Supreme Court delivers stinging rebuke to Bush over military trials for Gitmo detainees

The Supreme Court delivered what the Washington Post calls a stunning rebuke to the Bush administration's proposed policy for Guantanamo inmates. The administration had hoped to try the prisoners at Guantanamo Naval Base under military tribunals, but the Supreme Court scuttled their plan with a 5-3 ruling that these tribunals are neither legal under US law, nor permissible under the Geneva Convention.

Marty Lederman of SCOTUSblog sees huge implications for this decision:

More importantly, 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. 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).

Steve Soto of the Leftcoaster says that the decision proves that George W. Bush isn't an emperor after all.

Scott Lemieux says that the Court's ruling slaps down the lawless administration.

ThinkProgress has the latest updates and analysis of the Hamdan decision.

Comments

[The Xsociate]

It will definitely be interesting to see how Bush will respond to this ruling.

[David Seibert]

my comment is my opion, it seems to me with this supreme court has damaged the military effort. What I am saying is simply we are a civilized nation, but our men are put in harms way and when captured they are tortured to the extent that only DNA can identify the bodies. I for one really don't care if we humiliate the poor captured enemy. I feel that if there humiliation will save one of our men in harms way we should recieve all the information that we can. By any means available. I think that trying some of our men for killing "inocent" civilians (who are really insurgents) sounds like when we were fighting against Viet Nam and our hands were tied so to speak and we died at the hands of the poor civilians. In war you kill people and destroy things...its not pretty

[Steve LaBonne]

Not even the military (which seems to be doing a pretty thorough investigation, which I applaud) has tried to claim that the women and children butchered in Haditha were "insurgents". David, you are a sick, sick puppy. (Also barely literate. Both of these characteristics are typical of the Bushite protofascist Right.)

[Uncle Kvetch]

This is excellent news--a direct slap in the face to Gonzalez, Addington, Yoo and the rest of them.

And the howls of rage from the "kill 'em all" crowd are going to be highly entertaining, as Mr. Seibert's thoughtful contribution above suggests.

[Ian Welsh]

Actually Davey, it's much worse than that for apologists for torture like yourself. The Supreme Court, I suspect, has oppened up the possibility of war crimes trials for the torturers you love so much, and for those who ordered the torture.

Personally I don't have any time for apologists of torture, and I'm looking forward to seeing people get hard time for it.

[Eric Blair]

Actually, those 5 Justices may have just signed the death warrants of all those detainees.

If the GC explicitly applies to these guys, then the holding military gets to determine whether they are 'legal' or 'illegal' combatants. By a military commission or tribunal. Since all of these guys are essentially 'illegal' combatants as defined by the GC, they can all be summarily executed.

And the decision also states that they can all be held for the 'duration of hostilities' which pretty much means longer than anybody reading this blog will live.

And the Justices explicitly state that the President can go back to Congress to get explicit authority to try those detainees by military tribunal. (Which I suspect is what is going to happen.)

Also likely is that many will simply get remanded back to where they came from, which will probably mean that they die anyway.

Becareful what you wish for, you just might get it.

[Steve LaBonne]

Would you care to quote the section of the Geneva Conventions that uses the phrase "illegal combatants"? That term of art was made up out of whole cloth by BushCo. Also, it's well known that many of the slobs in Gitmo were simply sold to the US by unscrupulous bounty hunters. If the Defense Department had any actual evidence against most of them, BushCo wouldn't have needed to resist so vigorously the demands to hold tribunals.

But don't let reality get in the way of your bloodthirsty fantasies. Reality, after all, has a well-known liberal bias.

[Steve LaBonne]

P.S. You disgrace the memory of the real Eric Blair by appropriating his name.

[cfrost]

Justice Thomas claims the majority opinion: "openly flouts our well-established duty to respect the Executive's judgment in matters of military operations and foreign affairs."
Right! Commissar Justice Sir! I'll shut up and obey now, Sir!

Just heard our turgid freind Rush Limbaugh wax hysterical over the decision. This will galvanize the goose-steppers for the next election for sure.

[Count Zero]

"Just heard our turgid freind Rush Limbaugh wax hysterical over the decision."

That was just the oxy-contin talking.

[1984 Was Not a Shopping List]

Thank you Steve. The real Eric Blair would not countenance detention without trial, or torture. I think that, um, that may have been one of the points of his book, 1984.

Dave Seibert, the reason I can't agree with you is that Osama bin Laden and the 9/11 hijackers _would_ agree with you. They would have used your exact words.

[JPBurns]

Oh no, Lindsay's drunk from the Vegas casino showed up...and his name is apparently David Seibert.

[Xanthippas]

I think this is pretty much the nail in the coffin of the detention policy not only at Gitmo, but around the world. Of course we've seen that the Bush administration has been moving steadily towards shutting Gitmo down, but I think that's largely because they have thought that the secret detention program would provide them with a means by which to detain and do God-knows-what to the guys they're really interested in. I think now they will find themselves scrambling to develop an alternate policy, and forced to turn to Congress to some extent to implement it. But of course it'll be awhile before we see the full consequences of the decision.

[rob helpy-chalk]

The fact that we even have to celebrate a decision like this unnerves me. I mean, basically, the headline today reads "Five out of Nine Supreme Court Justices Approve of the Rule of Law and Trial by Jury." The headline is about as heartening as the Onion Headline "World's Nuclear Arsenal Pretty Much Accounted For."

[cfrost]

rob helpy-chalk -
Got that right. The fact that Scalia, Thomas, & Alito are judging anything more important than pies at the county fair scares the crap out of me.

[1984 Was Not a Shopping List]

Oh, for crying out loud, the headcount--do you know (and I guess there should be no prize for guessing this) that when thinking of this ruling, I thought, "gosh--do you suppose Scalia and Thomas could have been two of the dissenting voices?" Sure enough, the news came on, and those faces came up. It's the sort of thing that turned me against some rightist politicians: the predictability of the person that knows who he or she is spiting, and cares nothing for precedent or duty.

[firefalluk]

Given that Bush's response to this amounts to a hearty fuck-off, it's hard to see it making much difference, amazingly (Shades of Andrew Jackson I suppose).

Who's in a position to take this further, after all? The Republican congress?

[mudkitty]

Bush will add a signing statement to the ruling...

[The Phantom]

On the bright side, none of these terrorists is entitled to a trial anymore than the Nazi soldiers picked up in WW2 battlefields were. They can enjoy their Cuban vacation until the War On Terror has been won.

They had a means of redress, and the Supreme Court took it away from them.