The Court decides on Hamdan

The Supreme Court has decided against the Bush Administration’s position on Hamdan:

The Supreme Court today delivered a sweeping rebuke to the Bush administration, ruling that the military tribunals it created to try terror suspects violate both American military law and the Geneva Convention.

In a 5-to-3 ruling, the justices also rejected an effort by Congress to strip the court of jurisdiction over habeas corpus appeals by detainees at the prison camp in Guantánamo Bay, Cuba.

And the court found that the plaintiff in the case, Salim Ahmed Hamdan, a former driver for Osama bin Laden, could not be tried on the conspiracy charge lodged against him because international military law requires that prosecutions focus on specific acts, not broad conspiracy charges.

The majority ruling was written by Justice John Paul Stevens, who was joined in parts of it by Justices David H. Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Anthony M. Kennedy wrote a concurring opinion.

Justices Antonin Scalia, Clarence Thomas, and Samuel J. Alito Jr. dissented. Chief Justice John G. Roberts Jr. did not take part in the case, since he had ruled in favor of the government as an appeals court justice last year.

The best place to go for analysis and commentary on this decision is, of course, SCOTUSBlog. I’m certain that there will be mammoth roundups from both sides of the blogosphere on this and I’ll link to the best when I’ve identified them.

I don’t have a great deal to say about the decision. The media outlets and many in the blogosphere are characterizing this decision as a rebuke for the Bush Administration and it certainly is that but it’s not only that. The onus will really fall on the Congress to clarify how detainees should be treated. I’m sure they’re looking forward to that in an election year.

The decision will also tie the hands of future presidents somewhat and that might be attributed to a general dislike of the current administration on the part of the justices who offered the majority opinion. That’s certainly the impression I get from reading Thomas’s and Scalia’s dissents.

Meanwhile, the Court’s decision seems to offer precious little guidance on the disposition of the detainees in Guantanamo. They can’t (according to the decision) be tried before military commissions and they can’t (according to the Geneva Conventions, which the decision affirmed) be tried before criminal courts. They’ll just have to wait for the Congress to make up its mind.

UPDATE: The best round-up I’ve seen so far from the Left Blogosphere is the one at The Heretik.

ANOTHER UPDATE: Andrew Cochran of Counterterrorism Blog joins those who predict that the president and Congress will overrule the Court’s decision:

The President and GOP leaders will propose a bill to override the decision and keep the terrorists in jail until they are securely transferred to host countries for permanent punishment. The Administration and its allies will release plenty of information on the terrorist acts committed by the detainees for which they were detained (see this great ABC News interview with the Gitmo warden). They will also release information about those terrorist acts committed by Gitmo prisoners after they were released. They will challenge the “judicial interference with national security” and challenge dissenting Congressmen and civil libertarians to either stand with the terrorists or the American people. The Pentagon will continue to release a small number of detainees as circumstances allow. The bill will pass easily and quickly. And if the Supremes invalidate that law, we’ll see another legislative response, and another, until they get it right. Just watch.

That was my intuition, too.  The (rejected) title for this post was “Mr. Stevens has made his decision…”.

3 comments… add one
  • The old custom of summarily executing pirates, brigands, and terrorists was a wiser method of dealing with this type of threat. The SCOTUS has no idea what it is dealing with. Senile old fools disconnected from harsh reality by the privilege of office.

  • kreiz

    I’m still trying to figure out the ramifications of the decision. But it occurs to me that Justice Kennedy has replaced Justice O’Connor as the Court’s most likely swing voter. Had Justice Roberts not recused himself, it would’ve been a 5-4 decision- again, demonstrating Kennedy’s potency. It also demonstrates that one more SCOTUS vacancy filled by GWB will create a solidly conservative court for at least a decade and perhaps longer (since the more liberal wing is much older than their conservative counterparts).

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