Maybe Guantanamo isn’t so legal after all.

Sarah Royce

The recent Supreme Court ruling on the Bush administration’s military commissions has the potential to put a serious damper on further war plans. In a 5-3 decision in Hamdan v. Rumsfeld – Chief Justice John Roberts recused himself, having previously ruled on the case in a lower court – the court ruled that the military commissions conceived for prisoners held at Guantanamo Bay by the Bush administration were unconstitutional. Not only did the court find them in violation of the Uniform Code of Military Justice, but also the Geneva Convention, which it declared to be part of America’s laws of war. The majority opinion, echoing a previous decision from two years earlier, deemed the president did not have a “blank check” to carry out any policies he wished.

The implications of this ruling are a slap in the face to the Bush administration’s logic about enemy combatants in the war against terrorism. The administration has held that the Geneva Convention do not specifically apply due to the fact that the terrorists held are not imprisoned on U.S. soil and because they are not soldiers in any state army. The court rightfully concluded such reasoning is flawed and illegal.

The Geneva Accords comprise an international treaty signed by America after World War II. According to Article Six of the U.S. Constitution, any agreements and treaties entered into by the nation and approved by the Senate “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

In addition, the Court ruled that the conspiracy charge against the plaintiff – Salim Ahmed Hamdan, one of Osama Bin Laden’s drivers and bodyguards – is not a war crime, regardless of the endless rationalizing and fear tactics that administration officials still spew.

Still, it’s unlikely that Hamdan or any other detainee at Guantanamo will be released. The court did not invalidate the use of Guantanamo as a prison, nor did it demand the release of all prisoners. Rather, the prisoners still held there must now be tried in military tribunals or by some other process devised by Congress.

We maintain that the proposed International Criminal Court would be the best place to try and convict international terrorists who do not fight for a particular country’s army. Yet, this being impossible under the stubborn ignorance of this administration, the next best thing would be military tribunals run in accordance with the Geneva Convention and other prevailing international statutes.

The administration and its supporters, including Supreme Court Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice Roberts, who all support the administration’s stance, have often contended that the Constitution allows the president to conduct the war at his own discretion, by authority granted to him as commander in chief. The majority of the court, however, rejects such “reasoning,” giving life to the concept of checks and balances against all odds.

Since Sept. 11, the president has waged the war against terrorism by his rules. The Supreme Court, upholding the values of the Constitution, has sent clear message to the administration. Even in war, the president’s power is never absolute and he must still submit to constitutional checks and balances. It now becomes Congress’s responsibility to devise a fair process and not simply grant the president the dangerous authority the court denied him. Forgive us if we don’t hold our breaths.

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