Thursday, June 29, 2006


The Supreme Court handed down a major ruling in Hamdan v. Rumsfeld, severely limiting the authority of the Bush administration to try Guantanamo detainees by military tribunal. Here's the gist of the ruling, as digested and regurgitated by the New York Times:

Justice Stevens declared flatly that "the military commission at issue lacks the power to proceed because its structure and procedure violate" both the Uniform Code of Military Justice, which governs the American military's legal system, and Common Article 3 of the Geneva Conventions.The majority opinion rejected the administration's claims that the tribunals were justified both by President Bush's inherent powers as commander in chief and by the resolution passed by Congress authorizing the use of force after the Sept. 11. There is nothing in the resolution's legislative history "even hinting" that such an expansion of the president's powers was considered, he wrote.

"Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case," he wrote. "The only reason offered in support of that determination is the danger posed by international terrorism" he said. "Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan's trial, any variance from the rules that govern courts-martial."

I don't have the time to wade through the 185-page opinion (at least not tonight), so here are some notable comments on the ruling.

From SCOTUS blog (via Kevin Drum), Marty Lederman says the ruling has profound consequences beyond the issue of tribunals at Gitmo:

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.

From Orin Kerr:

If you care most about doctrine and the impact of compliance with the Court’s decision, the decision is pretty narrow. As Jack Balkin notes, the opinion just says that Congress needs to be on board if the President wants to deviate from a court-martial-like trial for the Gitmo detainees. Given that there have been no complete trials so far, and Gitmo is widely expected to shut down soon, the practical impact of this decision at least in the short term is probably pretty modest.

If you care about the short-term impact of the case on the public debate about the GWOT, I think the case is quite important. It’s a clear loss for the President, and there’s some rhetoric in the opinions that are a pretty clear rebuke to the Administration’s approach. The Court spoke with sufficient clarity that it’s going to be harder for the Bush Administration to make strong Commander-in-Chief-power claims in the public arena.

Karl Blanke at SCOTUS blog:

Consider, by way of comparison, the statutes at the heart of the U.S.-citizen enemy combatant cases and the FISA/warrantless surveillance debate...With respect to both statutes, the government has argued that, to the extent they restrict the President’s war powers, they are unconstitutional. Needless to say, I think those arguments took a big hit today, for Hamdan clearly contemplates a role, if not a significant role, for Congress—for the people’s branch—to play in these cases. After Hamdan, arguments that Congress has no authority to legislate the war powers will be much weaker than they were yesterday, and much of the debate will return, I think properly, to what the government as a whole should do in each of the terrorism cases, and not what the President should do unilaterally.

And anticipating conservative talking points, Hilzoy at Obsidian Wings has this to say:

...if the Supreme Court rules that al Qaeda detainees have Geneva protections, then "the Supreme Court will have dictated that we now have a treaty with al Qaeda". Wrong. Al Qaeda is not a signatory to the Geneva Conventions. In signing and ratifying those Conventions, we did not enter into a treaty with them. What we did was: to enter into a treaty that governs our conduct with respect not only to soldiers of countries that have signed and ratified the Geneva Conventions, but also with regard to other people. That does not mean that we have "a treaty with those people", any more than the fact that the fact that members of the Kiwanis Club have Geneva protections means that each of the 71 state parties (pdf) to the Geneva Conventions has a treaty with the Kiwanis Club. To say that it does mean this is just dumb.

These are only a few examples of opinions and analysis regarding Hamdan, and I can assure you that we'll be hearing more of both over the next few days as people begin to comprehend the decision and it's consequences. What I find of note (or figure out on my own) I'll be sure to post here.


Anonymous said...

I'm surprised I didn't see anything on the recent easing of Knock and Announce. Seems like an atrocious idea to me, to ease K-&-A almost seems to invite a repeal of the Exclusionary Rule.

adam said...

Frist to push Gitmo bill:

Xanthippas said...

Sorry...I took a pass on knock-and-announce. I think probably some are overreacting to the ruling, but as I haven't had time to read it in detail myself, so I haven't felt qualified to really talk about it yet. But I I only have to read that decision, fight through the 150 page redistricting non-ruling, and now the 120 pages on Hamdan, and I can give you guys the expert legal analysis you've come to know and love here at TWM.