Another Country Heard From

The Supreme Court today decided that the President actually has to listen to a little thing called "the law" as well as the other two branches of government:

The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees, saying in a strong rebuke that the trials were illegal under U.S. and international law... The court declared 5-3 that the trials for 10 foreign terror suspects violate U.S. law and the Geneva conventions.

Bush said there might still be a way to work with Congress to sanction military tribunals for detainees and the American people should know the ruling "won't cause killers to be put out on the street."

I heard this press conference this morning. Don't insult my intelligence. The Court is saying that if you want to try prisoners captured in this war, you need to apply federal standards and international treaty standards to which this country is a signatory. This wasn't a "not guilty" ruling. Don't depend on ignorance when you make these ridiculous statements.

Obviously Bush is going to go to the Rubber Stamp Republican Congress to try and provide him some cover so he can continue to play judge, jury and executioner in these trials, denying legal protections for detainees, the ability to read the evidence used in charging them, access to lawyers, et cetera. Justice Breyer's opinion specifically says that he can do so. Ultimately, I've no doubt that the Republicans will turn this into an election issue, smearing anyone who doesn't want to set up illegal, dictatorial courts as "America-haters" who want to set terrorists free. But I agree with Justice Stevens, whose lead opinion states that these detainees should be tried by military courts-martial with the same standards applied to all defendants in those courts.

Marty Lederman at SCOTUSBlog says the effects are wide-ranging:

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.

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).

If I'm right about this, it's enormously significant.

I don't think the Bush Administration will see it that way, and thanks to the signing statement on the McCain Amendment I doubt the Supremes will get another chance to reiterate this.

However, we do have a reinforcement of the separation of powers rule that is one of the bedrocks of the American system. One branch of government cannot co-opt the ability to run courts in manners that they see fit, and they cannot bypass Congress in setting them up. This rebuke of one-branch government caused the sleeping giant of the Court to awake and defend the sacred principle of monarchical rule:

Justice Clarence Thomas wrote a strongly worded dissent from Thursday's ruling and took the unusual step of reading part of it from the bench — something he had never done before in his 15 years. He said the court's decision would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."

The court's willingness, Thomas wrote in the dissent, "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous."

See how he turns the determination of the White House into the determination of "the political branches"? Clever, Sir Thomas. Or not.

You can't close Guantanamo without a determination about how to adjudicate whoever's still there; otherwise they'll be moved to a more secret and less controversial location. This is a step towards eradicating this black spot on our national character.

UPDATE: Feingold:

"The Supreme Court’s decision concerning military commissions at Guantanamo Bay is a major rebuke to an Administration that has too often disregarded the rule of law. It is a testament to our system of government that the Supreme Court has stood up against this overreaching by the executive branch."