Salim Hamdan, Osama’s driver: Why is this man smiling?

***latest update 1120am Eastern…opinions have been posted…flashback: A jihadi gets his day in court…***

***update: breaking…1014am Eastern…Ruling is delivered…5-3…”Bush overstepped authority”…Lyle Denniston at SCOTUS Blog: “The Supreme Court ruled on Thursday that Congress did not take away the Court’s authority to rule on the military commissions’ validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the “military commissions” illegal under both military justice law and the Geneva Convention.”***

***update II…1029am Eastern…first wire report…***

The Supreme Court ruled Thursday that President Bush overstepped his authority in creating military war crimes trials for Guantanamo Bay detainees, a rebuke to the administration and its aggressive anti-terror policies.

Justice John Paul Stevens wrote the opinion, which said the proposed trials were illegal under U.S. law and the Geneva Convention.

The case, one of the most significant involving presidential war powers cases since World War II, was brought by Guantanamo prisoner Salim Ahmed Hamdan, who was a driver for Osama bin Laden in Afghanistan.

The vote was split 5-3, with moderate Justice Anthony M. Kennedy joining the court’s liberal members in ruling against the Bush administration. Chief Justice John Roberts, named to the court last September by Bush, was sidelined in the case because as an appeals court judge he had backed the government over Hamdan.

Thursday’s ruling overturned that decision.

After the Sept. 11 attacks, Bush established special war crimes tribunals for trying prisoners held at the U.S. military base at Guantanamo Bay in Cuba.

Of about 450 prisoners at Guantanamo, only Hamdan and nine others face charges before a tribunal. Human rights groups have criticized the tribunals, formally called military commissions, for being fundamentally unfair.

Hamdan’s lawyers had challenged Bush’s power to create the tribunals and said he is covered by the Geneva Convention, and therefore rules governing U.S. courts-martial should be applied.

Now what? Bottom line from Andy McCarthy: al Qaeda gets Geneva Convention protections.

Allah tries to make sense of the ruling, quoting SCOTUS Blog:

The Court expressly declared that it was not questioning the government’s power to hold Salim Ahmed Hamdan “for the duration of active hostilities” to prevent harm to innocent civilians. But, it said, “in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”

So if they try him, they have to take him to federal court — but they don’t have to try him? What?

Three separate dissents from Scalia, Alito, and Thomas. Allah will have links.

***update III: Gitmo commander says ruling will have “negligible” impact on detention facility…***

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A ruling is expected today in Hamdan v. Rumsfeld. It’s the most important Supreme Court case not just of this session, but in the War on Terror. Reuters reports:

The U.S. Supreme Court is preparing a potential landmark ruling that could determine the fate of the military tribunals created by President George W. Bush to try Guantanamo prisoners for war crimes.

The ruling by the nation’s highest court, which is expected later this week, will be one of the most significant presidential war powers cases since World War Two and could determine whether the tribunals are lawful.

No one outside the court knows which day the ruling will come or how the justices will decide the myriad of issues in a challenge to the tribunals by Guantanamo prisoner Salim Ahmed Hamdan, who was Osama bin Laden’s driver in Afghanistan.

After the September 11 attacks, Bush established special war crimes tribunals for trying prisoners held at the U.S. military base at Guantanamo Bay in Cuba, where the U.S. government says three prisoners killed themselves about two weeks ago.

Of about 450 prisoners at Guantanamo, only Hamdan and nine others face charges before a tribunal. Human rights groups have criticized the tribunals, formally called military commissions, for being fundamentally unfair.

Hamdan’s lawyers are challenging Bush’s power to create the tribunals and said he is covered by Geneva Convention, and therefore rules governing U.S. courts-martial should be applied.

The ruling has been eagerly awaited by administration officials, who want to bring charges against more prisoners, and by groups like Human Rights Watch, which has called on Bush to close the Guantanamo prison camp.

“The Supreme Court could decide that the military commissions set up at Guantanamo were not lawfully established, that their rules violate the law or that the commissions are inappropriate for this set of detainees,” said Katherine Newell Bierman of Human Rights Watch.

“On the other hand, the court could allow the military commissions to proceed as established under the current rules,” she said.

Marty Lederman at SCOTUS Blog has a helpful, simplified overview of what to watch for in the decision and says keep your eyes on Justices Stevens and Kennedy:

There is little or no question about the constitutionality of the military commissions. (Although there is an outside possibility the Court will rule that the alien defendants are protected by the Due Process Clause (see footnote 15 of Rasul) and that the commissions fail to provide due process.)

Nor, in my view, is there any real question that Congress has as a general matter authorized the use of military commissions to try crimes against the laws of war. That was essentially the holding of cases such as Quirin and Yamashita, and subsequently Congress re-enacted 10 USC 821, without calling into question those decisions.

The questions in Hamdan are, instead, whether Congress has authorized the types of commissions that the President has created — i.e., whether the commissions, as presidentially authorized and as implemented, conform to statutory authority — and whether and to what extent these commissions violate any restrictions that the statutes expressly or implicitly impose.

The most important restriction is likely to be that the commissions must themselves comply with the laws of armed conflict (LOAC). (Several Justices pressed the SG on this point at oral argument, suggesting that if Congress authorized the military to convene trials for violations of the laws of war, surely Congress would have insisted that those trials themselves comply with the laws of war.)

And then the key question becomes what, exactly, the laws of armed conflict require with respect to such commissions, and whether these commissions meet those specifications. And in determining that question, most of the attention will likely be on Common Article 3 of the Geneva Conventions, which might apply here as a matter of treaty obligation (a question on which the DC Circuit split 2-1), and which in any event likely reflects the customary LOAC to which the commissions must adhere.

Mark Levin has a bad feeling about what may come down today. I’ve been hearing the same scuttlebutt from legal types in NY and Washington.

Stay tuned.

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Allah Pundit wonders if this will be Stevens’ last hurrah.

Andy McCarthy offers a “pre-mortem.”

Ruling in. Allah has more.

Via Howard Bashman, the oral argument transcript is here.

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Previous:

7/15/05: Gitmo tribunals upheld
McCarthy: Geneva and Savagery * Gonzales and the War * International Law Targets American Sovereignty
Paul Mirengoff analysis
11/05 Volokh on Justice Roberts’ recusal
Debunking another Gitmo myth