Supreme Court Delivers Stunning Rebuke to Bush Administration Over Gitmo Trials

The Supreme Court delivered what the Washington Post calls a stunning rebuke to the Bush administration's proposed policy for Guantanamo inmates. The administration had hoped to try the prisoners at Guantanamo Naval Base under military tribunals, but the Supreme Court scuttled their plan with a 5-3 ruling that these tribunals are neither legal under US law, nor permissible under the Geneva Convention.

Marty Lederman of SCOTUSblog sees huge implications for this decision:


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).
[SCOTUSblog, Balkinization]

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