The Big Question:
This is a complex case, with three big questions:
- Is the U.S. government bound by the Geneva Conventions when dealing with "enemy combatants"?
- Is the executive branch's establishment of new judicial processes, to try the Guantanamo detainees, consistent with the Uniform Code of Military Justice and/or legislated by 2001's Authorization of Use of Military Force (AUMF)?
- Can conspiracy be punished as a war crime?
The Geneva Conventions and the Binding Authority of International Law:
In 1949, the United States signed the Geneva Conventions regulating treatment of prisoners of war. The Bush administration has charged that terrorists and other paramilitary combatants are not covered by the Geneva Conventions because they're not soldiers in the traditional sense, are not covered by the U.S. Bill of Rights because they're not citizens, and are therefore "enemy combatants" who have no clearly outlined rights.
Executive Branch Powers and the Authorization for Use of Military Force (AUMF):
On September 18th, 2001, Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF) granting the executive branch the authority to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."
Conspiracy as a War Crime:
The Bush administration has not accuse the defendant himself of committing any terrorist acts, or with any documented war crimes. Instead, it has charged him with conspiracy, which has not traditionally been accepted as a proper charge for military tribunals.
Background of the Case:
During the U.S. invasion of Afghanistan in 2001, U.S. military forces captured a young Yemeni national named Salim Ahmed Hamdan, who has worked as a driver and bodyguard for Osama bin Laden. He was held without trial until July 2004, at which point he was charged with "conspiracy to commit terrorism" based primarily on his association with bin Laden. He has not been accused of directly participating in, or coordinating, any terrorist acts.
The Supreme Court's Verdict:
In a 5-3 decision, the Supreme Court ruled in favor of Mr. Hamdan. Chief Justice John Roberts, who had ruled against Hamdan last year while serving on the D.C. Circuit Court of Appeals, recused himself from the Supreme Court case.
The Plurality Ruling:
The Court's complex 73-page opinion, written by Justice John Paul Stevens
and joined by justices Stephen Breyer
, Ruth Bader Ginsburg
, and David Souter
, holds that (among other things):
- "Enemy combatants" are protected by the Geneva Conventions.
- The AUMF does not grant Bush the authority to create new tribunals without congressional mandate.
- Conspiracy is not a war crime under the Uniform Code of Military Justice.
Justice Stephen Breyer
joined with Justice Stevens
' majority ruling, but also wrote an attached one-page concurrence (joined by justices Ginsburg
, and Souter
, in which he emphasized that although the president lacks the authority to create a new tribunal, Congress does not. On the specific matter of establishing a new tribunal, Breyer
emphasizes that "(n)othing prevents the President from returning to Congress to seek the authority he believes necessary."
Justice Anthony Kennedy
--who joined with Breyer
's concurrence, but not with Stevens
' ruling--holds that the tribunal plans violate military law. "In light of the conclusion that the military commission here is unauthorized under the UCMJ," Kennedy
writes, "I see no need to consider several further issues addressed in the plurality opinion ... and the dissent by Justice Thomas."
Justice Antonin Scalia
wrote a scathing dissent, joined by justices Alito
, in which he states that the Detainee Treatment Act (DTA) of 2005 already establishes legislative parameters for Bush's alternate tribunal plan.
At 49 pages, Justice Justice Clarence Thomas'
dissent is by far the most extensive and exhaustive of the three, affirmed completely by Justice Scalia
but only in part by Justice Alito
. The dissent makes two arguments:
- That the Supreme Court should play a cautious and limited role in military matters, which are traditionally the business of the Executive Branch.
- That enemy combatants are not protected by the Geneva Conventions, because terrorist groups (a) are not parties to the treaty and (b) operate in multiple theaters of operations.
Alito's Dissent: Justice Samuel Alito
's dissent, by far the most moderate of the three, makes the argument that the Bush administration's tribunal plans are, in fact, consistent with the Geneva Conventions. In so doing he cites the original 1949 commentary on Article 3 of the Geneva Conventions, which states that it is intended only to prevent "summary" judgments and that there "is nothing in it to prevent a person presumed to be guilty from being arrested and so placed in a position where he can do no further harm..."
Impact of the Ruling:
This is, without question, the single most significant Supreme Court ruling to date dealing with the war on terror. The ruling's most substantial point is that all non-citizen prisoners are protected by the Geneva Conventions. This essentially renders illegal the Bush administration's program of indefinite detention, mild torture, and extraordinary rendition, calling on the administration to treat all detainees in a manner consistent with international human rights standards.