The semester is coming to a close here, so I don’t have enough time to properly blog the U.S. Supreme Court’s decision in the Hamdan (Guantanamo) case. This this interview (G) German USA expert Manfred Berg gets it about right. I’ll add a few comments here, based in large part on what I’ve read from the smart lawyers and professors at Balkinization and the Cato Institute.
The important thing to remember is that this is basically a case about the balance of power between the President and the Congress, not about international law. The Supreme Court held that the President had not been authorized by Congress to create special-purpose "military tribunals" for trying Guantanamo detainees. The detainees had no right to be in the courtroom when they were tried, and "secret" evidence (i.e. they are never told what it is) could be used against them. These trials violate the Geneva Conventions. Existing U.S. law tells the President he must obey the Geneva Conventions, and the President didn’t do so.
This leaves open the possibility that Congress could pass a law specifically authorizing President Bush to subject the Guantanamo detainees to trials that don’t provide Geneva-convention protections. Some very foolish Congressmembers have already announced plans to do so. This is a problem from an international perspective — because members of Congress, who concentrate mostly on domestic affairs, are harder to influence than the President, who has to travel around the world and hear lectures about Guantanamo.
Nevertheless, even if Congress passed such a law, I doubt it would be applied. As Manfred Berg notes, the U.S. has recently realized that is has rather severe image problems abroad. Passing a law which explicitly states that the U.S. intends to violate the Geneva Conventions would be met with protests worldwide, and for good reason. The law would also probably be overturned by the U.S. Supreme Court in a couple of years, since Congressional laws have to be consistent with treaties the U.S. has signed. The U.S. would then have to formally withdraw from the Geneva Conventions, which would have very exciting consequences indeed.
So what will happen to them? The likeliest outcome is that the U.S. will keep promising the close the camp, and begin shipping detainees back to home countries or third countries by twos or threes. Manfred Novak, the UN Special Rapporteur on Torture, advised Europe to consider granting most of them asylum, but I believe most European states will say: "No thanks, we’ve got our hands full with the disaffected Muslims we already have."
Some of the Guantanamo detainees might trials, but probably not many. And they won’t be normal civilian trials. According to the Supreme Court, international law specifies that a military court-martial — the same kind of justice that U.S. soldiers would get — would be OK under the Geneva Conventions. Even though a court-martial isn’t the equivalent of a full trial, there are still rules of evidence and due process, and you get your own defense attorney. According to most press reports, the evidence against 80-90% of these folks that would not hold up under ordinary Court rules.
Which is one of the main reasons Bush wanted to set up special "tribunals" for them in the first place, of course. I’ll leave you with a final thought. Professor Rosa Brooks here makes the argument that (1) subjecting detainees to "outrages upon personal dignity, in particular humiliating and degrading treatment" violates the Geneva Convention; (2) "there is zero doubt that techniques such as waterboarding, sexual humiliation, placing people in dog collars, forcing them into painful positions for extended periods, mock executions, etc. violate [the Geneva Conventions]"; (3) people who order treatment that violates the Geneva Conventions are war criminals, and can be tried as such in U.S. courts.
I’ll let you piece together where this line of reasoning is going.