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Hamdan Handed Down: Court Slaps Down the Lawless Administration


More when I have the chance to read it, but it sounds like good news: the Court–in a majority opinion by John Paul Stevens–has ruled, 5-3, that the procedures used at Guantanamo were illegal.

Lyle Denniston: the Court “found the “military commissions” illegal under both military justice law and the Geneva Convention.” Still no word on who was the fifth vote for the majority.

…apparently it was Kennedy.

…this outcome was indeed the downside for Bush of appointing Roberts, who had to recuse himself. However, it should be noted that a tie would have gone to the administration because the lower court ruled in its favor, so Kennedy could have taken the decision away from the court’s more liberal members, but didn’t.

…little elves whose institutions can afford Westlaw have forwarded me the text. One key paragraph from the Stevens opinion:

The charge’s shortcomings are not merely formal, but are indicative of a broader inability on the Executive’s part here to satisfy the most basic precondition-at least in the absence of specific congressional authorization-for establishment of military commissions: military necessity. Hamdan’s tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities. Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001 and the AUMF. That may well be a crime,but it is not an offense that “by the law of war may be tried by military commissio[n].” None of the overt acts alleged to have been committed in furtherance of the agreement is itself a war crime, or even necessarily occurred during time of, or in a theater of, war. Any urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and he was not charged until mid-2004. These simply are not the circumstances in which, by any stretch of the historical evidence or this Court’s precedents, a military commission established by Executive Order under the authority of Article 21 of the UCMJ may lawfully try a person and subject him to punishment.

This is exactly right. The way in which the adminsitration has proceeded with this case makes claims that basic legal procedures and constraints are a luxury that urgency can’t afford self-evident nonsense.

…the Court’s logic, of course, also makes it more clear that the illegal wiretapping program is in fact illegal.

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