerpts from Hamdan. You decide for yourself if the Court reasoned properly. Before you read, however, remember these two principles: We are not a nation at War. Only congress has the power to declare war; and they have not. Nor is there a state of emergency as there has been no legislative declaration.

"The charge's shortcomings are not merely formal, but are indicative of a broader inability on the Executive's part here to satisfy the most basic precondition--at least in the absence of specific congressional authorization--for establishment of military commissions: military necessity. Hamdan's tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities.

“Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001 and the AUMF. That may well be a crime, but it is not an offense that "by the law of war may be tried by military commissio[n]." 10 U. S. C. §821.

"None of the overt acts alleged to have been committed in furtherance of the agreement is itself a war crime, or even necessarily occurred during time of, or in a theater of, war. Any urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and he was not charged until mid-2004.

“Every commission established … must have a presiding officer and at least three other members, all of whom must be commissioned officers. The presiding officer's job is to rule on questions of law and other evidentiary and interlocutory issues; the other members make findings and, if applicable, sentencing decisions. The accused is entitled to appointed military counsel and may hire civilian counsel at his own expense so long as such counsel is a U. S. citizen with security clearance "at the level SECRET or higher."

"The accused also is entitled to a copy of the charge(s) against him, both in English and his own language (if different), to a presumption of innocence, and to certain other rights typically afforded criminal defendants in civilian courts and courts-martial. See §§5(A)-(P).

“These rights are subject, however, to one glaring condition: The accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding that either the Appointing Authority or the presiding officer decides to "close."

"Another striking feature of the rules governing Hamdan's commission is that they permit the admission of any evidence that, in the opinion of the presiding officer, "would have probative value to a reasonable person." Under this test, not only is testimonial hearsay and evidence obtained through coercion fully admissible, but neither live testimony nor witnesses' written statements need be sworn. Moreover, the accused and his civilian counsel may be denied access to evidence in the form of "protected information" (which includes classified information as well as "information protected by law or rule from unauthorized disclosure" and "information concerning other national security interests," so long as the presiding officer concludes that the evidence is "probative" and that its admission without the accused's knowledge would not "result in the denial of a full and fair trial."

As you can see, Mister Bush on his own, created a prison camp at Guantanamo Bay, is holding prisoners on blank allegations of “conspiracy” without having a “to do what” attached, provides a trial based on hearsay, secret evidence presented to the jury without the defendant even knowing, and it just gets worse. Despite all this, the Supreme Court still did not rebuke the President for its inhuman treatment or ridiculous dismissal of the barest of due process. Shame on them for that shortcoming in their expositions.

John Woo is the architect of this horror show. If you read his published response, you can almost see him red-faced and stamping his feet, calling names, and predicting the end of civilization as we know it.

For example, ‘Perfesser BooHoo’ Yoo referred to the Zacarias Moussaoui trial as a circus. I saw it as a proper application of American justice. That defendant even had a lawyer, faced his accusers and challenged the evidence against him.

Yoo’s other big boo-boo was referring to “Judicial intervention in the decisions of the president on how best to wage war.” There is no war; none has been declared. The Supreme Court did not comment on waging war; but rather on waging law and order.

I remember way-back-when at the time Yoo’s diatribe as to the scope and reach of the President’s power was first released. Some may argue that his writing was a legal opinion provided to a client; even if it is flatly wrong. When I read it, I saw not a legal opinion, but a blue print written by a co-conspirator giving direction on how to evade and ignore the law and how to get away with it.

The essence of the Supreme Court decision was the Congress and only Congress can create tribunals and rules and procedures that apply thereto. Congress did no such thing. The Executive Branch has no such authority and were flatly rebuked on claims to the contrary.

We have seen what happens when people are held without lawyer, charge, arraignment, or procedure. Click here to see a perfect example of why we must NOT sacrifice our most basic principles no matter what the situation. The innocent must not suffer for the sins of the guilty. Though Christians believe strongly in such a concept, Americans do not.

There will always be a place in history for Mr. Yoo. It is called a prison cell.

People like him, history should never forget.