A Supreme Challenge to Bush's Authority

By Onnesha Roychoudhuri, AlterNet. Posted June 30, 2006.

"The game is up."

That's how Michael Ratner, president of the Center for Constitutional Rights (CCR), summed up the implications of Thursday's Supreme Court ruling in the case of Guantanamo detainee Salim Hamdan.

"The Supreme Court has firmly rejected President Bush's attempt to sidestep American courts," Ratner said in a press conference this morning. "Now the president must act: Try our clients in lawful U.S. courts or release them."

Up to this point, litigation surrounding Guantanamo detainees has been heavily manipulated by the Bush administration, which has sought to find legal loopholes in order to continue to hold hundreds of detained civilians in the "war on terror."

In Hamdan v. Rumsfeld, the court issued an unmistakably clear rebuke to the president's assertion that he has the authority to violate the Geneva Conventions and the Uniform Code of Military Justice (UCMJ) in the establishment of the Guantanamo tribunals. But today's Supreme Court ruling has implications that stretch far beyond the case of Hamdan -- beyond, even, Guantanamo detainees. Indeed, the Supreme Court ruling marks what may well be the beginning of the end to an unchecked executive power.

You can only exercise executive powers within the law, not above it

The language used in the Supreme Court decision clearly states that President Bush cannot violate already existing laws in exercising executive power: "… in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."

While the Bush administration asserts that existing laws are neither adequate for protecting the country nor for trying terrorism suspects, the court states, "It is not evident why the danger posed by international terrorism, considerable though it is, should require, in the case of Hamdan's trial, any variance from the courts-martial rules."

The court affirmed that the Geneva Conventions do apply to everyone in the "war on terror." This goes beyond Guantanamo detainees and includes anyone detained, even in so-called "black sites" run by the CIA. The reaffirmation that the Geneva Conventions are applicable in these "brave new times" sets a critical precedent. As CCR's legal director Barbara Olshansky notes, this means that these established rules of law and protections will be available to everyone, everywhere around the world, regardless of the nature of an armed conflict we may be in.

Notably, the court contradicted the D.C. Circuit Court's earlier opinion that the Conventions do not apply to Hamdan because he was captured during a war with al Qaida, which is not a signatory of the Conventions. The court made quick work of this opinion:

The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties [ i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum," certain provisions protecting "[p]ersons … placed hors de combat by … detention," including a prohibition on "the passing of sentences … without previous judgment … by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples."

Yes, torture is illegal

The explicit mention of the applicability of Common Article 3 goes beyond establishing the right to certain judicial guarantees. It makes quick work of "enhanced interrogation techniques." As Marty Lederman of SCOTUSblog writes,

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.'

That means no water-boarding, no prisoner pyramids, no sensory deprivation, nor any other linguistic twist on what is otherwise known as torture and abuse.

Onnesha Roychoudhuri is a former assistant editor at AlterNet.

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