A Bad Day for Bush, and maybe waterboarding

The Supreme Court today ruled the Bush administration must do one of those things it is always extremely reluctant to do: obey the law. By a vote of 5-3, the Supremes said the administration can't proceed with its plans to try prisoners at Guantanamo Bay before military tribunals. Writing for the majority, John Paul Stevens (appointed by President Ford) declared the planned tribunals were illegal under both US law and the Geneva Conventions.

Over at SCOTUSblog (SCOTUS may sould like a skin disease, but actually it's short for Supreme Court Of The United States), Marty Lederman, who teaches at Georgetown University Law School, thinks this ruling may have much wider implications for the administration.

More importantly, the Court held that Common Article 3 of Geneva aplies 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.

Whether this prediction will hold true in cases in which Chief Justice Roberts participates-- he had to recuse himself from this case, since as an appeals court judge he had already ruled on it, siding with the administration (naturally, he didn't get where he is by choosing the rule of law over the president's wishes)-- remains to be seen. But at least for today, it is a hopeful sign.


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