Supremes Allow Segue On Detainees

This post should have had a subtitle: - From "Stop, in the Name of Love" to "You Keep Me Hanging On" Without Skipping A Beat - but it wouldn't have all fitted the blogger formatting box.

News that the Supreme Court has ruled that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees. SCOTUSblog has the really crucial bit:

Even more importantly for present purposes, the Court held that Common Article 3 of Geneva ap[p]lies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

If I'm right about this, it's enormously significant.

Well, DUH! For a start, it means that the Nuremberg Principles clearly apply all the way up the chain of command! (Hey, guess what, Scott Ritter was right again.)

This has led many, among them Kevin Drum, to wonder if this means the closure of Gitmo. Sadly, No.

The administration has been left two options. The first is to halt military tribunals and simply keep detainees incarcerated for the "duration of the conflict" - something perfectly legal under the Geneva Convention. The commander at Gitmo has already signalled that he is happy to do exactly that.

Adm. Harry Harris, the prison commander, said in an interview this week...he would build a second courtroom if the tribunals are allowed to proceed but little else would change because the court was not asked to rule on Guantanamo itself, a prison camp that human rights groups, the United Nations and foreign governments have sharply criticized.
..."If they rule against the government I don't see how that's going to affect us. From my perspective I think the impact will be negligible," Harris told Reuters.

Of course, given what Bush and his cronies have said about the "War on Terror" that effectively means forever but hey, America only has real terrorists detained at Gitmo, according to the Right. If we can't try 'em, fry 'em. After all, America would never detain innocent people, only the guilty - just ask Rush Limbaugh and Tom DeLay! The idiocy of the bloodthirsty Right should be readily apparent here.

The second option is to do an end-run around the Court, either by plain Executive fiat or by getting the Republicans and Dem Hawks in Congress - all scared stiff of looking like "cut and run" types - to "propose a bill to override the decision and keep the terrorists in jail until they are securely transferred to host countries for permanent punishment"...and more torture.

The Counterterrorism Blog predicts a rightwing victory over the Court:

They will challenge the "judicial interference with national security" and challenge dissenting Congressmen and civil libertarians to either stand with the terrorists or the American people. The Pentagon will continue to release a small number of detainees as circumstances allow. The bill will pass easily and quickly. And if the Supremes invalidate that law, we'll see another legislative response, and another, until they get it right. Just watch.

Hill Republicans (Sens. Graham and Kyl with Frist's support) are already promising a bill to enable Bush to keep his military tribunals. The way was expertly paved by Alito in his dissenting statement when he wrote that "Such an order brings the Judicial Branch into direct conflict with the Executive in an area where the Executive’s competence is maximal and ours is virtually nonexistent." Of course, any such bill would be illegal under international and U.S. law - as the majority of the Supremes clearly see - since it would unilaterally abrogate part of the Geneva Convention, which the U.S. has sworn to uphold by signing the treaty. Voting for such a bill would be, legally speaking and by the terms of the Nuremberg principles, a war crime in itself.

Not that it will matter to Imperial America - after all, who has the power to arrest the criminals here? They will do it, and America will become even more of a pariah on the world stage, making it even harder to actually win the War on Terror.

Update Wow, that was fast! Bush has already said he will seek the complicity of Congress in breaking U.S. and international law by seeking their "approval to proceed with trying terrorism suspects before military tribunals."

Update 2 I'm not alone in noticing the "war crimes" implications. Here's Steve Vladeck, Professor at the University of Miami School of Law, who "played a small but recurring role on the legal team for the Petitioner in Hamdan":

Once Common Article 3 applies to the conflict with al Qaeda, the legal framework within which we analyze the various interrogation and torture allegations changes dramatically, as does the broader issue of the applicability and enforceability of the Geneva Conventions in U.S. courts, and the potential liability of various U.S. officials under the War Crimes Act of 1996, 18 U.S.C. § 2441, for grave violations thereof. [Emphasis Mine]