A Glimmer of Hope
Updated on June 29, 2006 at 1:31 pm (I) and 4:53 pm (II).
The talk radio crowd, which blows its collective gasket each time a judge uses the word “international” or suggests there are limits to the President’s power despite our perpetual war against terror, will not be pleased with todays Supreme Court decision in Hamdan v. Rumsfeld (note: pdf). Anyone concerned about civil liberties and abuse of executive power should be pleasantly surprised:
Petitioner Salim Ahmed Hamdan, a Yemeni national, is in custody at an American prison in Guantanamo Bay, Cuba. In November 2001, during hostilities between the United States and the Taliban (which then governed Afghanistan), Hamdan was captured by militia forces and turned over to the U. S. military. In June 2002, he was transported to Guantanamo Bay. Over a year later, the President deemed him eligible for trial by military commission for then-unspecified crimes. After another year had passed, Hamdan was charged with one count of conspiracy “to commit . . . offenses triable by military commission.” App. to Pet. for Cert. 65a.
Hamdan filed petitions for writs of habeas corpus and mandamus to challenge the Executive Branch’s intended means of prosecuting this charge. He concedes that a court-martial constituted in accordance with the Uniform Code of Military Justice (UCMJ), 10 U. S. C. 801 et seq. (2000 ed. and Supp. III), would have authority to try him. His objection is that the military commission the President has convened lacks such authority, for two principal reasons: First, neither congressional Act nor the common law of war supports trial by this commission for the crime of conspiracy–an offense that, Hamdan says, is not a violation of the law of war. Second, Hamdan contends, the procedures that the President has adopted to try him violate the most basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.
The District Court granted Hamdan’s request for a writ of habeas corpus. 344 F. Supp. 2d 152 (DC 2004). The Court of Appeals for the District of Columbia Circuit reversed. 415 F. 3d 33 (2005). Recognizing, as we did over a half-century ago, that trial by military commission is an extraordinary measure raising important questions about the balance of powers in our constitutional structure, Ex parte Quirin, 317 U. S. 1, 19 (1942), we granted certiorari. 546 U. S. ___ (2005).
For the reasons that follow, we conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions. Four of us also conclude, see Part V, infra, that the offense with which Hamdan has been charged is not an “offens[e] that by . . . the law of war may be tried by military commissions.” 10 U. S. C. 821.
It’s noteworthy that the case was decided on a 5-3 basis, with the usual suspects, Justices Scalia, Thomas and Alito, dissenting. In his dissent, Justice Scalia called the majority’s conclusion that the Detainee Treatment Act of 2005, to which the President appended one of his notorious signing statements, did not deprive the Court of jurisdiction to decide the case “patently erroneous.” Chief Justice Roberts did not participate in the decision because he ruled in favor of the government when the case was argued before the D.C. Court of Appeals. The decision in that case was strongly criticized by civil liberties advocates.
God help us if President Bush has the opportunity to appoint another Supreme Court justice.
UPDATE I: NPR has a good summary of the decision here.
UPDATE II: Like we didn’t see this coming:
Some Republican lawmakers pledged immediately to begin working on a legislative solution to the problem posed by the court’s decision.
Senate Majority Leader Bill Frist announced he would introduce a bill after the July Fourth recess that “authorizes military commissions and appropriate due process procedures for trials of terrorist combatants.” In his statement, he added that he believed civilian courts were inappropriate for the terror suspects’ cases.
Sens. Lindsay Graham, R-S.C., and Jon Kyl, R-Ariz., said separately they planned on introducing similar legislation.
It seems to me that Congressional Republicans could save a lot of time and trouble by simply passing the President Bush May Do Whatever the Hell He’d Like Act of 2006.
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