The Supreme Court rules (pdf) in Hamdan v. Rumsfeld that “The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.’” Could have fooled me. Note that what made Bush’s military tribunals illegal under both US military law and the Geneva Conventions was that the defendant had no right to see the evidence against him.
There’s an interesting nugget in Thomas’s dissent: according to Bush, the current state of war began (and this matters legally because Hamdan is charged with acts occurring before 9/11) with a declaration of war by Al Qaida in August 1996.
Clarence Thomas, who used not to like high-tech lynchings, believes Hamdan can be tried by military tribunal because Al Qaida is analogous to “banditti, jayhawkers, guerillas, or any other unauthorized marauders.” It’s always nice to see the term jayhawker bandied about. Very Ken Burns-y. What it comes down to is Thomas’s belief that Hamdan can be tried by a military tribunal because he is presumed guilty of “conspiracy to massacre innocent civilians,” and we know this because the Bush administration has accused him of it. Quod erat demonstrandum. He adds that this decision will “sorely hamper the president’s ability to confront and defeat a new and deadly enemy.” Jayhawkers.
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