Supreme Court III -- Guantanamo: Justice Stevens throws up a bulwark for democracy

By Nancy Jane Moore

In a long and complex ruling, Justice Stevens, joined by Justices Ginsburg, Breyer, Souter and Kennedy, makes it clear that the U.S. has to provide a fair process to the detainees held at Guantanamo. The military commission set up to "try" Salim Ahmed Hamden violates the Uniform Code of Military Justice and the Geneva Conventions, Stevens says.

This is a strong ruling and should have an impact beyond the scope of those held as "enemy combatants." It's a blow for our Constitution, for our goal to provide fair trials, not kangaroo courts.

Justice Stevens and all of the others save Justice Kennedy would go farther -- they contend the charges against Hamden are not crimes of war and therefore aren't subject to military commissions. While that's only a plurality, and therefore not binding, I would not assume that Justice Kennedy completely dismisses that argument. From a quick look at his opinion, I suspect he didn't think the issue needed to be decided. (This is a common, and often maddening, feature of the Supreme Court -- declining to address the question everyone really wants answered.) I certainly can't tell from reading his opinion which way he would decide the issue.

The remaining justices are firmly on the other side. While Chief Justice Roberts did not sit in this case -- since he was involved in a lower court ruling on it -- he sided with the government at that point. I don't hold out much hope that Justice Stevens's eloquence has changed his mind.

This is another very long set of opinions -- 185 pages -- but it's really valuable to take the time to read it. In this day and age, when the Bush administration abuses the Constitution at every opportunity and then comes up with tortured legal reasons why its actions are legal, we all need to become scholars of constitutional law. The pdf file is here.