Pick one: This morning the Supreme Court (A) Struck a blow for the rule of law and started the process of restoring American credibility in the world community; or (B) Undermined the authority of the Executive Branch to deal effectively with international terrorism, at a time of national peril.
In Hamden v. Rumsfeld and by a 5-3 vote on most points (Justice Kennedy concurs in all of the main points of the rest of the majority - Stevens, Souter, Ginsburg, and Breyer), the Court has plowed a wide swath through the Administration's attempt to set up military tribunals to try suspected foreign terrorists under the congressional Authorization of Use of Military Force ("AUMF") joint resolution. Justice Alito writes the dissent, joined by Scalia and Thomas (Roberts, C.J., not participating in the case - he was on the D.C. Circuit when it decided this case in favor of the Administration).
First, the Court casts aside the Administration's argument that the AUMF suspended the writ of habeas corpus (Hamden used a habeas writ to reach the courts). The Court's jumping of that hurdle gives it jurisdiction to hear the case, and it was clear at the argument of this case last March that the Court wanted to reach the merits of the case. The Administration's argument, that habeas corpus can be suspended even when Congress more or less "stumbles" into it without an express declaration, gets nowhere.
The Court turns to the Administration's abstention argument. Traditionally, courts won't intervene before a trial in cases where military justice is being carried out. The Court points out that Hamden is not in the military - he's in al-Quaida (and was Osama bin Laden's chauffeur). Later on, however, the Court finds the trial process for Hamden is a violation of the Uniform Code of Military Justice (UCMJ), which seems to undercut the rationale for refusing to abstain. Oh well, abstention is discretionary.
Now we get to the meat of the Court's decision. The military commission established by the Administration to try foreign combattants is not authorized by Congress's AUMF resolution. Moreover, its procedures violate the UCMJ and the Geneva Conventions (here comes the nose of the international legal standards camel back under the tent, but of course the U.S. long ago signed onto the Geneva Conventions). Nothing in the AUMF indicates that Congress meant to authorize the President to enlarge or alter UCMJ procedural safeguards, says the Court. Bottom line - the Guantanamo military tribunals are illegal.
The closing piece is the zinger. The Court acknowledges that Hamden may be a very bad fellow, but it makes it perfectly clear that the Executive must comply with the prevailing rule of law in undertaking to try him.
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