The Supreme Court has ruled 5-3 that the Bush administration violated American law and the Geneva Convention (technically they’re the same thing) in its handling of detainees at Guantanamo Bay. In response the administration must either release the detainees, repatriate them at Guantanamo or try them in a legal manner.
In lieu of commentary I will repeat something that I said earlier:
Frankly I doubt that the government is ready or able to present a coherent answer to judge Walker’s questionnaire. This administration has a history of ducking legal oversight that stretches from removing JAG officers from the detainee treatment process to the Jose Padilla debacle to the basic mistrust of the FISA warrant application process that lies at the heart of this current eavesdropping scandal ( see here for more). They don’t think that the law will approve of what they do and they don’t have the nerve to change the law, so they cut the law out of decision making and they count on secrecy to keep it under wraps.
The Bush administration actually isn’t that hard to figure out. They love secrecy because they know that they are breaking the law. Part of that, probably a small part, comes from actual malicious intent but the much larger fraction probably just comes from the fact that they are not good enough at their job to do things right the first time. If you cannot get things right and you have too much self-regard to admit a mistake (that would look weak in front of the
terrorists French liberals press jackalopes) then you get the dysfunctional mess that we have now.
Unlike Marty Lederman I am not a lawyer or a SCOTUS expert. Read his analysis for more informed commentary (formatting his):
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.