SCOTUS ruling on "military tribunals" for captured terrorists

NOTE 7-1-06: I have re-written a large portion of this post.  I would also direct your attention to AllahPundit's excellent analysis of the decision, and in particular the lengthy comment left by "EFG".

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Today, the US Supreme Court handed down a ruling in the case of Hamdan v Rumsfeld.

I haven't read everything thoroughly yet, but the gist of the ruling seems to be that the President does not have the right to order "military tribunals" without authorization from Congress.  The ruling was buttressed by the fact that the Geneva Conventions do not grant government executives the right to place prisoners of war on trial.

The heart of the issue involves the legality of the prison at Guantanamo that the US is using to house captured terrorists.  Ever since the US first sent forces into Afghanistan in the fall of 2001 for the purpose of toppling the Taliban government and destroying al-Qaeda's home base, we have captured hundreds of fighters, either members of the Taliban or members of al-Qaeda.  Our efforts have continued since sending troops into Iraq.  These captured fighters are housed in a special detention center at Guantanamo Bay, Cuba.

Opponents of the Guantanamo prison believe that detaining these captured fighters for an indefinite period of time is a violation of their rights, and that the US should either formally charge the prisoners with crimes and try them in a US criminal court of law or release them.  Supporters of the prison believe that the detainees pose a significant threat to the citizens of America and to our armed forces, and as such we are well within our rights to hold them captive until the "War on Terror" is finished. 

The Bush Administration has taken great pains to ensure that the legal status of the foreign fighters housed at Guantanamo has remained simply "detainees."  The administration has fervently resisted attempts to classify the Guantanamo detainees as "prisoners of war."  There are many compelling reasons for this, and chief among them is that "prisoner of war" is universally recognized as a specific classification spelled out in the Geneva Conventions.  By recognizing members of the Taliban and al-Qaeda as "prisoners of war," we would, by proxy, be recognizing the Taliban and al-Qaeda as legitimate legal entities.  We have always recognized both parties as outlaw organizations.

In response to this, liberal organizations like the ACLU have demanded that the Guantanamo prisoners be presented with criminal charges and tried in US criminal courts, with the full Constitutional protection of the US judicial system.  The Bush administration responded to these demands by ordering military tribunals, not criminal court trials, for a handful of Guantanamo prisoners with known and demonstrable ties to either al-Qaeda or Taliban leadership.  The prisoners then brought suit against the administration, claiming that the administration had no authority to convene military tribunals for prisoners who had not been formally declared "prisoners of war."

The AP reports:

Two years ago, the court rejected Bush's claim to have the authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. In this follow-up case, the justices focused solely on the issue of trials for some of the men.

Yesterday's Supreme Court ruling includes a number of interesting points:

• The Court agreed that the Hamdan case did not challenge the government's power to detain prisoners in order to prevent them from doing harm

• The Court suggests that prisoners, both Taliban and al-Qaeda, captured in Afghanistan should be treated according to the Geneva Conventions' guidelines for prisoners of war, because Afghanistan (was) a Geneva Conventions High Contracting Party -- though not the unrecognized Taliban government.  (Presumably this ruling would apply to any al-Qaeda member captured in a nation that was a High Contracting Party to the Geneva Conventions.)

• Granting the Guantamano prisoners a POW stanting is interesting, because prisoners of war are not "criminals." and therefore are not entitled to legal representation or a hearing in court.  They are simply to remain in custody, well-treated, until the cessation of hostilities.  So this ruling would seemingly nullify the demands for trials of the detainees, which does not seem to be what the ACLU actually wanted.

• The Court ruled that conspiracy to commit terrorist acts does not violate the laws of war; therefore, the Administration has no grounds to try suspected terrorists in military tribunals as "war criminals."

• The Court rulings will simply encourage the Bush administration to appeal to Congress for legislation authorizing the trial of suspected terrorists as war criminals.  The current authorization to use military force that Congress granted to the President does not specifically address this issue.  If legislation giving the President those specific powers was in place, then presumably the Court woud not object.

It is important to list the Geneva Conventions' Article 3 guidelines for the treatment of prisoners:

[T]he following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Obviously the ACLU and anti-American groups will now feel even more empowered to use even the most trivial accusations made by Guantamamo prisoners as a reason to condemn the United States as a nation that routinely commits war crimes and human rights abuses.

And naturally, no one will demand that al-Qaeda must abide by the same rules.  They will be allowed to continue kidnapping, torturing, and murdering US soldiers and civilians while at the same time envoking the protections and rights of the Geneva Conventions -- under the authority of the US Supreme Court -- for themselves.

It's admirable for the United States to always want to be the good guys, to always want to take the high road and treat our enemies kindly, regardless of how they treat us.  But frankly I find such an uneven application of the law unsettling.

Of course the US could decide to fully enforce the Geneva Conventions itself:

• Non-uniformed combatants captured during battle on the soil of a nation that was a high contracting party to the Geneva Conventions could be tried and shot as spies. 

• Terrorists with direct ties to violations of Article 3  or Article 14 of the Geneva Conventions could be tried as war criminals in a military tribunal conducted by a high contracting party, and summarily executed.

Voila! - no more Guantanamo.  We'll see.

Obviously there are still a lot of unanswered questions, and the issue is far from being settled.

Great blog reaction roundups at WizBang, Michelle Malkin, Hot Air,  Hot Air (video), and Stop The ACLU.