The Supreme Court ruled on Thursday that Congress did not take away the Court's authority to rule on the military commissions' validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the commissions illegal under both military justice law and the Geneva Convention. In addition, the Court concluded that the commissions were not authorized when Congress enacted the post-9/1l resolution authorizing a response to the terrorist attacks, and were not authorized by last year's Detainee Treatment Act. The vote against the commissions and on the Court's jurisdiction was 5-3, with the Chief Justice not taking part.Pajamas Media has the roundup in the Blogosphere, where the gnashing of teeth on one side and the triumphalism on the other is just beginning. Here are two of each from a genre of comments that should grow to a tidal wave...
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."
Four Justices concluded that Salim Ahmed Hamdan could not be charged with conspiracy before a military commission, but that did not have majority support, so its binding effect is uncertain.
Confederate Yankee: “Quite frankly, if SCOTUSBlog is correct in that SCOTUS is saying the Geneva Conventions apply to non-state terrorist entities, then the court is out of it’s ever-lovin’ mind. What is then to keep them from applying the Conventions to other non-state groups? Can drug cartels now claim to be protected under Geneva? How about serial killers? The message to the soldier in the field seems clear: Take no prisoners, and collect whatever intel you can gather off the bodies.”
Balloon Juice: “The Bush administration actually isn’t that hard to figure out. They love secrecy because they know that they are breaking the law. Part of that, probably a small part, comes from actual malicious intent but the much larger fraction probably just comes from the fact that they are not good enough at their job to do things right the first time.”
Captain’s Quarters: “The opinion should have some interesting tap-dancing. In any case, the Supreme Court has effectively negated the ability for us to detain terrorists. Instead, we will likely see more of them die, since the notion of having the servicemen who captured these prisoners forced to appear to testify to their “arrest” is not only ridiculous but would require us to retire combat units as a whole whenever their prisoners appear for trial. Congress needs to correct this issue immedately.”
Shakespeare’s Sister: “The Big Gavel falls, and the pendulum of politics begins its swing away from the far reaches of absurdity where it has hovered for too many years. May it never revisit those frightening places.”
(Via Orin Kerr) Here is an interesting New Yorker article by Jane Mayer on The legal mind behind the White House’s war on terror.
I'll be following developments and reading analysis at Orin Kerr and Volokh -- here the point has been made that the Decision says the President should have gotten explicit Congress approval for the tribunals.
And so, Americans begin once more a serious conversation with themselves about the fundamentals, of democracy and war and peace. Because of certain changes in human connectivity, the rest of the world is in on the discussion too, as it affects everyone. The war on terror is a hot war mainly being fought on a day to day basis in faraway places like Iraq and Afghanistan, even as word and deed of it has engulfed the daily lives of everyone on the planet. But the frontlines are actually in our hearts and minds. There shall we win or lose this war.