And justice for all? About Bl**dy time!
… Washington — The Supreme Court dealt U.S. President George W. Bush a stunning defeat Thursday, ruling the controversial military trials of terrorists suspects detained at Guantanamo prison camp were illegal under both U.S. and international law, including the Geneva Convention.
…
The vote was 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 that he had earlier ruled on the Hamdan case. … [1]
A bit of a reality check delivery.
… Both rulings reinforced the court’s warning in a related case two years ago. The president, it said, does not have a “blank check” for pursuing war against the nation’s enemies. Even in matters of national security, he must defer to checks and balances posed by other branches of government and the U.S. Constitution. … [2]
and …
For five years, President Bush waged war as he saw fit. If intelligence officers needed to eavesdrop on overseas telephone calls without warrants, he authorized it. If the military wanted to hold terrorism suspects without trial, he let it.
Now the Supreme Court has struck at the core of his presidency and dismissed the notion that the president alone can determine how to defend the country. In rejecting Bush’s military tribunals for terrorism suspects, the high court ruled that even a wartime commander in chief must govern within constitutional confines significantly tighter than this president has believed appropriate.. … [3]
So will we see War Crimes trials against the Bush Administration, now that it has been found that they do need to recognise Common Article 3 of the Geneva Conventions? Or are ‘War Crimes’ only prosecuted when it is *the terrorists*?
… Even more importantly for present purposes, the Court held that Common Article 3 of Geneva applies 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. See my further discussion here.
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). . … [5]
[1.] U.S. Supreme Court blocks Guantanamo trials [Globe and Mail]
[2.] Blank check returned [Chron.com]
[3.] A Governing Philosophy Rebuffed [Washington Post]
[4.] HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, et al. [FindLaw]
[5.] Hamdan Summary — And HUGE News [SCOTUSblog/Marty Lederman]
