Fighting terrorists, and finding a solution to the Gitmo problem, just got a little more difficult:

“The Supreme Court decision on Guantanamo is the most significant challenge to date of the Administration’s war on terror,” said CBS News foreign affairs analyst Pamela Falk, a law professor who has been to the Base, “because the rebuke was on international law and U.S. Law grounds and gives support to the Geneva Conventions in U.S. courts.”

The court’s ruling says nothing about whether the prison should be shut down, dealing only with plans to put detainees on trial.

“Trial by military commission raises separation-of-powers concerns of the highest order,” Kennedy wrote in his opinion.

Cohen notes that the detainees are “neither going to go free or get tried, at least in the short term.” He suspects, however, that there will be an increase in political and legal pressure to change their status or at least get them out of Guantanamo Bay.

Thomas, Scalia and Alito filed dissents:

Justice Clarence Thomas wrote a strongly worded dissent, saying the court’s decision would “sorely hamper the president’s ability to confront and defeat a new and deadly enemy.”

The court’s willingness, Thomas said, “to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous.”

Justices Antonin Scalia and Samuel Alito also filed dissents.

Michelle Malkin and SCOTUS Blog are all over this.

Marty Lederman comments:

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).

If I’m right about this, it’s enormously significant.

Mark Levine fears an erosion of executive power:

the justices no longer feel limited by the Constitution or precedent and will intervene further in the executive’s war-related policies.

Andy McCarthy sums up some of the really distasteful aspects of this ruling:

If this reasoning is used to apply Geneva, and thus strike a treaty with al Qaeda (one which obligates only the U.S. — al Qaeda can be expected to go on bombing civilians and torturing and beheading prisoners), who knows what combatant trials will look like? Notice the Article 3 language I have highlighted three paragraphs above. It will be the courts, ultimately, which decide what is “a regularly constituted court,” and what “judicial guarantees” are “indispensible” according to “civilized people.”

Anyone want to bet against me that this won’t come to mean criminal trials with virtually all the protections required to be given to U.S. citizens under the Constitution?

Drifting Through The Grift has thoughts on the defense attorney:

Even more striking was the comments by Swift after the press conference. Interviewed by a CNN reporter, he was asked his feelings about arguing a case essentially against his superior, the commander in chief, in the chain of command.

Swift pointed out that it had happened several times in history and that he was, like President Bush, bound to defend the Constitution. He concluded by emphasizing that his participation and a peaceful resolution to a difficult problem exemplified the beauty of our system.

Amen, Commander Swift.

Marvin isn’t sweating it:

1) US Supreme Court again sez we can hold these folks.

2) US Supreme Court sez that a Military Commision is not the proper forum to try them for war crimes.

The US can Court-Martial them.
or Just continue to detain them.

Agreed but I share Mark Levine’s fears about interventionist courts.

Supreme Court Opinions:
Hamdan v. Rumsfeld
Clark v. AZ


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  2. Marvin

    Thanks for the link.

    This ruling has so many different opinions, it will be hard to sort out the items where an actual majority ruled.

    I read somewhere that Justice Kennedy, apply Geneva in total to Al Queda. That his opinion only agreed that Congressional action was lacking.

    So, this is a split decision.

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