George W. Bush: War criminal (but not, certainly, ex post facto)

“The Executive is bound to comply with the Rule of Law”

So says a majority of the Supreme Court Thursday, in the Salim Ahmed Hamdan case, in ruling that President Bush’s military tribunals are illegal, not only because they were not specifically authorized by Congress, but much more importantly, they are in violation of Geneva Convention international treaty obligations.

Indeed, Marty Lederman says this leaves the war crimes issue wide open, at least if Bush and staff try to continue to conduct any sort of military commission/tribunal, even if authorized by Congress, that puts our treatment of Hamdan or other al-Qaeda operatives in violation of Common Article 3 of Geneva. (Note: The Court did NOT say that al-Qaeda operatives, who are not fighting in an “international conflict,” are covered by ALL Geneva protections.

See this SCOTUSblog post for further insight on the Geneva Convention Common Article 3 and its immense importance to the Court’s ruling.

Would Bush try to get the U.S. to “deratify” Geneva? He would have to be even more deaf-eared to international ideals, and more morally obtuse, than anybody but the most rabid Bush-haters have claimed up to this point. That’s not to absolutely rule such an idea out, with a Senate that fell just one vote short of Constitutionally criminalizing flag burning.

For good measure, the Court also said that Congress never authorized military commissions of the type BushCo planned to use and therefore he did not have legal authority.

SCOTUSblog looks more at this angle.

The Court’s conclusion, (Justice Stephen) Breyer said, “ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.’

To follow up on that, Olin Kerr, who clerked for Justice Anthony Kennedy, who partially/mostly concurred in the majority, further discusses what this means for the (re)assertion of Congressional authority in war powers issues vis-à-vis the president.

From another SCOTUSblog post, we get this quote from Kennedy:

“This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of along tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority. Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis.”

Of course, Andrew Jackson said about Chief Justice John Marshall’s ruling that he did not have the power to relocate the Cherokee Indians: “(He) has made his ruling. Now let him enforce it.” Kennedy, Souter, Stevens, Breyer and Ginsburg are shouting into a power vacuum unless Congress — yes, even a GOP-controlled Congress — actually steps forward to exercise a claim to authority.

Read Jack Balkin for more on the Court’s chain of reasoning.