[published on June 30, 2006 in my previous blog, "The Flatland Oracles"]
The Supreme Court clips Bush's war wings. In a major rebuke to the president's draconian tactics, the court rules that secret military tribunals for terror suspects fundamentally violate U.S. and international law.
[quote from Salon begins]
Probably 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 Guantánamo. 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.
Marty Lederman, a Georgetown law professor who contributes to SCOTUSblog, was among the first to grasp the implications of the Geneva Conventions portion of the opinion. As Lederman recounted in a Thursday afternoon interview, "When I saw it, I thought it was the big kahuna." Under Lederman's reasoning, if al-Qaida members are covered by at least portions of the Geneva Conventions, as the opinion confirms, then so would be American soldiers and CIA operatives. Not only do these treaties set fair-trial standards for military commissions, but they also (much to the horror of Cheney and company) mandate the humane treatment of prisoners.
Further:
In the Hamdan decision the court also vigorously dismissed the claim that Congress had already ceded to the president any power he wants to assert under the guise of battling al-Qaida. Jeffrey Rosen, a law professor at George Washington University and the author of "The Most Democratic Branch," a just-published portrait of the Supreme Court, said, "They completely rejected the notion that the president can do whatever he likes because of the post-9/11 'Use of Force' resolution."
[quote from Salon ends]
Bush's War Powers: How Much of a Setback? The Supreme Court's ruling in the Hamdan case could have an effect far beyond the military tribunals that have been ruled illegal
[quote from the Time Online article begins]
The most bruising blow today to the Bush Administration's approach to the war on terror was not simply the Court's decision that the special military tribunals the White House had designed were illegal. It was how dramatically the decision seems to dial back the clock to pre-9/11 legal thinking.
The Court ruled that that the Geneva Convention does apply in the case of prisoners like Salim Hamed Hamdan, an admitted supporter of al-Qaeda captured in Afghanistan. The Bush Administration has spent almost five years arguing just the opposite. And if the Geneva convention applies in the case of Hamdan, it presumably applies for all 15,000 detainees held worldwide in the war on terror.
The most immediate effect of the ruling will be to scrap the Administration's current military tribunals. The court did leave open to possibility that the White House can ask Congress to have its special court system enshrined in law. But that is a humbling alternative for an Administration that has long held that the President's inherent war-time powers allow him to conduct such tribunals without consulting Congress.
The court issued a strong rebuke to the President in other ways as well. Justice Anthony Kennedy's concurring opinion reafirmed a standing legal precedent that the President's authority is limited in areas that have already defined laws — even, Kennedy pointedly adds, in "time of crisis." This could call into question the President's authority to authorize domestic wiretapping without a warrant.
What's more, the court's ruling that Common Article 3 of the Geneva Convention applies to a detainee at Guantanimocould open the floodgates for courts to decide whether other parts of Common Article 3 also apply — such as the language that prohibits "outrages of personal dignity, in particular, humiliating and degrading treatment" of prisoners. This is particularly relevant as the Pentagon is in the middle of rewriting the Army Field Manual governing the treatment of prisoners. The Administration has maintained that the guidelines for handing detainees don't have to be in line with Common Article 3, but the Court has just made that argument much more difficult to" make.
[quote from Time Online article ends]
Harry Shearer: What The Supreme Court's Saying, Maybe.
[quote from Shearer's blog begins]
I certainly haven't caught all the strands of commentary on the Court"s Hamdan decision, but what I've heard and read seems to me to ignore the real point of the opinion: that the Court took the case for consideration at all. As I dimly recall my Con Law studies, Supreme Courts are nototiously hesitant to review Presidential powers during wartime. Think of the Court refusing to prevent the incarceration of perfectly innocent Japanese-Americans during World War Two.
Think of the Court refusing to slap down Lincoln's suspension of habeas corpus during the Civil War.
To even reach the point where this decision could be considered, the Court majority had to reach the conclusion that the War on Terror isn't really a war. Politicians--especially of the HWC stripe--cannot make this case in public, and apparently Supreme Court Justices can't, either. But it's impossible to conceive of this, or any, Supreme Court slapping down the President in World War Two, or One, or the Civil War. Korea? The Court did challenge Truman's attempt to seize the steel industry, but Korea was a United Nations police action, or so it said on the official papers.
[quote from Shearer's blog ends]
The Court majority may be sending the sub-textual message that the war metaphor is too much hat and not enough cattle.
[quote from CNN.com begins]
President Bush:
"One thing I'm not going to do, though, I'm not going to jeopardize the safety of the American people," Bush said, adding, "I understand we're in a war on terror, that these people were picked up off of a battlefield."
He said the White House will work with lawmakers, with some senators seeing "a way forward with military tribunals in working with the United States Congress."
Senator Majority Leader Bill Frist of Tennessee said Thursday afternoon that he would introduce legislation after the Fourth of July break that would authorize the military tribunals.
"To keep America safe in the war on terror, I believe we should try terrorists only before military commissions, not in our civilian courts," Frist said.
Sen. Lindsay Graham, R-South Carolina, already has offered to work with the White House to draft legislation that would allow the administration to try the Guantanamo detainees before a military tribunal.
[quote from CNN.com ends]
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