"It is not the presidency that 'won.' Instead, it is the judiciary that lost."

John Yoo has a new piece about the new military commission law, which Bush signed on Tuesday:

The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor "combatants" in an internal civil war under Article 3.

Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged. After all, it has gotten away with many broad assertions of judicial authority before. This has been because Congress is unwilling to take a clear position on controversial issues (like abortion, religion or race) and instead passes ambiguous laws which breed litigation and leave the power to decide to the federal courts....

This time, Congress and the president did not take the court's power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions...

The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.

Read the whole thing. I think Yoo overdoes it describing what a rebuke this is to the Supreme Court. The analysis in Hamdan relies heavily on the lack of congressional support for things the Executive was doing, so it makes sense to see the new legislation as providing the legislation the Court thought was needed -- responding to Hamdan, not slapping back at it. The question is: How will the Court respond now that the moderate ground for opposing the President is gone? To preserve the courts' role in the face of the new statute will take something more like what Yoo calls "cater[ing] to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations."