A Stunning Rebuke
In a 5-3 opinion released this morning, the Supreme Court held that the military tribunals instituted by the Bush administration to try enemy combatants violated both U.S. law and the Geneva Conventions. I have not yet been able to get my hands on the full opinion (it's been posted online, but I can't get it to load). Nevertheless, there is plenty to be gleaned from the summary, which is posted at SCOTUSblog.
Contrary to what some right-wing bloggers are claiming, the opinion does not hold that enemy combatants must be tried in a our criminal courts. It does, however, require that any military tribunals comply with U.S. law and with the Geneva conventions.
More importantly, the opinion appears to reject the administration's core legal theories, theories which it has used to justify, among other things, torture and warrantless surveillance. It turns out the President is indeed bound by our laws. Here's an important passage from the summary:
Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President's war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, 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 Art. 21. Cf. Ex parte Yerger, 8 Wall. 85, 105. 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, as it was in Quirin, to decide whether Hamdan's military commission is so justified.
As I read that, it's virtually dispositive of the administration's arguments with respect the NSA warrantless surveillance program. If the AUMF doesn't authorize this type of tribunal, it's hard to see how it could possibly authorize warrantless surveillance in contravention of FISA. And if the President's article II powers don't permit him to institute military tribunals that violate the law, how can they permit him to conduct domestic surveillance that violates the law?
Long story short, I think the administration's already tenuous legal arguments may have just been dealt a mortal blow.
More on this tonight after I've had a chance to read to the full opinion . . .
Contrary to what some right-wing bloggers are claiming, the opinion does not hold that enemy combatants must be tried in a our criminal courts. It does, however, require that any military tribunals comply with U.S. law and with the Geneva conventions.
More importantly, the opinion appears to reject the administration's core legal theories, theories which it has used to justify, among other things, torture and warrantless surveillance. It turns out the President is indeed bound by our laws. Here's an important passage from the summary:
Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President's war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, 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 Art. 21. Cf. Ex parte Yerger, 8 Wall. 85, 105. 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, as it was in Quirin, to decide whether Hamdan's military commission is so justified.
As I read that, it's virtually dispositive of the administration's arguments with respect the NSA warrantless surveillance program. If the AUMF doesn't authorize this type of tribunal, it's hard to see how it could possibly authorize warrantless surveillance in contravention of FISA. And if the President's article II powers don't permit him to institute military tribunals that violate the law, how can they permit him to conduct domestic surveillance that violates the law?
Long story short, I think the administration's already tenuous legal arguments may have just been dealt a mortal blow.
More on this tonight after I've had a chance to read to the full opinion . . .
posted by A.L. at 10:41 AM
2 Comments:
I've been following this case since Roberts decided it in 2005. I haven't had time to read the case yet, either, but I'm extremely relieved.
Doesn't anyone remember Nixon? It was determined back then that the president had to abide by the laws of the United States.
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