This just in! The Supreme Court ruled today that the Bush administration overstepped its bounds in instituting military tribunals for Guantánamo terror suspects (who were rounded up by civil authorities, not the military, and detained under civil law). Going even further, the Court said that Congress could not strip detainees of their rights of habeas corpus.

You'll recall that, in April, there were calls for Justice Scalia to recuse himself from the case, as he had made comments in a speech at the University of Freiburg in which he suggested that the Guantánamo detainees had no rights under the U.S. Constitution or international law.

Please read the court's opinion in Hamdan v. Rumsfeld, 05-184. The Court was divided along predictable lines, with The Usual Suspects (Scalia, Thomas, and newcomer Alito) siding with the government and everyone else siding With the Terrorists. Chief Justice Roberts properly recused himself from the case, as he had previously ruled on it when it was on appeal to the D.C. Circuit Court.

The Court was quite divided, with the majority issuing three concurring opinions in addition to the opinion of the court. All three dissenters each wrote separate dissenting opinions. Here were the court's findings:

1. The Court rejected the government's argument that, pursuant to the ludicrous Detainee Treatment Act of 2005, "no court ... shall have jurisdiction to hear or consider ... an application for ... habeas corpus filed by ... an alien detained ... at Guantanamo Bay,” and therefore, the Supreme Court did not have jurisdiction to rule on the Hamdan case. The law was clearly passed to prevent the Supreme Court from making this very ruling and ensuring that Guantánamo detainees would never, ever see the light of day. The one loophole in this law is that the Detainee Treatment Act did not apply to detainees who currently had a case on appeal, as was Hamdan's case.
2. The Court rejected the government's argument that Hamdan should be dismissed based on a case in which the Court previously ruled that federal courts should normally not intervene in military court martials. Kennedy apparently noted something that the government hoped the Court would overlook: the analogy "is inapt because Hamdan is not a service member." Oops!
3. The Court said -- in these words -- that "[t]he military commission at issue is not expressly authorized by any congressional Act." Woot! Now we have a precedent from the Supreme Court calling into question the specificity of Congress' authorization in 2001. While the Congressional resolution authorized the president to use any means within his power to stop terrorism, omission is not endorsement. In order for Congress to authorize the president to do something, it had to mention what it was they authorized him to do. In order for Congress to give the president a power, they must specifically mention the power. Giving the president some sort of broad, general power to do anything and then saying that that in itself was a justification is stupid and what the Court might call "over-broad." Expect this philosophy to be used in future court cases against the government, and rightly so.


4. The Court noted that, even if the military tribunals were authorized by the Authorization for the Use of Military Force, the structure and procedures of those tribunals "violate both the UCMJ and the four Geneva Conventions signed in 1949."

Whew! That's a lot of reasons why the Bush tribunals are illegal, and why the government's attempt to stop the Courts from regulating those tribunals ultimately failed in this case. So, what are the other justices saying?

• Justice Stevens, concurring with the opinion and joined by Justices Souter, Ginsburg, and Breyer, observe that the military tribunals are illegal because "[t]he Government has not charged Hamdan with an 'offense . . . that by the law of war may be tried by military commission.'" The government charged Hamdan with "conspiracy," which "has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions—the major treaties on the law of war." Thus it is not appropriate to try Hamdan in a military court for an offense that the military would not try in a military court.
• These three justices agree that the procedures of the military tribunal violate international treaties, noting, "[t]he procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by practical need, and thus fail to afford the requisite guarantees."

No doubt the Republican Spin Machine will label these five justices as traitors, terrorist-lovers, and "activist" judges for daring to suggest that President Bush doesn't have the broad power he asserted he did under the AUMF. Now, let's see the court take on some more Bush overreaches.