Thursday, June 29, 2006

US Supreme court deal blow to President Bush

The US Supreme Court has dealt a significant blow to the Bush administration by ruling, in Hamdan v. Rumsfeld, that Osama Bin Laden's alleged former chauffeur, who is detained in Guantanamo Bay, is entitled to the protection of article 3 of the Geneva Convention. The gist of it is that the "war on terror" does not give the President a blank check to label someone an "enemy combatant" and allow them to be tried and convicted without due process or through military tribunals/commissions (specially set up military war crimes trials) .

Marty Lederman at SCOTUS blog considers the decision to be hugely significant:

"As I predicted below, the Court held that Congress had, by statute, required that the commissions comply with the laws of war -- and held further that these commissions do not (for various reasons).

More importantly, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

If I'm right about this, it's enormously significant."

It may indeed be significant from a legal perspective but what is it actually going to mean in practice? The UK government's recent court defeats on anti terror measures might offer some insight?

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