Supreme Court has ruled Against Tribunals

Breaking news, CNN is saying the Supremes have ruled against the Government in the case of that fellow who was OBL’s driver.

Details to follow!

Here’s the news in the New York Times.

For once, some judges who think the Bill of Rights actually means something.

The big question now, is how will the administration choose to ignore the ruling?

My vote is for the fingers-in-ears-la-la-la-la-la-i-can’t-hear-you filing. Followed by a writ of nyah-nyah-nyah whatja gonna do about it.

I have not yet read the links. How many Justices hate America?

5-3 with Roberts abstaining due to his previous work on the case. I’ll try to get the specifics, but at the moment, I’ll guess at least Thomas and Alito in the minority.

Justice John Paul Stevens wrote the opinion, Kennedy joined him.
Justice Clarence Thomas wrote a strongly worded dissent.
I’ll go all in and guess the third is Scalia.

Justice Anthony Kennedy joined John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter in the majority. Antonin Scalia, Clarence Thomas and Samuel Alito dissented. Chief Justice John G. Roberts did not participate in the decision.

I’ve read the syllabus and skimmed the other opinions. There are six opinions written, breaking down more or less like this:

Opinion of the Court (Stevens, joined by Ginsburg, Souter, and Breyer, and by Kennedy, except as indicated): (1) Close examination of the language of the Detainee Treatment Act of 2005 (DTA) shows that it does not deprive the Supreme Court of jurisdiction ; (2) the UCMJ provision permitting military tribunals does requires them to comply with the law of war and conform, to the extent possible, with procedure in courts martial; (3) the tribunals established, which permit some evidence to be given with the accused and his counsel excluded, do not comply with the law of war and ordinary court martial procedures because they do not permit the accused to be confronted with the evidence against him; and (4) [not joined by Kennedy] the crime of conspiracy which Hamdan was charged with is not a propery criminal charge under the law of war.

Breyer (joined by Kennedy, Souter, Ginsburg): short note that the Court’s opinion means that the President does not have a “blank check” to act where Congress has set out rules. Instead, under the democratic scheme of the Constitution, the President should have consulted with Congress.

Kennedy (joined in part by Souter, Ginsburg & Breyer): (1) trial by military commission raises significant separation of powers issues, and (2) [not joined by others] given that the military commissions are unauthorized by Congress, it is unnecessary to decide whether conspiracy was a proper charge against Hamdan.

Scalia (joined by Thomas and Alito): Under the DTA, the Court has no jurisdiction to consider the appeal, and even if it did, the Court should not exercise jurisdiction in its equitable discretion.

Thomas (joined by Scalia and in part by Alito): Commissions were proper under history, law of war, and Geneva Convention [Alito finding it unnecessary to reach some of his conclusions].

Alito (joined by Thomas and Scalia): Commission is a regularly constituted court permissible under Geneva Convention.