In its 5-3
decision (PDF), the US Supreme Court ruled yesterday in Hamdan
v. Rumsfeld that the special military tribunals created by the Bush
administration to try suspected terrorists are illegal. Specifically, the court
found
that the tribunals "were not authorized by any act of Congress and that
their structure and procedures violate the Uniform
Code of Military Justice (UCMJ) and the four Geneva
Conventions signed in 1949.

The ruling - "a
definitional moment in the ever-shifting balance of power among the
branches of government" - will have other complex and far-reaching
implications. Bottom line, it is a great victory the American people, for
checks and balances and our Constitution.

The Supreme Court struck down Bush’s interpretation of the 9/11 force
authorization. The Supreme Court ruling in Hamdi
v. Rumsfeld, issued two years ago Wednesday, famously noted that "a
state of war is not a blank check for the President." The Hamdan
ruling backs up that statement. The Bush administration argued that Congress
had authorized the special Guantanamo tribunals when it approved the Authorization
for Use of Military Force (AUMF) in the days after September 11, but the
Court disagreed. Justice John Paul Stevens wrote, “there is nothing in the text
or legislative history of the AUMF even
hinting (PDF) that Congress intended to expand or alter" the laws
already governing the treatment of military detainees.

The Court upheld the notion that the Geneva Conventions apply to all
military detainees. In a Jan.
25, 2002, memo to the president, then-White House Counsel Alberto Gonzales
infamously argued that the "new paradigm" post-9/11 rendered parts of
the Conventions "quaint" and "obsolete." The Court also
rebuked this position yesterday, ruling that Common
Article 3 of the Geneva Conventions applies to all detainees captured in
military conflicts, including members of al Qaeda and other terrorist networks,
and not merely soldiers fighting for states which are signatories to the
Conventions, as the administration argued. Article 3 requires that detainees be
tried by a "regularly constituted court affording
all the judicial guarantees which are recognized as indispensable by
civilized peoples."

The Court ruling effectively rebuked the idea of unchecked executive
authority. President Bush and Vice President Cheney have aggressively pursued
the expansion of executive authority since taking office. (The decision to
create special military commissions for terror suspects actually "represented
one of the first steps" by Cheney to increase executive authority
after 9/11.) The legal rationale for this forceful drive was undercut
yesterday. Justice Kennedy noted in his concurring
opinion (PDF) that judicial insistence upon consultation between Congress
and the executive "does not weaken our Nation’s ability to deal with
danger. To the contrary, that insistence strengthens the Nation’s ability to
determine - through democratic means - how best to do so. The
Constitution places its faith in those democratic means. Our Court today simply
does the same.”

the Supreme Court decision dropped on the bushit
administration like a proverbial bomb; shattering its carefully fabricated
post-911 charade, designed to sanction its lawless activities ….. 

‘But the real blockbuster in the
Hamdan decision is the court's holding that Common Article 3 of the Geneva
Convention applies to the conflict with Al Qaeda - a holding that makes
high-ranking Bush administration officials potentially subject to prosecution
under the federal War Crimes Act.

The provisions of the Geneva
Convention were intended to protect noncombatants - including prisoners - in
times of armed conflict. But as the administration has repeatedly noted, most
of these protections apply only to conflicts between states. Because Al Qaeda
is not a state, the administration argued that the Geneva Convention didn't
apply to the war on terror. These assertions gave the administration's
arguments about the legal framework for fighting terrorism a
through-the-looking-glass quality. On the one hand, the administration argued
that the struggle against terrorism was a war, subject only to the law of war,
not U.S. criminal or constitutional law. On the other hand, the administration
said the Geneva Convention didn't apply to the war with Al Qaeda, which put the
war on terror in an anything-goes legal limbo. 

This novel theory served as the
administration's legal cover for a wide range of questionable tactics, ranging
from the Guantanamo military tribunals to administration efforts to hold even
U.S. citizens indefinitely without counsel, charge or trial.’

Rosa
Brooks: Did Bush Commit War Crimes?