Supremes overrule President on Gitmo

Posted by: ST on June 29, 2006 at 10:38 am


WASHINGTON – The Supreme Court ruled Thursday that President Bush overstepped his authority in creating military war crimes trials for Guantanamo Bay detainees, a rebuke to the administration and its aggressive anti-terror policies.

Justice John Paul Stevens wrote the opinion, which said the proposed trials were illegal under U.S. law and the Geneva Convention.

The case, one of the most significant involving presidential war powers cases since World War II, was brought by Guantanamo prisoner Salim Ahmed Hamdan, who was a driver for Osama bin Laden in Afghanistan.

The vote was split 5-3, with moderate Justice Anthony M. Kennedy joining the court’s liberal members in ruling against the Bush administration. Chief Justice John Roberts, named to the court last September by Bush, was sidelined in the case because as an appeals court judge he had backed the government over Hamdan.

Thursday’s ruling overturned that decision.

Read more via SCOTUSblog and stay tuned to Allah for updates.

Andy McCarthy got it right, unfortunately.

Al Qaeda terrorists now have ‘protections’ via the Geneva Conventions thanks to the US Supreme Court.

PM Update I: Here’s video of President Bush’s response to the ruling.

PM Update II: Here are the justices’ opinions (Hat tip: Bak)

PM Update III: Mark Levin’s comments on today’s ruling:

Congress and the Court are systematically stripping the presidency of war-making powers. Congress demands that the president get court approval beforeing intercepting enemy communications (we call that intelligence gathering) and the Court demands that the president get statutory support from Congress before he can use military tribunals to try terrorists.

And yet, neither Congress nor the Supreme Court have any explicit constitutional authority to make these decisions. Congress can cut-off funding for the war or any aspect of it, which it has not; and the judiciary’s only role in these matters is to defer to the president, who has explicit and broad authority under the Constitution as the commander-in-chief.

Today, the Court has taken a giant new step in its usurpation of explicit presidential authority. The battle against terrorism is being fought as much in our courtrooms as on the field in Iraq and other places — where the likes of the ACLU and activist judges will set policy in contravention of the Constitution.

Congress and the courts are conferring rights and privileges on terrorists. They are conferring constitutonal protections on the enemy. They are granting the enemy jurisdiction in our civiliam courts. They are extending the Geneva Conventions to an enemy that is specifically excluded from those protections.

Read the whole thing.

See also: Malkin, Patterico, Orin Kerr, Riehl World View, Stop The ACLU


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  • Assorted Babble by Suzie trackbacked with U.S. Supreme Court Blocks Gitmo War Crimes Trials
  • 21 Responses to “Supremes overrule President on Gitmo”


    1. Kevin says:

      I heard a Senator (Lindsey Graham?) say that the decision made clear that the president would still have authority to use tribunals only if Congress ok’d it. He then said that he was going to introduce a bill giving Bush this right.

      Good news if true.

    2. Gregdn says:

      I don’t have a problem with Congress OKing Military Tribunals for these guys, but it’s a disgrace that five years after their apprehension they have not been given a trial.

    3. Baklava says:

      Interesting text on page 43 (opinion of Stevens):

      31 JUSTICE THOMAS would treat Osama bin Laden’s 1996 declaration of jihad against Americans as the inception of the war. See post, at 7–10 (dissenting opinion). But even the Government does not go so far;although the United States had for some time prior to the attacks of September 11, 2001, been aggressively pursuing al Qaeda, neither inthe charging document nor in submissions before this Court has the Government asserted that the President’s war powers were activated prior to September 11, 2001. Cf. Brief for Respondents 25 (describingthe events of September 11, 2001, as “an act of war” that “triggered aright to deploy military forces abroad to defend the United States bycombating al Qaeda”). JUSTICE THOMAS’ further argument that the AUMF is “backward looking” and therefore authorizes trial by military commission of crimes that occurred prior to the inception of war isinsupportable. See post, at 8, n. 3. If nothing else, Article 21 of the UCMJ requires that the President comply with the law of war in his use of military commissions. As explained in the text, the law of war permits trial only of offenses “committed within the period of the war.”

      Stevens would like to tie our hands behind our backs?

    4. Baklava says:

      That was from here

    5. Baklava says:

      Stevens argues against Thomas NUMEROUS times in his opinion.

    6. Baklava says:

      I’m not a lawyer but on page 72 the following paragraph means very little concerning Hamdan’s ability to LEAVE G’tmo:

      We have assumed, as we must, that the allegations made in the Government’s charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge—viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would causegreat harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdanand subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in thisjurisdiction.

      That was on page 72 the conclusion of Stevens opinion.

    7. Baklava says:

      Scalia, Thomas and ALito’s FIRST paragraph of their dissenting opinion says:

      On December 30, 2005, Congress enacted the DetaineeTreatment Act (DTA). It unambiguously provides that, asof that date, “no court, justice, or judge” shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the Court today concludes that, on what it calls thestatute’s most natural reading, every “court, justice, or judge” before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedlyretained should, in an exercise of sound equitable discretion, not be exercised.

      However Stevens is above the RULE of LAW that he asserts the Executive MUST follow numerous times in his opinion?

    8. – From a cursory reading, and noting the almost obsessive hecktoring of the Press numbskulls at todays WH gaggle to interject the words “Bush over-reach” as often as possible, I think the mindless rabid BDS that infests the Left-wing media is so out of control it wouldn’t matter if the SCOTUS had come back with “Hang them all”. As it is, it’s not clear that anything has been “cleared up”, and in fact it seems that if anything the “proper rules of war” have been confused even more.

      – Maybe Usama is right after all. With the help of the “disloyal opposition” we may not be able to defend ourselves effectively after all. Of course to buy that we’d have to ignore the thousands of al Qaeda that are now enjoying their 72 year old virgins in the lap of Allah, and two countries in the ME, actually three if you count Libya, that are no longer Sectarian Dictatorships.

      – Bang **==

    9. Lorica says:

      1) the Geneva Conventions were meant to protect soldiers not terrorists. So they don’t really apply to these guys.

      2) I have no problem with this, except the above mentioned stupidity. All I say is that we should return these guys to the country we captured them from and turn them over to the new authorities there, i.e. Iraq or Afghanistan. Who would want to leave the tropical paradise of Club Gitmo for prisons worse than what McCain went thru in captivity in Vietnam.

      3) Our guys are going to stop taking these guys alive. What’s the point of taking prisoners?? Most of these dolts carry information that will lead us to their superiors, so who needs them alive.

      4) Justice Stevens is an absolute idiot as the first time AQ attacked our sovereign ground was in 1993 not 2001. If the president at that time would of had a backbone, instead of what the problem he did have, he should had Congress to declare a war at that time. Of course Congress at that time was nothing more than abunch of yes people.

      5) Stevens constant trampling on the Constitution is getting abit annoying also. Him placing higher significance on what Europe is doing and saying, goes directly against the supremacy clause of the Constitution.

      Libs just continue to show their support of our enemies and their short sightedness. If Libs had their way, these jihadists are going to take over and convert this country to Islam. As Justices Stevens, Ginsberg, Kennedy, Souter and Breyer watch these jihadist kill our troops I hope they remember the encouragement they have given to our enemies. Thanks guys – Lorica

    10. Malcor says:

      OK, so they can’t be held indefinately, but must meet the rule of law. In this case, that means a military tribunal.


      Easiest way to handle it is to accuse them of being enemy combatants and the penalty to be death. Quick trial, quick resolution, and no other option for the jihadists. At least we won’t have to worry about wasted money and time at Gitmo.

    11. Baklava says:

      Sorry for the continued posting ST.

      Scalia, Thomas and Alito continue:

      As of that date, then, no court had jurisdiction to “hear or consider” the merits of petitioner’shabeas application. This repeal of jurisdiction is simply not ambiguous as between pending and future cases. It prohibits any exercise of jurisdiction, and it became effective as to all cases last December 30. It is also perfectly clear that the phrase “no court, justice, or judge” includesthis Court and its Members,

      I guess September 11th, 2001 is a date that Stevens argues must be applicable (in favor of the detainee) and December 30 2005 doesn’t mean anything (against the DTA). Dates Shmates.

      This text by Thomas on page 155 is hilarious:

      After seeing the plurality overturn longstanding precedents in order to seize jurisdiction over this case, ante, at 2–4 (SCALIA, J., dissenting), and after seeing them disregard the clear prudential counsel that they abstain in these circumstances from using equitable powers, ante, at 19–24, it is no surprise to see them go on to overrule one after another of the President’s judgments pertaining tothe conduct of an ongoing war. Those Justices who todaydisregard the commander-in-chief’s wartime decisions, only 10 days ago deferred to the judgment of the Corps ofEngineers with regard to a matter much more within the competence of lawyers, upholding that agency’s wildlyimplausible conclusion that a storm drain is a tributary of the waters of the United States. See Rapanos v. United States, 547 U. S. ___(2006). It goes without saying thatthere is much more at stake here than storm drains. The plurality’s willingness to second-guess the determinationof the political branches that these conspirators must bebrought to justice is both unprecedented and dangerous.

    12. – That the court would impose a ruling that in effect sets the SCOTUS as the arbitrator and decider of “treaties” is troublesome, but fixable. Something to pursue in the future on a legal basis, and something that both the president and Congress nad best be very very aware of.

      – But overall, by extending Geneva protections to non-soveriegn intities like al Qaeda, at least two practical positive results manifest.

      – The use of the conventions now means that all Jihadist insurgents can be held for the duration of the war which could be going on for who knows how long.

      – Bush can immediately ask Congress to pass a law setting aside the SCOTUS position, and giving him the Miltary Tribunal powers he wants. Moreover it would pass quickly, since few Senators/Representatives would want a no vote for such a thing on their record. So Bush ends up getting exactly what he and most Americans want.

      – So the bad news is the Court continues to practice “law making”, but the good news is they have painted themselves into a very specific corner that’s easily fixed.

      – Bang **==

    13. Baklava says:

      Mark Levin writes:

      First point – since when does a party that has NOT signed a treaty, and does not comply with a treaty, become a part of such a treaty? The Geneva Convention relating to the treament of prisoners of war provides, at Article 4, that —

      “A. Prisoners of war … are persons belonging to one of the following categories, who have fallen into the power of the enemy:

      “1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

      “2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this terrirory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

      “(a) That of being commanded by a person responsible for his subordinates;

      (b) That of having a fixed distinctive sign recognizable at a distance;

      (c) That of carrying arms openly;

      (d) That of conducting their operations in accordance with the laws and customs of war.”

      The purpose of this language is to make clear that NOT every combatant is covered by this treaty, i.e.,

      What Mark fails to realize is that liberals have special power to make something true if they say it enough times…. :-?

    14. Baklava says:

      Funny article which has this text:
      Jumana Musa, advocacy director for Amnesty International USA, said the Supreme Court’s decision doesn’t address the jail’s future.

      All it does, she said, is “stop dead in its tracks … the sham trials that have been going on under the guise of war crimes trials, charging people with crimes that aren’t even war crimes, and I think that’s the fundamental effect of this.”

      Bridget Arimond, assistant director of the Center for International Human Rights at Northwestern University’s School of Law, said that “the administration is clearly going to have to come up with a different approach to trying these cases if it wishes to try the detainees under the military justice system.”

      Barbara Olshansky, legal director of the Center for Constitutional Rights, which represents about 300 Guantanamo detainees, said the cases belong in civilian courts.

      “We have lawful courts in this country that are perfectly capable of hearing these cases,” she said. “Try them in law courts or release them.

      uhuh. Release them. The driver for Osama who did more than DRIVE. It wasn’t like he was driving Miss Daisy #1 and #2 the Supreme court in it’s ruling noted the allegations included a lot more than “driving” Osama. Is that who you want released?

    15. Mwalimu Daudi says:

      Wait a minute – is al Qaeda treating its prisoners according to the Geneva convention when it tortures and beheads them?

    16. – al Qaeda is not required to follow the Geneva conventions (or any other limits) according to the disloyal opposition….

      – Bang **==