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The Supreme Court actually upheld the Constitution! The President is actually subject to the Rule of Law! Democracy! We actually have to treat prisoners humanely and in accord with treaties to which we are signatories! Awesome!

Shorter Supreme Court: 9/11 did not rewrite the Constitution

Really, this ruling should not be surprising, but with the administration’s attempt to pack the court with authoritarian fundamentalists and yesterdays bullshit decision regarding the DeLay gerrymandering, I was not optimistic.

It feels good to be surprised sometimes.

In a sharp rebuke of President George W. Bush’s tactics in the war on terrorism, the U.S. Supreme Court on Thursday struck down as illegal the military tribunal system set up to try Guantanamo prisoners.

By a 5-3 vote, the nation’s highest court in a landmark decision declared that the tribunals, which Bush created right after the September 11 attacks, violated the Geneva Conventions and U.S. military rules.

“We conclude that the military commission convened to try (Salim Ahmed) Hamdan lacks power to proceed because its structure and procedures violate” the international agreement that covers treatment of prisoners of war, as well as the Uniform Code of Military Justice, Justice John Paul Stevens wrote for the court majority.

Majority opinion: Stevens, Souter, Ginsberg, Breyer
Concurring: Kennedy
Dissent: Scalia, Thomas, scAlito (surprised?)
Abstain: Roberts

Can I get a “hell yeah!” (HELL YEAH!). Thank you, my people. The more I think about the impact of this opinion, the more excited I become. I haven’t felt this good since every poll anywhere said Kerry won in election 2004. Wooo! … oh, nm.

It must burn the Busheviks to realize that they are still 2 votes short of total control.

Read the opinion. The SCT website is slammed, so I stored a copy of the opinion here on grumpasaurus, which may be faster for you to download.

The analysis is long, so I’m putting it after the jump.

In sum: the President has to comply with the law, Congress intended for him to comply with the law… and he didn’t comply with the law. Oh yeah, and torture is illegal, the tribunals are illegal, and we must treat all prisoners humanely with Common Article 3 of the Geneva Conventions as a floor of acceptable behavior.

Huh. Imagine that.

The problem with Stevens’ opinions is that he doesn’t give good quote. Lots of rambling discussion, but no real condensed THIS IS THE RULING section that looks sexy on headlines. Not really a wordsmith, that Stevens. Here’s the money paragraph:

For the reasons that follow, we conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions. Four of us also conclude, see Part V, infra, that the offense with which Hamdan has been charged is not an “offens[e] that by … the law of war may be tried by military commissions.”

Wooo, feel the energy of the words! Just crackling off the page.

There are a two major holdings to be taken from this decision. The first of these should be considered obvious and yet had to be stated anyway. The third is more revolutionary and I’ll focus more on that holding.

First, the President is subject to the limitations of statute and treaty, and he exceeded the scope of his authority with the tribunals at Gitmo.

This should not be revolutionary, but for the fascists in the administration it will come as a hypothermic waterboard shock to them that they cannot set up kangaroo courts to convict their chosen victims detainees. That it has to be stated in a Supreme Court opinion shows how far we have fallen.

Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment.

Again, not revolutionary, merely obvious. Unless you’re a Bushevik.

A side note that the Government argued is that Congress gave us this power implicitly. Not so, says the SCT. For when Congress passes a resolution or enacts other law or statements, those statements are not blanket grants of authority. Instead, Congress expects, absent explicit authorization to do otherwise, that the Government will abide by the existing laws of war.

Contrary to the Government’s assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitutionand the common law of war, the President already had to convene military commissions—with the express condition that he and those under his command comply with the law of war.

There is more in the syllabus about how Congress specifically rejected the argument that the administration is making, and so the administration’s argument is howdoyousay? weak.

The most important holding in Hamdan v. Rumsfeld is with regards to Common Article 3 of the Geneva Conventions an how it applies to our country with the full force of the law as a signed treaty. Namely, Common Article 3 applies to our conflict with al Qaeda and our treatment of prisoners. Even more precisely, how Common Article 3 applies to our treatment of all of our prisoners in all conflicts.

There is another separate argument in the concurrence about separation of powers issues with regards to the military tribunals, but I think that can be put aside for the moment. If Congress’ actions are to be construed as requiring accordance with the law and Common Article 3 has the full force of the law, then the military tribunal’s danger to the separation of powers is a moot point.

Common Article 3 states, in essence, that prisoners must be treated humanely, with no violence to their lives, no cruel treatment, no waterboarding, no hypothermia, no sleep deprivation, and no shitting on their religious texts.

All of which we have done. All of which the CIA and Gitmo and Abu Ghraib continue to do.

All of which are now illegal. Indisputably so.

The Busheviks have been arguing since day one that the Geneva convention doesn’t apply since al Qaeda is not a state. Thus these are not soldiers, but combatants, and they

Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character occurring inthe 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 bycivilized peoples.” …

The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ” That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory “accepts and applies” those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict “in the territory of” a signatory…

Common Article 3’s requirements are general, crafted to accommodate a wide variety of legal systems, but they are requirements nonetheless. The commission convened to try Hamdan does not meet those requirements.

This is awkwardly worded, so let me rephrase a bit more succinctly why the Appellate Court’s decision was erroneous:

Common Article 3 affords some mimimal protection (falling short of full protection under the Conventions) to individuals (nationals of signatory or nonsignatory countries) who are involved in a conflict “in the territory of” a signatory. 9/11 = in the territory of signatory; (alternatively, it is probably easily argued that anywhere our forces are in conflict = in the territory of a signatory). Therefore, therefore, we are beholden as a matter of law to uphold at least Common 3 of Geneva, which prohibits degradations upon the person (waterboarding, hypothermia, sleep dep, etc) and affords proper medical care and judicial proceedings.

This is the important part of the holding. Not only is Gitmo illegal, but so is Abu Ghraib. So is the CIA “extraordinary rendition” program and the gulag archipelaego. So is the illegal wiretapping. So is the sidestepping of FISA.

The Yoo theory of Executive infallibility (AKA the Unitary Executive, AKA “King”) is also destroyed now. As is the administration’s argument that Congress has no right to restrain the Executive’s power in a time of war:

Exigency alone, of course, will not justify the establishment and use of penal tribunals not contemplated byArticle I, §8 and Article III, §1 of the Constitution unless some other part of that document authorizes a response to the felt need. See Ex parte Milligan, 4 Wall. 2, 121 (1866) (“Certainly no part of the judicial power of the country was conferred on [military commissions]”); Ex parte Vallandigham, 1 Wall. 243, 251 (1864); see also Quirin, 317 U. S., at 25 (“Congress and the President, like the courts, possess no power not derived from the Constitution”). And that authority, if it exists, can derive only from the powers granted jointly to the President and Congress in time of war. See id., at 26–29; In re Yamashita, 327 U. S. 1, 11 (1946)

Man, the Bushies have to be so bummin’, man.

It should be noted that by the ruling, the Government is compelled to comply with the Conventions in the absence of Congressional statements otherwise. I don’t want to turn this into a law school essay, so I won’t digress too much on this, but it is a possible loophole for the elimination of basic humanity by our government. That Congress certainly wanted the administration to abide by the laws of war implicitly affirms the Conventions, but the possibility remains that they could explicitly state that the Conventions do not apply. Theoretically speaking, of course, though I think that would provoke another Separation of Powers challenge.

I am concerned that the Bush administration will not follow the Rule of Law. They did not feel it necessary for any other part of their activities, not for wiretapping, not for spying, not for war, why would they choose to do so now? If they don’t dismantle Gitmo and the rest, it will be made plain that we live in a banana republic, with no law other than the Rule of Force. It will be apparent that our democracy is dead.

That our government will brazenly ignore a Supreme Court ruling is not inconceivable to me is disturbing. That if it happens, the sheeple of this country won’t give a shit and go back to their My Name is Earl marathon is depressing. I hope this does not happen, but it does not seem like a farfetched idea to me.

If nothing else, the nutters on the wahmbulance now have another example of “activist judges” against whom to rail. See, poor babies? Even in defeat, you are given the tools to continue your petulant, ridiculous whinging against the Rule of Law opinions you disagree with evil, libruhl, activist al Qaeda lovin’ judges!

As a side note, Stevens also takes a moment to knock the shit out of Scalia. Check this out:

Finally, we cannot leave unaddressed JUSTICE SCALIA’s contentions that the “meaning of §1005(e)(1) is entirely clear,” post, at 6, and that “the plain import of a statute repealing jurisdiction is to eliminate the power to consider and render judgment—in an already pending case no less than in a case yet to be filed,” post, at 3 (emphasis in original). Only by treating the Bruner rule as an inflexible trump (a thing it has never been, see n. 7, supra) and ignoring both the rest of §1005’s text and its drafting history can one conclude as much.

Oooooh, burn!

I also quote Breyer’s concurrence, in its entirety. Not only because it’s kicks Thomas in the nuts, but also because it’s a worthy read:

The dissenters say that today’s decision would “sorely hamper the President’s ability to confront and defeat anew and deadly enemy.” Post, at 29 (opinion of THOMAS, J.). They suggest that it undermines our Nation’s ability to “preven[t] future attacks” of the grievous sort that wehave already suffered. Post, at 48. That claim leads me to state briefly what I believe the majority sets forth both explicitly and implicitly at greater length. The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a “blank check.” Cf. Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.

Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

See, Stevens… that is how you give good quote.

Other takes: SCOTUS blog (also here), Greenwald, Balkin, ACSBlog, Unspeak (on Scalia’s typically hypocritical and contradictory dissent), ThinkProgress (more on Thomas the chickenhawk’s ad hominem attacks on veteran Stevens), alicublog (quoting the paste eater), TalkLeft, Billmon, WaPo

Update: Bonus chickenhawk points for Thomas (from ACSBlog, above)

Justice Thomas refers to Justice Stevens’ “unfamiliarity with the realities of warfare”; but Stevens served in the U.S. Navy from 1942 to 1945, during World War II. Thomas’s official bio, by contrast, contains no experience of military service. Justice Stevens suffers another unwarranted ad hominim[sic] attack from Justice Scalia, who refers to Stevens’ sarcasm.