The Supreme Court in an interesting 5 - 3 ruling stated that the Bush Administration had overstepped its bounds and that Military War Crimes trials violates the constituion and the Geneva Convention.
I can pretend to be a lawyer and discuss the technical aspects of this case. But it ends up sounding like a doctor trying to be a lawyer. Glen Greenwald gives a complete rundown on this decision.
Think Progress posted this -
Justice Breyer stated in today’s Hamdan opinion, “Nothing prevents the President from returning to Congress to seek the authority he believes necessary.” Reacting to Breyer, Sen. Lindsey Graham (R-SC) said on Fox, “The court is telling us that tribunals would be okay if you have the Congress’ blessing.”
President Bush seems to be quickly embracing the idea.
As I understand, a senator has already been on TV — I haven’t seen it. I haven’t heard what he said, but they briefed me and said he wants to devise law in conformity with the case that would enable us to use a military tribunal to hold these people to account. And if that’s the case, we’ll work with him.
But if Bush truly wants to devise law in conformity with the opinion, the military commissions will need to undergo significant changes. Mere congressional authorization of the military commission that the Bush administration has conceived will not be enough to pass the legal test. Today’s Supreme Court opinion makes clear that a congressionally-authorized military commission would need to comply with Geneva Conventions, particularly Common Article 3. From the opinion:
Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
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The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines “‘regularly constituted’” tribunals to include “ordinary military courts” and “definitely exclud[e] all special tribunals.
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Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.
In other words, Bush’s military commissions need more than a rubber-stamp from Congress.
More later…
Tags: Domestic Issues, Supreme court, Terrorism by ecthompson
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