A limited ruling, and very, very late, but one that spells out some of the painfully-obvious points about these military tribunals that were slammed together, in a hurry, in the law-free gulag playland the Bush Administration has put together there at Guantanamo.
Most significant is this:
3. That Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. (See also the AMK concurrence: "The provision is part of a treaty the United States has ratified and thus accepted as binding law. By Act of Congress, moreover, violations of Common Article 3 are considered 'war crimes,' punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U. S. C. § 2441.") This ruling has enormous implications for the Administration's detention and interrogation practices, because the Administration's legal conclusion that CA3 does not apply, and that we will not apply it as a matter of practice, was the key linchpin to the entire edifice of legal maneuvers that led to waterboarding, hypothermia, degradation, etc. See my post here. Per today's decision, the Administration appears to have been engaged in war crimes, which are subejct to the death penalty. Although I don't think due process would allow prosecution based on conduct previously undertaken on OLC's advice that CA3 did not apply (after all, the Chief Justice concluded, in the D.C. Circuit, that CA3 did not apply), practices going forward are bound to change, and quick. (I'm sure the memos are being drafted and distributed in the CIA and DOD even as we "speak.")Here is the news from Reuters:
In a sharp rebuke of President George W. Bush's tactics in the war on terrorism, the U.S. Supreme Court on Thursday struck down as illegal the military tribunal system set up to try Guantanamo prisoners.
By a 5-3 vote, the nation's highest court declared that the tribunals, which Bush created right after the September 11 attacks, violated the Geneva Conventions and U.S. military rules.
"We conclude that the military commission convened to try (Salim Ahmed) Hamdan lacks power to proceed because its structure and procedures violate" the international agreement that covers treatment of prisoners of war, as well as the Uniform Code of Military Justice, Justice John Paul Stevens wrote for the court majority.
The decision was a stinging blow for the administration in a case brought by Hamdan, who was Osama bin Laden's driver in Afghanistan. Hamdan, captured in November 2001, is one of about 450 foreign terrorism suspects at the U.S. naval base in Guantanamo Bay, Cuba.
... Stevens, at 86 the high court's longest-serving justice and a leading liberal, said the tribunals failed to provide one of the most fundamental protections under U.S. military rules, the right for a defendant to be present at all proceedings.
"The rules specified for Hamdan's trial are illegal," he said.
In a 73-page opinion, he also said there was no reason why Hamdan could not be tried by court-martial, which offers greater protections for defendants than the tribunal.
At the White House, Bush said he had not fully reviewed the ruling and would consult with the U.S. Congress to attain appropriate authority for military tribunals.
...A Pentagon spokesman reiterated the need for a U.S. facility to hold dangerous captives and Bush spokesman Tony Snow added, "This will not mean closing down Guantanamo."
...Civil liberties and human rights groups were also jubilant. Amnesty International said it "sends a clear message to President Bush that he cannot act unilaterally to create a system of law from thin air."
... Stevens said the military commissions were not authorized by the U.S. Congress. He did not address whether the government can detain Hamdan indefinitely but said the government must "comply with the rule of law" in seeking to try Hamdan and subject him to criminal punishment.
... He was joined by the other liberal justices David Souter, Ruth Bader Ginsburg and Stephen Breyer, and moderate conservative Anthony Kennedy.
Breyer wrote in a separate opinion, "The court's conclusion ultimately rests on a single ground: Congress has not issued the executive a 'blank check.'"
The conservatives -- Justices Antonin Scalia, Clarence Thomas and Samuel Alito, who was appointed by Bush -- dissented.
The ninth member of the court, Chief Justice John Roberts, also appointed by Bush, removed himself because he was on the U.S. appeals court panel that ruled for the Bush administration in Hamdan's case.
Republican lawmakers vowed to act quickly in view of the ruling. Senate Armed Services Committee Chairman John Warner of Virginia said his committee would consider revising laws governing the detention of enemy combatants.
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