Rossputin.com Rational Thinking About Our World

In a 5-3 decision overturning the DC Court of Appeals, the Supreme Court has ruled that an Al Qaeda terrorist (Hamdan, in this case) can not be tried by a special military tribunal at Guantanamo Bay.

Justice Roberts recused himself because he was on the appellate court which made the prior decision, which the Supreme Court overruled today.

Before we get to what the ruling says, let's be clear on what it does not say: It does not say that the prisoners at Guantanamo are being detained illegally. And it does not say that there are no circumstances under which the detainees can be tried by military courts.

The ruling centered on two main points, one of which I agree with and one of which troubles me greatly.

The first ruling of the Court is that President Bush exceeded his authority by implementing a policy of special military tribunals without consulting Congress. I agree with this finding. Despite the fact that there are hardly enough negative adjectives to describe our current Congress, that does not mean I prefer to live in a monarchy.

From this issue to NSA wiretaps to almost every aspect of the "war on terror" discussion, President Bush argues that since it is a global war, his powers as Commander-in-Chief give him authority to do pretty much anything he wants to, any place he wants to. I do not find those arguments any more convincing than the Court did.

The Court's overall position on this issue was that in a situation where it was not critical to act rapidly, the President must consult with Congress on big-picture policy issues such as how we treat our prisoners and setting rules for trials.

The important implication of this ruling is that it may be permissible for the Gitmo detainees to be tried by military courts if the President works out the details with Congress. The political ramifications of this are fascinating and must be causing many sleepless nights inside the beltway. There is no doubt that the Democrats will have the better of the short-term spin. But they should not get overconfident because the ruling puts them in as difficult position as the President is in.

President Bush must decide whether to begin a dialog with Congress on how to try those Guantanamo detainees whom they want to put on trial. Politically, it could greatly benefit the Republicans by making the Democrats look even weaker on defense than Americans already believe them to be. But it also opens the door for Democrats to make repeated credible claims that Bush is a repeated law-breaker.

My guess is that Republicans in Congress will try to make it a public debate about being soft on terrorists while trying to leave specific discussion of the President out of it. It will remain to be seen whether the Democrats can bring the conversation back to the Court's basic ruling that Bush's actions were illegal.

While the Dems probably get the best of the short-term rhetoric, the Republicans will certainly use the ruling as political ammunition along the lines of "Here's another reason you must elect Republicans to the Senate: so we can replace John Paul Stevens with a conservative when he retires." I believe this tactic will be fairly effective, among and beyond the conservative base, because this ruling will probably not sit well with most Americans...particularly after the GOP spin machine makes it sound as if Court liberals are shielding terrorists behind our Constitution and international law.

Again, although our current Congress is an embarrassment (both parties), I agree with the Court's argument that the President exceeded his authority; Bush was not elected king. That said, I want the most aggressive (legal) treatment of the terrorists at Guantanamo and I hope that the President and Congress work out an acceptable way to deal with them. I hope so, but I bet they won't, at least not until after the elections.

In a much more disappointing part of the ruling, the Court ruled that part of the Geneva Conventions applies to people like Hamdan, and thus prevents trial of him by a special tribunal:

The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “‘international in scope,’” does not qualify as a “‘conflict not of an international character.’” 415 F. 3d, at 41. That reasoning is erroneous.

Common Article 3...affords some minimal protection,falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory “Power” who are involved in a conflict “in the territory of” a signatory.

Although the official commentaries accompanying Common Article 3 indicate that an important purpose of the provision was to furnish minimal protection to rebels involved in one kind of “conflict not of an international character,” i.e., a civil war, see GCIII Commentary 36–37, the commentaries also make clear “that the scope of the Article must be as wide as possible,” id., at 36.63 In fact, limiting language that would have rendered Common Article 3 applicable “especially [to] cases of civil war, colonial conflicts, or wars of religion,” was omitted from the final version of the Article, which coupled broader scope of application with a narrower range of rights than did earlier proposed iterations.

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.” 6 U. S. T., at 3320 (Art. 3, ¶1(d)). While the term “regularly constituted court” is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. 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.”

I strongly disagree with the Court's ruling here. Al Qaeda terrorists are clearly not involved in a civil war and, in my opinion, are not participating in a colonial or religious war. Simply because they are religious fanatics does not mean we are in a religious war, nor are we attempting to colonize or keep any territory. Although I would have no confidence in the Court's liberals agreeing with me, I would argue that a claim by Hamdan or someone like him that he is in a religious or colonial war is simply based on his own goals or paranoia, and that claiming to be in a religious war does not make it so. Covering terrorists, even in part, with the Geneva Convention defies the spirit of that treaty which is supposed to govern war between nations who obey at least certain sorts of law.

It is critical to note that this part of the ruling excludes "special tribunals" but could allow "ordinary military courts" to try the Guantanamo inmates. Even with the outrageous ruling that Hamdan should receive some Geneva Conventions protection, he still could be tried by a military court if the rules of such trials were either standard UCMJ (Uniform Code of Military Justice) rules or, presumably, other rules agreed to by Congress.

The Hamdan ruling is neither as bad nor as good as the right or left-wing blogosphere would have us believe. It is a short-term political setback for the President, but one I am glad to have (in terms of the finding of exceeding authority); the trend toward an imperial presidency should be squashed. But it could easily turn into a longer term setback for the Democrats as the GOP can try to make them answer uncomfortable questions. In the end, Bush will probably decide to try fewer detainees while quietly working faster to close Guantanamo for good.