Thursday, June 29, 2006

A Major Legal Setback

Drudge has the headline (and now a link): Supreme Court blocks Gitmo War Trials. By a 5-3 ruling, the high court has determined that the Bush Administration overstepped its authority by ordering military tribunals for terrorist detainees at Guantanamo Bay, Cuba. The Supreme Court made its ruling in the case of Salim Ahmed Hamdan, a Yemeni national who once worked as a driver for Osama bin Laden. Hamdan filed suit against Defense Secretary Donald Rumsfeld, prompting the court case that eventually resulted in today's decision.

Today's majority decision was written by Justice John Paul Stevens, the court's most liberal member. He was joined by the usual suspects, plus Justice Anthony Kennedy (surprise, surprise). New Chief Justice John Roberts was barred from voting in the case. As a federal appellate judge, he ruled against Hamdan when the case was brought before his appeals court. Today's ruling overturns the appellate court decision.

There is no way to mitigate the potential damage inflicted by his misguided decision. Take the legal antics of the Moussaoui trial (which lasted more than three years), multiply that by the number of inmates at Guantanamo, and you've got some idea of what's ahead for our federal courts system. From the district court to the Supreme Court, the system will be jammed with Al-Qaida suspects for years to come, each determined to create their own courtroom circus, and drag the process out as long as possible.

And who knows? If the Democrats regain the White House (and get a few court vacancies to work with), there's no telling what rights the SCOTUS may eventually confer on stateless terrorists. Meanwhile, every defense attorney with an Al Qaida client will mount their own, personal fishing expedition through U.S. national security files , in search of "evidence" to support their clients. Naturally, much of the information obtained in discovery will wind up on the front pages of friendly newspapers. Afterall, the public has a right to know, don't they? Bill Keller and the gang at the Times must be positively atwitter at that prospect.

C'mon, Spook surely you exaggerate. To the contrary, the legal assault on classified files by defense attorneys has alread begun, and let me offer a personal example. Earlier this week, a former colleague told me that he had been directed to seach his files for anything related to a certain terror suspect, now in federal custody. Apparently, the suspect's attorney is requesting information that may exist in intelligence files on his client, and he's casting the widest possible dragnet. Please note that my friend's area of expertise is adversary aircraft and tactics--he has never worked terrorism issues. But he had to spend an hour carefully checking his files, and responding to the request, a process that was repeatedly hundreds (if not thousands) of times across the intel community. This type of query will increase exponentially, as more Guantanamo suspects gain access our legal system, clogging both the courts and our intelligence community with useless requests for information.

I'm not a lawyer, but the most "interesting" element of this morning's decision is the Supreme Court's apparent finding that the Bush Administration plan violates not only U.S. law, but the Geneva Convention. You may recall that the convention provides no protection for combatants who do not fight for a nation-state or recognized government. But somehow, the five justices found enough wiggle room to determine that military trials violate both U.S. law and international accords. There must be dancing in the halls at ACLU offices around the country; the group's lawyers must be salivating at the prospect of a full-fledged legal war on the Bush Administration, courtesy of the nation's highest courts. And I'm sure the personal injury lawyers won't be far behind. Was that prison guard verbally or physically abusive, Mr. Terrorist? Don't worry, we'll make him pay.

Reacting to today's ruling, the DOD says it will have no affect on the detention effort at Gitmo. Don't be so sure. Emboldened by today's decision, I'm sure that a battalion of "human rights" attorneys will challenge the legality of the detention program, claiming that inmates are subjected to cruel and unusual punishment, through isolation and indefinite confinement. President Bush said a few months ago that he's like to shut down Gitmo. With a little help from the Supreme Court and the legal community, he may get that chance.


cynical joe said...

The Republicans control the Presidency, the House, and the Senate. If Bush thinks the SCOTUS is interfering with the War on Terror, he can simply lead a legislative effort and make new laws in regard to his powers. This may or may not apply to Guantanamo prisoners already captured. (I'm not a lawyer, and I don't play one on TV) Again, if the Bush Administration disagrees with the Geneva conventions there are legislative remedies, including withdrawing from the conventions.

Spook86 said...

You are correct, but any new law will be subject to legal review, and it's guaranteed that such a statute will be challenged in court. Based on today's decision, it's hard to believe the courts would support a law that grants powers, which (according to the court) exceed his authority.

Your idea makes perfect sense, and at least 2 GOP senators are prepared to introduce a bill, establishing that type of law. But, given the court's "take" on this issue, I don't think the measure would survive legal review.

Chris said...

Paradoxically, this ruling makes battlefield killings, renditions and secrecy more likely. I do not believe it likely that the military will give up on prisoners as a source of intel. This just makes it more likely that any prisoners deemed to be worth interrogating will be held somewhere exceedingly dark.

Mrs. Davis said...

Chris is correct. This ruling, the Tucker & Menchaca torture-murder and Shalit kidnapping mean this will become a no surrender/take no prisoners conflict, ultimately degenerating to the level of the Pacific Theater. And that is a necessary condition for final victory.

El Jefe Maximo said...

In US law, later legislation prevails over an earlier treaty. We need legislation, pronto, requiring the courts to accept as binding the interpretation of treaties by the Attorney-General or the President. Alternatively we need a jurisdiction-stripping bill.

Papa Ray said...

I can see overflights going into some small country with no U.S. presence, arriving with a group of people and leaving with several less.

No mention in any records of any prisoners. All were KIA.

Papa Ray

Mike H. said...

Like Joe I'm not a lawyer and I don't play one on tv either, but if a follow on law is passed, then Roberts doesn't have to recuse himself and the balance of the court is up for grabs again.

Making The Wheels Turn said...

From a purely political standpoint, this SC decision could easily turn into a gift from Heaven for Karl Rove & his team for the November midterm elections.

Let's think about this decision from a political standpoint:

1. Judicial Activism by the Liberals raises it's ugly head once again. And in the "War on Terrorism" to boot. Want to restart your conservative base - well, I can ardly think of a better issue. It's actually a "twofer" (Judicial Activism and The War on Terrorism allwrapped up into one easy-to-understand issue).

Imagine a "catch & release" political ad (just in time for the November elections) with an image of terrorists being released onto an unsuspecting public by liberals....

Now, what happens if olde man Stevens hits the bricks off the SC before 2008....

2. Now, go the next step. The Bush43 administration proposes new legislation on the War on Terrorism, and immediately hits their knees praying that the Democrats are in oposition.

Result: Bush43 & the Republicans look strong, fighting against those indsideous liberal forces (Democratic liberals and the news media) who are endangering our security here at home.

I mean, if I'm playing the role of a Democratic operative planning for the midterm elections, I read this decision and once I understand it, I'm headed out the door to drink my diner, all the time wondering "Why?" my party seems so determined to find a way (any way) to again snatch defeat from the jaws of victory.

I understand this SC decision will be an administrative nightmare, but from a political standpoint, this whole issue could very easily turn into a gift from the heavens to Bush43 and his Administration.

John (Useful Fools) said...

Although I haven't read the ruling, I have seen commentary by lawyers indicating that this is a narrow ruling - limiting the president's war powers because Congress didn't give this power in its Use of Force resolution. Although I think the ruling is beyond stupid and arrogant, there appears to be a way out: if Congress passes a law authorizing the tribunals, it will apparently pass muster with the courts. Congress has a duty to do so forthwith.

Stevens quotes the UCMJ in its ruling. The UCMJ is US law, not an international treaty. Congress can easily amend it or exclude it and create a different law for detainees.

We shall see.

Retired Spook said...

I saw this on another blog yesterday. It seemed quite apropos.