Dispatches from the Creation Wars

The Supreme Court today handed Bush a major defeat on the question of how to handle the detainees at Gitmo. In the case of Hamdan v Rumsfeld, the Court ruled 5-4 that the President did not have the authority to try those detainees by military tribunals. The ruling was 5-3, with Chief Justice Roberts having to recuse himself because he was part of the DC Circuit Appeals Court panel whose ruling was under consideration. Kennedy joined with Ginsburg, Souter, Stevens and Breyer in the majority decision, with Alito, Thomas and Scalia in dissent.

It’s a very complex ruling that involves multiple statutory and constitutional questions. Among the statutory questions are whether the AUMF provides legal authority for such tribunals, whether the Uniform Code of Military Justice allows such tribunals for conspiracy charges, what the detainees’ legal status is under the Geneva Conventions, and much more. The constitutional questions involve separation of powers, the president’s constitutional powers as Commander in Chief, the proper role of the courts in such cases, and much more. This is going to take a while to digest and analyze.


  1. #1 Treban
    June 29, 2006

    I am waiting, breathlessly for the lefties and righties come out with their hype. Because this is not a victory for the left or the right – this is a victory for our country and our democracy.

  2. #2 kehrsam
    June 29, 2006

    Marty lederman
    and Jack Balkin
    going off the cuff on Hamden.

    Their analysis seems reasonable, but I’ll have to read the whole opinion and think about it.

  3. #3 kehrsam
    June 29, 2006

    In today’s case no one is paying attention to, Clark v Arizona, Justice Souter opines that mens rea is no longer required for the commission of a crime. At least that’s how I read the syllabus. The case is here:
    and Hamden here:

    You need Acrobat to view.

  4. #4 Ginger Yellow
    June 29, 2006

    Glenn Greenwald thinks that the majority’s legal reasoning rules out the administration’s main legal justification for the warrantless wiretapping, their distinctly un-strict-constructionist reading of the AUMF. http://glenngreenwald.blogspot.com/2006/06/significance-of-hamdan-v-rumsfeld.html

  5. #5 Russell
    June 29, 2006

    Treban, the political compass has shifted. I am a fiscally conservative civil libertarian. Ten years ago, that made me an independent who typically voted Republican.

    But the new GOP is a foul union of the religious right with those who worship presidential power. On today’s political compass, if you support checks and balances, if you cheer the kind of ruling that the Supreme Court handed down in Hamdan, if you care about civil liberties, you are by definition on the left, perhaps the extreme left, simply because today’s GOP is the chief enemy of all those things. Strange times.

  6. #6 Ginger Yellow
    June 30, 2006

    On today’s political compass, the left is by definition extreme.

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