SCOTUS Rules No Military Tribunals

From the AP:

The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

The ruling, a rebuke to the administration and its aggressive anti- terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions.

The case focused on Salim Ahmed Hamdan, a Yemeni who worked as a bodyguard and driver for Osama bin Laden. Hamdan, 36, has spent four years in the U.S. prison in Cuba. He faces a single count of conspiring against U.S. citizens from 1996 to November 2001.

Two years ago, the court rejected Bush’s claim to have the authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. In this follow-up case, the justices focused solely on the issue of trials for some of the men.

The vote was split 5-3, with moderate Justice Anthony M. Kennedy joining the court’s liberal members in ruling against the Bush administration. Chief Justice John Roberts, named to the lead the court last September by Bush, was sidelined in the case because as an appeals court judge he had backed the government over Hamdan.

Thursday’s ruling overturned that decision.

From SCOTUSBlog:

The Supreme Court ruled on Thursday that Congress did not take away the Court’s authority to rule on the military commissions’ validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the commissions illegal under both military justice law and the Geneva Convention. The vote was 5-3, with the Chief Justice not taking part.

The Court expressly declared that it was not questioning the government’s power to hold Salim Ahmed Hamdan “for the duration of active hostilities” to prevent harm to innocent civilians. But, it said, “in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”

Jonathan Adler at NRO’s Bench Memos has analysis:

The Supreme Court’s assertion of jurisdiction over , and subsequent invalidation of, the military tribunals should not come as a surprise. According to early reports, the Court specifically held that the commissions were illegal under both domestic and international law. On the other hand, the Court apparently reaffirmed the executive’s authority to detain enemy combatants for the duration of hostilities. Justice Stevens wrote the primary opinion, though there is also a concurrence by Justice Kennedy. Justices Scalia, Thomas, and Alito dissented, and each wrote an opinion.

Here’s more from Marty Lederman from SCOTUSBlog, who says that this ruling will have a huge impact on our war on terror:

More importantly, 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…

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).

If I’m right about this, it’s enormously significant.

Ed Morrissey agrees that this ruling is detrimental to our ability to wage a war on terror (or any future war for that matter) because it requires that our government give Geneva convention protections to an enemy that doesn’t qualify:

I haven’t read the decision, but the reliance on the Geneva Convention seems strange. The convention binds nations when dealing with other signatories, not with those who have not agreed to reciprocity. The terrorists we have captured do not wear uniforms to distinguish themselves from civilians; in fact, they take great pains to hide themselves among civilians, deliberately target civilians, and use civilians as human shields. Applying Geneva Convention protections to these terrorists undermines the primary reason for these conventions: protection of civilians. They now will pay no penalty for their disregard for the rules of war, thanks to SCOTUS.

So, did the SCOTUS just rewrite the Geneva Convention from the bench, at least how it applies to America? If this is the case, then no other country that is a signatory to the Geneva Convention is bound by the same requirements that our SCOTUS just said the US is bound by. This makes no sense.

Stop the ACLU is following the reaction as well.

AJ Strata says if we can’t try them, then just fry them.

[I]if we can’t try them without exposing more national security details to the enemy through (our? their?) the press we will just have to kill them. Bring on more virgins!

Update: According to the Rear Admiral Harry Harris, the Gitmo commander, there will be very little impact at the prison:

GUANTANAMO BAY U.S. NAVAL BASE (Reuters) – A U.S. Supreme Court ruling on war crimes tribunals being held at Guantanamo navy base will have little effect on the detention camp that holds 450 foreign captives, the camp commander said.

“I don’t think there’s any direct outcome on our detention operation,” Rear Adm. Harry Harris, the prison commander, said in an interview this week…

…Harris said he would build a second courtroom if the tribunals are allowed to proceed but little else would change because the court was not asked to rule on Guantanamo itself, a prison camp that human rights groups, the United Nations and foreign governments have sharply criticized.

Update II: Read the decision here.

Update III: Both Justices Scalia and Thomas argue in their dissents that the Supreme Court didn’t have any jurisdiction to hear Hamdan’s case because of the language in the Detainee’s Treatment Act (DTA) which congress enacted on December 30, 2005. From Justice Scalia’s dissent, page 103 of the decision:

On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides, that as of that date, “no court, justice, or judge” shall have juridiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the court today concludes that, on what it calls the statutes most natural reading, every “court, justice, or judge” before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous…

…The DTA provides: “[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.”

So, unless the SCOTUS ruled that the DTA is unconstitutional, then shouldn’t today’s decision mean absolutely nothing since it’s a violation of a standing law?

Lyle Denniston of SCOTUSBlog also points out, if the president isn’t happy with this decision, that he can go back and ask congress to change the law:

Justice Breyer, joined by Ginsburg, Kennedy and Souter, wrote separately to answer the dissenters’ complaint that the ruling would hamper the President’s ability to deal with a new and deadly enemy. The Court’s conclusion, Breyer said, “ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.’…Indeed, Congress has denied the President the legislative auhority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.

But if SCOTUS is already ignoring a law that is on the books which says “no court, justice, or judge” has jurisdiction over Hamdan’s petition, then what will keep SCOTUS from ignoring a new law?

Update IV: Hot Air has video of President Bush’s comments on the Hamdan decision.

Update V: Ann Althouse provides her insight into the SCOTUS’s interpretation of the jurisdiction statute that Justice Scalia quoted:

But the majority’s straining to read the DTA to preserve jurisdiction does not at all surprise me (a federal jurisdiction scholar). It is standard practice for the Court to read statutes that purport to cut back jurisdiction in a way that is defensive of the role of the judiciary. Justice Stevens’s opinion discusses some of those cases. He doesn’t even reach the question of whether the Constitution permits the cut back. This is an issue that he avoids — in the style of many other cases.

In other words, liberal activist justices interpret laws that cut back on jurisdiction in such a way so that it benefits them. So what does this mean? We need strict constructionists.

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  1. DavidB June 30, 2006