Supreme Court squashes Bush's power-grab

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No doubt you've heard about the U.S. Supreme Court decision today that the administration's plan for tribunals for Gunatanomo prisoners (Hamdan vs. Rumsfeld), was illegal. That Bush had better go to Congress for authorization since they violated the Geneval convention.

And no doubt you were elated. Here's what you probably missed that sounds extremely positive.

Marty Lederman writes about the decision's most important implications:

1. That the President's conduct is subject to the limitations of statute and treaty (see, e.g., footnote 23, and the Kennedy and Breyer excerpts that Orin Kerr quotes).

2. That Congress's enactments are best construed to require compliance with the international laws of armed conflict, absent contrary legislative direction.

3. That Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. (See also the AMK concurrence: 'The provision is part of a treaty the United States has ratified and thus accepted as binding law. By Act of Congress, moreover, violations of Common Article 3 are considered 'war crimes,' punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U. S. C. § 2441.') This ruling has enormous implications for the Administration's detention and interrogation practices, because the Administration's legal conclusion that CA3 does not apply, and that we will not apply it as a matter of practice, was the key linchpin to the entire edifice of legal maneuvers that led to waterboarding, hypothermia, degradation, etc. See my post here. Per today's decision, the Administration appears to have been engaged in war crimes, which are subject to the death penalty. Although I don't think due process would allow prosecution based on conduct previously undertaken on OLC's advice that CA3 did not apply (after all, the Chief Justice concluded, in the D.C. Circuit, that CA3 did not apply), practices going forward are bound to change, and quick. (I'm sure the memos are being drafted and distributed in the CIA and DOD even as we "speak.")

War Crimes! Of course, it doesn't seem like Bush can be prosecuted since the ruling came after his memos legitimizing torture, but surely any subsequent actions violating CA3 of the convention are culpable.

What was also encouraging was Rep Jane Harman, the ranking Democrat on the House Intelligence Committee, taking a strong position on the illegality of the tribunals (hopefully the Dems won't cave in to the "weak-on-defense" line that the Republicans have been beating them up with). Here's what she said:

"Since 9/11, the Bush administration has operated in the 'fog of law' -- expanding executive branch power, ignoring the will of Congress, bypassing courts and disregarding international law," Harman said in a statement.

"Today's Supreme Court decision will help lift that fog. The opinion makes clear that the president's power is not unlimited when it comes to holding people without due process."