The Supreme Court ruled 5-3 against the administration in the Hamdan case. Terrorists can not be tried by special military commissions.

From SCOTUSBlog:

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.”...

The Court’s conclusion … “ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.’… Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.“

One other important point:

The Court appears to have held that Common Article 3 of Geneva aplies 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 “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.

This part of the ruling is a serious handicap to intelligence gathering, but not insurmountable. It does allow the ACLU and Amnesty Intl to play games in the media and courts with a comfortable SC ruling to rest their arguments on, but it may have come to late to have real impact on the War.

SCOTUSBlog is the place for updates.

Posted by: cbjohnson at 11:55 AM | Comments (17) | Add Comment
Post contains 377 words, total size 3 kb.

1 This war (n.b. small"w") will be decided not by firepower by "hearts and minds".I hope that you are not correct with your view that this ruling "may have come to late to have real impact on this War"

Posted by: John RYAN at June 29, 2006 12:15 PM (TcoRJ)

2 And I hope the administration is not correct with its view that the "war" will be "long."

Posted by: Michael Hampton at June 29, 2006 12:28 PM (FVbj6)

3 I disagree totally with your analysis. The entire decision says basically one thing, that if the US giovernment wants to "try" these individuals they have to do it in a civil court. They is no hinderance whatsoever upon holding them as prisoners of war until the end of time.

BTW Marty Lederman is not my first choice for an unbiased clear thinking view of this decision.....not by a long shot.

Posted by: traderrob at June 29, 2006 12:29 PM (3al54)

4 Is sending them back to the toilet the were captured in an option? I hear most fear that more than an American prison.

Posted by: Danny Carlton at June 29, 2006 01:38 PM (s+57l)

5 Danny, I'm sure you are joking. Right? The few men we have heard speak after their release are so grateful to be back in Afghanistan or Pakistan or Yemen or Morocco, etc.

This ruling just goes by the Constitution. It is the Congress, and not the president, who establishes all courts beneath the Sup. Court. Military tribunals that use established rules are already set up. The new courts need not be civilian in nature, they just need to be authorized by Congress. This is a slap in the face to Bush's assertion of executive power, and it was so unnecessary for him to assert it. If he has simply ASKED Congress to set up tribunals, they would have.

Also, the torture ruling probably will not affect our security, since most experts agree that torture is an ineffective way to get info. The Susskind book lays out how we tortured a mentally ill man into giving bad intel, that helped support the invasion of Iraq. Thank God the Supreme Court injected some dignity, sanity, and humanity into the system.

It is a great day to be an American. I have been telling my foreign friends for months don't lose all faith in America because of Bush, the Supreme Court will not fail to stop some of this.

Posted by: jd at June 29, 2006 02:15 PM (aqTJB)

6 You're dead wrong jd. The court did not rely on "constitutional" considerations in it's ruling but rather "proceedural"

SB basically said take it to the legislature and have them "fix it".

Posted by: traderrob at June 29, 2006 02:57 PM (3al54)

7 Rob--are you suggesting that something cannot at once be procedural as well as constitutional? In fact, the constitutional rulings of the SC have OFTEN been procedural in form, constitutional in source. Marbury v. Madison is one, the case that established Judicial Review.

Posted by: jd at June 29, 2006 03:21 PM (aqTJB)

8 Rob--you may be confusing section III of Stevens ruling with earlier parts. Although it concludes in a seemingly procedural fashion, the heart of this is a constitutional ruling that the DTA did not limit Hamdan's ability to challenge the nature of the military commissions. Why? Because these commissions were not set up in a constitutional way. What you call SCOTUS telling Bush to "fix it" in Congress is in fact a complex argument grounded in the constitutional principle of separation of powers. The president cannot, outside emergency martial law situations, simply establish military courts that operate under new rules of evidence and proceedings. He can try POWs in existing military courts, under the UCMJ established by Congress. But he cannot make up new rules on the fly. That sounds procedural, but it is at the core, constitutional.

Posted by: jd at June 29, 2006 03:39 PM (aqTJB)

9 The long quote in section IV from ex parte Milligan makes this point clearly:
“The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers.Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of thePresident. . . . Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature.”

That's not procedural, that's SOP.

Posted by: jd at June 29, 2006 03:42 PM (aqTJB)

10 Not comparable. The court stated that their was nothing inherently wrong with military tribunals only that it was Congress who must devise them. Which btw, will happen, it's a political neccessity.

Posted by: traderrob at June 29, 2006 04:45 PM (3al54)

11 I am sure it will be a long war. When we clean up one hellhole, they crawl out of a new one. Iraq is being cleaned up, so they start new fighting in Afghanistan, Somalia, the horn of Africa.

It will take time to convince Muslims that Islamism is a dead cause, just as it took decades to convince the world Communism was wrong.

Remember, 15% of British Muslims support the Jihadis and suicide attacks.

Posted by: Chris at June 29, 2006 11:27 PM (5ve1C)

12 Seriously, you wouldn't believe the size of the shit I just took. It was the size of a dog's head.

Posted by: brad at June 29, 2006 11:32 PM (qWiph)

13 This ruling was about separation of powers- And SCOTUS's GROSS violation of separation of powers.
Specifically- Where in the Constitution is SCOTUS granted the power to decide "military necessity?" The President is Commander in Chief.
Where is SCOTUS empowered to violate the laws that it is subject to? Congress CLEARLY stated that SCOTUS had no jurisdiction to rule on Habeas Corpus petitions from those interred at GITMO, including those cases that were pending at the time DTA was passed. Congress has the constitutional authority to pass laws which restrict the jurisdiction of the Supreme Court. Congress knew this case to be included in the scope of DTA as it was argued about during floor debates.
The only example of separation of powers we have here is Judiciary trampling the Legislative and Executive branches constitutional authority.

Posted by: Matt at June 30, 2006 12:14 AM (6u0Td)

14 Doesn't bother me at all. In fact - think positively!

Take a handful of the most hardcore jihadis down there - bring them stateside and give them their "day in court". Lets bring in the cameras and televise it too! Should be great theater! With great ratings!!! Let the American people see the face of the enemy and hear them speak!!!

And lets do it just prior to the elections! Yeah baby!

Think of the potential fun and commentary! All their defenders can proundly show themselves on TV to the masses!
Imagine - the witnesses and documentation presented against will be presented by US military personnel! And their ACLU lawyers and friends can attack them and their credibility on national TV - to a hugh audience - prior to the elections!!!

Oh I'm lovin' this! guees you all can figure where I'm going with it. Karl Rove - if you read this - hondo's looking for a job!

Posted by: hondo at June 30, 2006 06:41 AM (MVgHp)

15 I'm not a lawyer - and don't pretend to now jack about the law like so many here on both sides of the issue.

But I know politics - and this (gitmo) became a political issue and I say so be it - play it as such.

A few show trials could prove very interesting.

Posted by: hondo at June 30, 2006 07:00 AM (MVgHp)

16 Well, I know more than a bit about constitutional law, and hondo, you ain't getting the show trials you want. (altho I agree with you that it would help your side politically if it happened--you know your gut-level politics). What is going to happen, as Rob anticipates, is that Congress is going to write rules for a military commission, with more evidentiary protections for the accused, and a fairer appeal process. (the other option would be to simply go by UCMJ).

But Rob--I still don't understand why you believe this isn't a constitutional ruling. This is firmly grounded in Article I and II of the Constitution. The dissent accuses the majority of misreading the constitution. You aren't disagreeing just with me--you are disagreeing with Scalia! With Thomas!

You might as well say that the U.S. Steel Case was "procedural and not constitutional". Face facts--Bush's legal arguments about the breadth and nature of executive power just got dealt a big ol' smackdown by 5 justices of the SCOTUS. Putting your fingers in your ear and repeating "procedural not constitutional" doesn't change that fact.

Posted by: jd at June 30, 2006 07:40 AM (DQYHA)

17 Nah! I'm with the libs, left, ACLU and all the others on this. I want an upfront, buy the book, wide-open civil courtroom trial! TELEVISED! Can't do all 450 at once - let's just schedule a few special cases to start!

I don't have a problem with this - do you?

You can be on the dream team - I'll even give you all the time alone you want unsupervised with your clients.

AT THIS POINT, NONE OF ALL THIS IS ABOUT THE LAW - IT IS ALL ABOUT POLITICS!

Posted by: hondo at June 30, 2006 09:39 AM (MVgHp)

Hide Comments | Add Comment