The Supreme Court on Thursday repudiated the Bush administration's plan to put Guantánamo detainees on trial before military commissions, ruling broadly that the commissions were unauthorized by federal statute and violated international law.Then there's this from the Washington Post:
"The executive is bound to comply with the Rule of Law that prevails in this jurisdiction," Justice John Paul Stevens, writing for the 5-to-3 majority, said at the end of a 73-page opinion that in sober tones shredded each of the administration's arguments, including the assertion that Congress had stripped the court of jurisdiction to decide the case. A principal but by no means the only flaw the court found in the commissions was that the president had established them without Congressional authorization.
The Supreme Court yesterday struck down the military commissions President Bush established to try suspected members of al-Qaeda, emphatically rejecting a signature Bush anti-terrorism measure and the broad assertion of executive power upon which the president had based it.Rule of Law. What was that about running "afoul of the Geneva Conventions"?
Brushing aside administration pleas not to second-guess the commander in chief during wartime, a five-justice majority ruled that the commissions, which were outlined by Bush in a military order on Nov. 13, 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions.
As a result, no military commission can try Salim Ahmed Hamdan, the former aide to Osama bin Laden whose case was before the justices, or anyone else, unless the president does one of two things he has resisted doing for more than four years: operate the commissions by the rules of regular military courts-martial, or ask Congress for specific permission to proceed differently.
"[I]n 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," Justice John Paul Stevens wrote in the majority opinion.
The U.S. Supreme Court on Thursday strongly limited the power of the Bush administration to conduct military tribunals for suspected terrorists imprisoned at the U.S. Navy base in Guantanamo Bay, Cuba.And
"The military commission at issue is not expressly authorized by any congressional act," said Justice John Paul Stevens, writing for the majority.Now here's the AP:
The tribunals, he said, "must be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law."
"In undertaking to try Hamdan and subject him to criminal punishment, the executive [Bush] is bound to comply with the rule of law that prevails in this jurisdiction," Stevens wrote.
The Supreme Court rebuked President Bush and his anti-terror policies Thursday, ruling that his plan to try Guantanamo Bay detainees in military tribunals violates U.S. and international law.Violates U.S. and international law.
And take a look at the first three stories. Each writer saw fit to quote the "rule of law" phrase. It's been found at the NYTimes, Washington Post and CNN. I guess it's important.
... it is hard to overstate the principal, powerfully stated themes emanating from the Court, which are (i) that the President's conduct is subject to the limitations of statute and treaty; and (ii) that Congress's enactments are best construed to require compliance with the international laws of armed conflict.And
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.Ouch. I know one half of the blogoshpere ain't gonna like that! He goes on:
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."What is Common Article 3 anyway? Here it is.
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:SCOTUSblog goes on:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
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).Did we just read "war crimes"?
Here's the opinion.