Supreme Court Overturns Guantanamo Tribunals

In a 5-3 ruling today (5-4 for all practical purposes), the Supreme Court threw out the Bush Administration's Guantanamo "trials" ruling that they violated the Geneva Convention as well as the Uniform Code of Military Justice. This ruling provided the first hard evidence of Alito's tendencies to defer to executive power as I argued he would do when he was nominated. The Bush Administration really seems to view this as its top priority for Supreme Court nominees, they want people who will defer to the President's authority, as Bush believes (probably rightly) that his legacy resides with the success of his "war on terror." Marty Lederman at SCOTUSBlog has more.

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 was a nice rebuke of the Bush Administration's claims of a completely open ended interpretation of executive power in wartime, as well as their claims of the Afghanistan war resolution as a completely open ended document for executive power. This was a big relief to see a rebuke of the Administration here, the claim they make to justify these outrages that the Afghanistan war resolution lets them do nearly anything they want is disturbing on several levels. Most importantly the fact that the "war on terror" that the Administration claims to be fighting will go on forever would, under their argument here as well as in Padilla and Hamdi, give the President nearly universal wartime powers as long as the President wants them. There is no traditional war against a traditional enemy at all, if we view the "war on terror" as a traditional war we will be fighting it forever, for terrorism can never be completely eradicated. Given the arguments the Administration has made about the Afghanistan war resolution, Barbara Lee's vote against it is starting to look awfully good. I suspect many more Senators and Representatives would have voted against it if they thought the Administration would use it the way they have.