THE END OF GITMO?….President Bush told reporters a few days ago that he’d like to close the prison at Guantanamo. No one really took him seriously, but now it looks like he might get his wish after all:
The Supreme Court today delivered a stunning rebuke to the Bush administration over its plans to try Guantanamo detainees before military commissions, ruling that the commissions are unconstitutional.
….The case of Salim Ahmed Hamdan, a 36-year-old Yemeni with links to al-Qaeda, was considered a key test of the judiciary’s power during wartime and carried the potential to make a lasting impact on American law. It challenged the very legality of the military commissions established by President Bush to try terrorism suspects.
The Supreme Court has now denied Bush’s authority to detain prisoners indefinitely and denied his authority to try them solely before military commissions. Marty Lederman comments further:
More importantly, the Court held that Common Article 3 of Geneva aplies 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).
Considering how deferential the court normally is to executive power in wartime, this is an extraordinary decision. The court pretty clearly feels that Bush has way overstepped his constitutional boundaries.