Everybody’s up in arms this evening about the Supreme Court’s Hamdan Decision:
The Supreme Court today delivered a stunning rebuke to the Bush administration over its plans to try Guantanamo detainees before military commissions, ruling that the commissions violate U.S. law and the Geneva Conventions governing the treatment of war prisoners.
In a 5-3 decision, the court said the trials were not authorized by any act of Congress and that their structure and procedures violate the Uniform Code of Military Justice (UCMJ) and the four Geneva Conventions signed in 1949.
Predictably, some on the right are apoplectic, while some of their counterparts on the left are gleeful. Since Polimom isn’t an expert in this area, it took some digging to find the bottom of the dogpile.
Basically, the Court said that as it stands right now, Bush does not have authority to order military commissions to try Guantanamo detainees; he requires Congressional authority (and he’s already said he’s going to go ask for it…)
So yes, the Supreme Court does seem to have clipped Bush’s wings a bit, and even delivered a bit of a smack upside the head by ruling that he’s overstepped his authority. To use Jack Balkin’s phrase, the Court has made a democracy-forcing decision:
I repeat: nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do. What the Court has done, rather is use the democratic process as a lever to discipline and constrain the President’s possible overreaching. Given this Administration’s history, that’s not necessarily a bad thing.
Read the entire piece; it’ll either peel you back down off the ceiling, or let a bit of helium out of your balloon (depending).
According to the SCOTUSblog, though, there’s far more involved in the Hamdan ruling:
Even more importantly for present purposes, the Court held that Common Article 3 of Geneva aplies 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. See my further discussion here.
This almost certainly means that the CIA’s interrogation regime is unlawful, and indeed, that many techniques the Administation 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).
I have no idea, frankly, whether this interpretation is correct, but it’s certainly interesting.
All in all, I see this as a triumph for our system of government, with the Supreme Court performing precisely as it was designed to do.
Some excellent discussion and analysis can be found below (I’ll update as I come across more):
Glenn Greenwald
The Volokh Conspiracy
Outside the Beltway
Jon Swift
ACSBlog