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Hamdan Roundup


The Supreme Court just announced a 5-3 decision against the Bush adminstration in the Hamdan case. Right now, all the major papers are carrying the AP story from Gina Holland.

Here is the version from Reuters. And another from CNN.

UPDATE: Marty Lederman at SCOTUSblog: "The Court appears to have held that Common Article 3 of Geneva aplies to the conflict against Al Qaeda. That is the HUGE part of today's ruling."

UPDATE: Seems like Andy McCarthy's "pre-mortem" was on the money.

UPDATE: The Washington Post has now updated its page with a story by William Branigin calling the decision a "stunning rebuke to the Bush administration."

UPDATE: CNN has video of Jeffrey Toobin, Bob Franken on the decision.

UPDATE: Text of Hamdan decision in pdf format here.

UPDATE: Reuters - Ruling Won't Affect Guantanamo Inmates

UPDATE: From the Court's majority opinon, which included Stevens, Souter, Ginsburg, Breyer, and Kennedy:

For the reasons that follow, we conclude that the military commission convened to try Hamdan lacks power toproceed because its structure and procedures violate both the UCMJ and the Geneva Conventions. Four of us also conclude, see Part V, infra, that the offense with which Hamdan has been charged is not an "offens[e] that by . . . the law of war may be tried by military commissions."

UPDATE: From Scalia's dissent:

On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, "no court, justice, or judge" shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the Court today concludes that, on what it calls the statute's most natural reading, every "court, justice, or judge" before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised.

UPDATE: From Thomas's dissent:

Under either the correct, flexible approach to evaluating the adequacy of Hamdan's charge, or under the plurality's new, clear-statement approach, Hamdan has been charged with conduct constituting two distinct violations of the law of war cognizable before a military commission: membership in a war-criminal enterprise and conspiracy to commit war crimes. The charging section of the indictment alleges both that Hamdan "willfully and knowingly joined an enterprise of persons who shared a common criminal purpose," App. to Pet. for Cert. 65a, and that he "conspired and agreed with [al Qaeda] to commit . . . offenses triable by military commission," ibid.7

The common law of war establishes that Hamdan's willful and knowing membership in al Qaeda is a war crime chargeable before a military commission. Hamdan, a confirmed enemy combatant and member or affiliate of al Qaeda, has been charged with willfully and knowingly joining a group (al Qaeda) whose purpose is "to support violent attacks against property and nationals (both military and civilian) of the United States." Id., at 64a; 344 F. Supp. 2d, at 161. Moreover, the allegations specify that Hamdan joined and maintained his relationship with al Qaeda even though he "believed that Usama bin Laden and his associates were involved in the attacks on the U. S. Embassies in Kenya and Tazania in August 1998, the attack on the USS COLE in October 2000, and the attacks on the United States on September 11, 2001." App. to Pet. for Cert. 65a. These allegations, against a confirmed unlawful combatant, are alone sufficient to sustain the jurisdiction of Hamdan's military commission.

UPDATE: From Alito's dissent:

The holding of the Court, as I understand it, rests on the following reasoning. A military commission is lawful only if it is authorized by 10 U. S. C. §821; this provision permits the use of a commission to try "offenders or offenses" that "by statute or by the law of war may be tried by" sucha commission; because no statute provides that an offender such as petitioner or an offense such as the one with which he is charged may be tried by a military commission, he may be tried by military commission only if the trial is authorized by "the law of war"; the Geneva Conventions are part of the law of war; and Common Article 3 of the Conventions prohibits petitioner's trial because the commission before which he would be tried is not "a regularly constituted court," Third Geneva Convention, Art. 3, ¶1(d), Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3320, T. I. A. S. No. 3364. I disagree with this holding because petitioner's commission is "a regularly constituted court."

UPDATE: Joint statement by Sens. Graham & Kyl:

"We are disappointed with the Supreme Court's decision. However, we believe the problems cited by the Court can and should be fixed.

"It is inappropriate to try terrorists in civilian courts. It threatens our national security and places the safety of jurors in danger. For those reasons and others, we believe terrorists should be tried before military commissions.

"In his opinion, Justice Breyer set forth the path to a solution of this problem. He wrote, 'Nothing prevents the president from returning to Congress to seek the authority he believes necessary.'

"We intend to pursue legislation in the Senate granting the Executive Branch the authority to ensure that terrorists can be tried by competent military commissions. Working together, Congress and the administration can draft a fair, suitable, and constitutionally permissible tribunal statute."

UPDATE: Senator Russ Feingold statement:

The Supreme Court's decision concerning military commissions at Guantanamo Bay is a major rebuke to an Administration that has too often disregarded the rule of law. It is a testament to our system of government that the Supreme Court has stood up against this overreaching by the executive branch.

UPDATE: Senator Cornyn statement:

"This is a blockbuster decision, and it will take some time to determine the consequences of what the Court said today. But they've opened the door to a legislative remedy, and as Congress plays a key role in this debate, we'll work with the administration to reach a solution.

"We're not talking about simple criminals--these detainees include the most violent terrorists in the world. And let's not forget who we're talking about in this particular case: Hamdan was captured in Afghanistan and is charged with delivering weapons and ammunition to al Qaeda, providing logistical support to bin Laden's bodyguards and participating in weapons training.

"The Court does not call into question the U.S. government's power to detain terrorists while hostilities continue. This is critically important because we can't allow terrorists to simply return home and restart their war plans. Guantanamo will remain open so long as it is in the national security interests of the United States."

UPDATE: Bush to work with Congress over court concerns