Thursday, June 29, 2006

No military tribunals for Gitmo trials

I am stunned and happy and feeling very appreciative of our system of government.

The Supreme Court today delivered a stunning rebuke to the Bush administration over its plans to try Guantanamo detainees before military commissions, ruling that the commissions violate U.S. law and the Geneva Conventions governing the treatment of war prisoners.

In a 5-3 decision, the court said the trials were not authorized by any act of Congress and that their structure and procedures violate the Uniform Code of Military Justice (UCMJ) and the four Geneva Conventions signed in 1949.

It should be a no-brainer that creating a separate legal system for arbitrarily defined prisoners -- one with far fewer legal protections than either our civilian or military justice systems -- was a bad idea. It might be Constitutional (though still ill-advised) if Congress created such a system, but to do so solely through executive power represented an usurpation of Congress' role. I'm glad to see our judicial branch come down clearly on this.

In the short term, nothing will change at Guantanamo. But the ruling means the prisoners there must be tried either as civilians in federal court, or as military combatants under the UCMJ. Presumably they are entitled to a speedy trial as well, and won't simply remain detained indefinitely because the administration refuses to submit to a trial.

The ruling also deals a blow to the President's heavy reliance on his "inherent authority" to disregard laws he finds inconvenient. Part of his legal justification for the military tribunals rested on such "inherent" authority. This ruling kicks the legs out from under that argument, and points up that the only valid opinion on Bush's "inherent" authority comes from the judicial branch.

If Bush wishes to claim such authority, he ought to seek a Supreme Court ruling validating that claim -- not simply assert the authority and then exercise it until such time as a lawsuit challenging that authority wends its way through the courts. If an emergency requires him to act before he has an opportunity to seek such a ruling, he should still seek the ruling as soon as possible -- and use the power sparingly in the meantime.

The three justices that voted in favor of the administration's position were -- unsurprisingly -- Scalia, Thomas and Alito. John Roberts recused himself because he had heard the case as a lower-court judge; but he likely would have voted with the other three.

What's interesting about that is that it takes the idea of judicial deference to a whole new level. Their dissent rests largely on a law passed in 2005 that stripped the courts of any jurisdiction over Guantanamo detainees. It's rather amazing to see three Supreme Court justices meekly accept Congress' power to arbitrarily diminish their authority over a geographic region. Congress has the power to regulate the courts, of course, but where does that power end? What would stop Congress from legislating the judicial branch out of existence, either by defunding it or simply narrowing its authority to the point that it is powerless?

But that's a battle for another day. For now the Supreme Court has reaffirmed some basic principles of American law, and for that we should be happy.

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Anonymous Anonymous said...

What would stop Congress from legislating the judicial branch out of existence, either by defunding it or simply narrowing its authority to the point that it is powerless?

Article II Section 2 Clause 2 Jurisdiction of the Supreme Court prevents that.

Congress limited the Appellate Jurisdiction of the SC. The Constitution expressly allows this.

Original Jurisdiction of the Court can't be removed unless by Constitutional Amendment. So your scenario is currently impossible.

6/29/2006 3:13 PM  
Blogger Sean Aqui said...

I'm not a legal scholar, so thanks for the pointers. A couple of comments:

1. I think you mean Article III, not Article II.

2. The Clause you refer to allows Congress to limit appellate jurisdiction of the federal courts. Which appears to mean that Congress could choose to keep the courts out of all disputes except the specific cases mentioned in Clause 2: cases involving "Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party."

I see nothing that would keep Congress from excluding the federal judiciary from all other cases, or from choosing to fund the judicial branch at an absurdly low level so that even if it had technical oversight, it would not exist as a practical matter.

My post was not meant to suggest that the 2005 law was unconstitutional; only to marvel at the complacency with which the conservative justices embraced such an attempt to marginalize the judiciary.

6/29/2006 5:22 PM  

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