"Judicial review is alive and well, post-9/11," says Deborah Pearlstein of Human Rights First, on the Supreme Court's ruling in Hamdan v. Rumsfeld. The landmark decision, explained in this new Backgrounder, deals a significant blow to the White House's efforts to establish military commissions (Human Rights Watch) to try those it calls "unlawful combatants" at Guantanamo Bay. The Supreme Court argues in its 5-3 ruling that the proposed tribunals are in violation of both the U.S. Uniform Code of Military Justice and the Geneva Conventions, which protect the rights of detainees during wartime. More importantly, the ruling strikes at one of the Bush administration's core notions, that "the president alone can determine how to defend the country" (WashPost). Rather, President Bush will have to subject efforts to try detainees to Congressional oversight (NYT), a process that was set in motion almost immediately (BBC).
The decision marks the second time the Supreme Court has imposed limits on the powers of the presidency to execute the war on terror—the first being the 2004 Hamdi v. Rumsfeld decision, which limited the Bush administration's ability to detain American prisoners indefinitely without due process (CSMonitor). Some legal experts say the Hamdan decision may speed up the process of shutting down the U.S. facility at Guantanamo Bay, which human rights advocates have demanded. The ruling also casts doubt on the fate of its some 450 detainees.
President Bush said he will consult Congress on whether military tribunals "will be an avenue in which to give people their day in court" (AP). Andrew Cochran says the Supreme Court ruling may actually be a "huge political gift" for the Bush administration because Congress will help it rebuke the "judicial interference with national security." National Review editor Rich Lowry says the decision puts the Court "on a dangerous path" and sets the stage for more severe judicial interference with the "war on terror." Yet most experts say the verdict supports the view that the executive branch, whose approach to international law is shaped by Vice President Dick Cheney's Chief of Staff David Addington, oversteps its legal authority and largely disregards the laws of war. As one administration lawyer told the New Yorker: "It shows again that Addington overreached."