When the D.C. Circuit Court of Appeals ruled on Hamdan v. Rumsfeld, it held that even if the Guantánamo detainee’s rights under the Geneva Conventions were being violated, an American court had no jurisdiction to intervene; violations of the Geneva Conventions were supposed to be handled through political and diplomatic channels, not through the courts. In response, today’s Supreme Court decision said:
We may assume…even that [the Geneva Conventions of 1949] would, absent some other provision of law, preclude Hamdan’s invocation of the Convention’s provisions as an independent source of law binding the Government’s actions and furnishing petitioner with any enforceable right. For, regardless of the nature of the rights conferred on Hamdan, they are, as the Government does not dispute, part of the law of war. And compliance with the law of war is the condition upon which the authority set forth in [Uniform Code of Military Justice] Article 21 is granted. (Hamdan v. Rumsfeld, 548 U.S. ___, at 64-65 [footnotes and internal citations omitted])
Observe how, one one level, Justice Stevens is agreeing with the appeals court. The courts’ authority to enforce the Geneva Conventions, he says, stems from the act of Congress incorporating the laws of war into the UCMJ, so he can skip over any question of whether the Conventions’ status as treaties gives the court any power. In other words, if Congress had passed a law that explicitly denied the protection of the Geneva Conventions to prisoners at Guantánamo, the Supreme Court would have probably found it constitutional.
We should be thankful that the Bush Administration didn’t try to push such a law through Congress; back when his approval ratings were above 80 percent, the President could have proposed a law requiring summary execution for all terrorists, and at least half the Democrats in Congress would have voted for it. But think of it from the point of view of Cheney and the other Nixon alumni. Why ask the legislature for permission to do something that, as far as you’re concerned, is part of the “inherent authority” of the executive? No sense in letting the war against al-Qaeda interfere with your plans to seize power from al-Congress…