The Hamdan decision

As you’ve likely heard, the U.S. Supreme Court today ruled 5-3 (Chief Justice Roberts not participating) that the military tribunals Bush planned to use to try Guantanamo Bay detainees violate federal law and the Geneva conventions. The decision in the case, Hamdan v. Rumsfeld, was more than 175 pages with the concurring and dissenting opinions. Not surprisingly, Justices Thomas and Scalia (joined by new Justice Alito) would have found the tribunals legal.

Lyle Denniston, who has reported on the Supreme Court for more than four decades, may have spotted the biggest news in the decision. In a post at SCOTUSblog, Denniston notes the potential significance of the Court’s determination that the Geneva conventions were violated. In light of other provisions in those conventions, Denniston says,

This almost certainly means that the CIA’s interrogation regime is unlawful, and indeed, that many techniques the Administration 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).

While the majority and minority opinions are extensive and examine myriad legal issues, I think Justice Stevens, who wrote the main opinion, summarized it best in that opinion’s penultimate paragraph:

We have assumed, as we must, that the allegations made in the Government’?s charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge – ?viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’?s power to detain him for the duration of active hostilities in order to prevent such harm. But 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

(Emphasis added).

Given the administration’s repeated claims that it is trying to spread democracy and the fact democracy must be founded upon the rule of law, our government must be held to the same standard.

The Court’?s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a “blank check.”

Justice Stephen Bryer, concurring opinion, Hamdan v. Rumsfeld

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