It’s an old saying that “justice delayed is justice denied”, but it can
hardly ever have been more true than for the prisoners at Guantanamo
Bay, Cuba, held in limbo for more than four years by the US military
while seemingly endless legal proceedings try to determine their status.

But the end moved a little closer overnight when the US supreme court ruled in Hamdan v Rumsfeld,
that trial of the prisoners by military commissions would be illegal.
The case did not challenge the prisoners’ confinement, only the
government’s proposed method of trying the small number who have
actually been charged with something. The court held that the
president’s power to create military commissions could only be
exercised in accordance with the laws of war, and that the proposed
commissions failed to comply with the US Uniform Code of Military
Justice and the Geneva Conventions.

The New York Times
described the decision as “a historic event” and “a sweeping and
categorical defeat for the Bush administration”. Speaking for the
majority, Justice John Paul Stevens stressed the binding nature of
international law:

Common Article 3 [of the Geneva Conventions] obviously
tolerates a great degree of flexibility in trying individuals captured
during armed conflict; its requirements are general ones, crafted to
accommodate a wide variety of legal systems. But requirements they are
nonetheless. The commission that the President has convened to try
Hamdan does not meet those requirements.”

The more general message of the decision is that President Bush’s
attempts to secure a conservative majority on the Supreme Court have so
far been unsuccessful. But he only needs one more vote. Chief Justice
John Roberts did not participate in yesterday’s decision because he had
already ruled at an earlier stage of the appeal, but there is no doubt
that he would have voted with the minority. So although the decision
was 5-3, in reality it was 5-4.

Stevens, who was appointed by President Ford, is easily the court’s
longest-serving justice. Originally a moderate conservative, he is now
seen as one of the more reliably liberal votes on the court. And at the
age of 86 he seems determined to hold on until after the next
presidential election, in the hope that a less extreme head of state
will be there to appoint his replacement.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey