Jun 29 2006
12:45 pm

Supreme Court blocks Bush, Gitmo war trials:

The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees, saying in a strong rebuke that the trials were illegal under U.S. and international law.


"Trial by military commission raises separation-of-powers concerns of the highest order," Kennedy wrote in his opinion. "Concentration of power (in the executive branch) puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution's three-part system is designed to avoid."

And the right-wing conservatives are already spinning it as a victory for Bush (!?) and proof that the anti-American left was all wrong about "lawless fascism and rubberstamp courts" under the Bush regime.

OK, then.

SayUncle's picture

I think both sides are

I think both sides are spinning this one.

Can't we all just get a long gun?

j4's picture


'I think both sides are spinning this one.
How So?

Brian A.'s picture


If that's the case, I wonder why they litigated against this "victory" for two or three years? 

Brian A.
I'd rather be cycling.

SayUncle's picture

'How So?' Despite claims to

'How So?'

Despite claims to the contrary, it's not really a rebuke. After all, they're still holding them indefinitely. Just sayin'.

The ruling is more confusing in that tapdancing way than anything else.

Can't we all just get a long gun?

j4's picture

'Despite claims to the

'Despite claims to the contrary, it's not really a rebuke. After all, they're still holding them indefinitely. Just sayin'.'

Correct. But that doesn't mean boths sides are 'spinning' this one.


'My quick take is that it's certainly an important symbolic victory, but this administration's contempt for the law, the constitution, and the balance/separation of powers that our system rests on isn't going to be very affected by what 5 people in black robes say. They've ignored Congress and they'll ignore the Court too, leaving our mainstream media with more time to deal with the impending threat of blogofascism.'

Part of Greenwald's take:

Strictly speaking, the Supreme Court did not enforce the mandates of the Geneva Conventions against the administration, nor did it hold that the administration is required in the absence of Congressional mandate to comply with the Conventions. To the contrary, the Court here was enforcing Congress's "express condition," when authorizing the President as part of the UCMJ to create military commissions, "that the President and those under his command comply with the law of war." The Court was enforcing the statutory requirement against the administration that it comply with the law of war with regard to military commissions, not the Conventions themselves.

For that reason, I think Marty Lederman's claim that "the decision basically resolves the debate about interrogation techniques" might be overstated -- both because (a) one could argue that the Court's decision turns on enforcement of the UCMJ's military-commission-specific requirements, and not the provisions of Article 3 generally; and (b) there is a much stronger argument to make in the interrogation area that Congress implicitly amended the Convention's requirements regarding torture (by enacting the much narrower McCain legislation governing interrogation techniques) than there is in the area of military commissions (where Congress has enacted no specific, subsequent legislation to replace the UCMJ's provisions regarding military tribunals).

Presumably, then, Congress could amend the UCMJ to exempt military commissions from the law of war (either generally or as it pertains to Al Qaeda members), casting into serious doubt the ongoing validity of the Court's ruling as it pertain to these commissions. Or, Congress could simply abrogate the Geneva Conventions altogether, which would certainly free the administration from those requirements. I would speculate that the Republican-controlled Congress could, without a great deal of difficulty, enact legislation exempting Al Qaeda members from the Article 3 protections.

Having said that, I agree with Marty that the real significance of this decision is not its effects on military commissions themselves, but the broad legal principles the decision affirms. Specifically:

(7) The more I read and think about this opinion, the greater a death blow I think it deals -- at least on the legal front -- to the administration's Yoo theory of unlimited executive power. Not only Justice Kennedy in his concurrence, but also the Court's opinion itself, cited Justice Jackson's 3-prong Youngstown test to re-affirm the proposition that the President's constitutional powers must give way to duly enacted Congressional laws.

More importantly,the Opinion repeatedly places great emphasis on what it calls "the powers granted jointly to the President and Congress in time of war" (See, for instance, Op. at p. 27; emphasis added in all citations). And in a direct repudiation of the administration's claim that Congress is without power to limit or regulate the war powers granted by the Constitution to the President, the Court explained (Op. at p. 29, fn. 23)"

But to you Atrios' skeptism and Greenwald's thorough take on the ruling = Michelle Malkin.
Now who's spinning?

Rachel's picture

Just caught Tony Snow's

Just caught Tony Snow's press conference and he made it clear that Bush is going to Congress to try to get legislation passed that circumvents this ruling.

 I'm shocked, I tell you.  Shocked.

And oh yeah, I guess it makes our Glennie a wee bit wrong about folks being wrong about the "lawless facism" stuff.

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