Thursday, July 20, 2006

Hamdan v. Rumsfeld

So I know it's been a few weeks since this case came down but I have to say that it's pretty significant. The Supremes held that the President does not have the authority to establish military commissions as he has in Guantanamo without Congressional authorization and that (maybe only 4 here, I don't think Kennedy joined in this part) Common Article 3 of the Geneva Conventions Apply to persons detained in the war on terror and with Al-Qaeda, despite the fact that the latter is not a high contracting party. Pretty amazing stuff.

The implication of the Geneva Conventions is also interesting, because another portion of CA 3 prohibits torture. If the portion prohibiting torture also conveys an individual right to is enforcement, what would the remedy be? Would evidence obtained through torture be supressed, as evidence obtained in violation of the Fourth Amendment? If the courts-martial or whatever the president comes up with to try the Guantanamo detainees post-Hamdan allows for the admittance of evidence obtained through torture, would the Supremes still uphold the enforceability of CA3? Would they have to per stare decisis?

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