June 29, 2006

SCOTUS Rules Against Bush

The Supreme Court ruled 5-3 against the administration in the Hamdan case. Terrorists can not be tried by special military commissions.

From SCOTUSBlog:

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.”...

The Court’s conclusion … “ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.’… Indeed, Congress has denied the President the legislative authority 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.“


In short, holding terrorists at Gitmo or other detention facilities is allowed. However, Congress has not authorized the administration to create special commissions to try the detainees for war crimes. If Congress creates the law, Bush can create the commissions. Until then, either a) no trials, b) court martials or c) criminal prosecution in criminal courts must be used.

One other important point:

The Court appears to have held that Common Article 3 of Geneva aplies 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 part of the ruling is a serious handicap to intelligence gathering, but not insurmountable. It does allow the ACLU and Amnesty Intl to play games in the media and courts with a comfortable SC ruling to rest their arguments on, but it may have come to late to have real impact on the War.

SCOTUSBlog is the place for updates.

By at 11:55 AM | Comments |