Inconvenient News,
       by smintheus

Thursday, June 29, 2006

  The Supreme Court on War Crimes and all that

It would be hard to exaggerate the importance of the Supreme Court ruling today in the Hamdan case. The Court invalidated the use of military tribunals in Guantanamo, by means of which Bush & Co. had hoped to keep these prisoners beyond the reach of pesky things like normal rules of evidence and procedure.

But that is just one aspect of this sweeping decision. More fundamentally, the Court ruled that the President’s executive powers are limited even during wartime by statute and treaties; that the Authorization of the Use of Military Force (2001) did not necessarily vest the President with broad new powers neither stated nor envisioned; that unless Congress says otherwise, the President is bound by international treaties on waging war; and that in particular Common Article 3 of the Geneva Conventions, the minimum or baseline protection prohibiting cruel or demeaning treatment of prisoners, applies also to captives picked up during operations against al Qaeda.

Altogether, this ruling implies some striking things. It means, at a minimum, that the ‘harsh’ interrogation techniques that the US has been using are illegal. In fact, they ought to be classed as a war crime. The ruling may also imply, by rejecting unlimited Executive aggrandizement based upon the AUMF, that the President’s warrantless domestic spying programs would be found to be illegal. When the program was exposed, the only semi-rational justification that Bush Co. advanced was based upon AUMF.

In other words, Bush struck out today.

The best concise overview I’ve seen of today’s ruling is Marty Lederman’s post at Scotusblog.

I have not yet read the complete opinions, but from what I've seen of not only the Stevens majority, but also the Kennedy and Breyer concurrences…it is hard to overstate the principal, powerfully stated themes emanating from the Court, which are (i) that the President's conduct is subject to the limitations of statute and treaty; and (ii) that Congress's enactments are best construed to require compliance with the international laws of armed conflict.

Even more importantly for present purposes, the Court held that Common Article 3 of Geneva ap[p]lies 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 almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

I would not suppose for a moment that any member of Congress will find the nerve to investigate whether administration officials have committed war crimes by authorizing undignified, humiliating and degrading treatment of prisoners. And where Congress dares not tread, respectable journalists will not lead. You’ll find the expression ‘war crime’ only once in this otherwise thorough assessment of the Hamdan ruling in the Washington Post -- and that in regard to Hamdan, not Bush administration officials.

So, call me unrespectable.

There’s also good news regarding the dreams of a ‘Unitary Executive’ that have too long flowed like a putrid spring from the fevered noggins of Dick Cheney and the equally nefarious David Addington. Here’s Marty Lederman’s summary of a relevant bit of Stevens' ruling:

Neither the AUMF nor the DTA [Defense against Terrorism Act] can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers…and that those powers include authority to convene military commissions in appropriate circumstances…there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ [Universal Code of Military Justice] Art. 21…. Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Art. 21 or the AUMF, was enacted after the President convened Hamdan’s commission, it contains no language authorizing that tribunal or any other at Guantanamo Bay. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the Constitution and laws, including the law of war. Absent a more specific congressional authorization, this Court’s task is… to decide whether Hamdan’s military commission is so justified.

Only recently SCOTUS was willing to play along with, or at least not interfere in, the neocon fantasies of an imperial presidency – in which all kinds of inherent powers are possible, and, therefore, desirable for the president to exercise. But now the Court appears to be setting down a marker saying that it will look in future for “specific, overriding authorization” in AUMF and DTA for anything that is not “justified under the Constitution and laws”. It sounds to me like SCOTUS might well have found Bush’s warrantless domestic spying programs to be illegal, at least today, at least for now. If only Chief Justice Roberts would take a powder more often, we might be able to restore some sanity to this government in the longer term.

Crossposted at Unbossed.


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