The Hamdan decision is obviously huge news. It’s good news for those of us who believe in republican government as opposed to elective monarchy. I have little to add to Marty Lederman’s expert commentary.
Lederman’s analysis suggests that the decision renders unnecessary my repeated suggestions that the entire group of torture-orderers and torture-order-enablers from Bush on down be shipped off to the Hague. If Geneva Common Article 3 is indeed incorporated into our domestic law, then the President and his cronies have conspired to commit war crimes as defined by the United States Code (18 U.S.C. 2441) statute, and could be tried right here at home and sentenced to life imprisonment or death, depending on whether it can be shown that one or more of their victims died.
They could not, however, be subjected to any of the horrors to which those victims have been subjected: no waterboarding, no beatings, no tiger cages. The better part of me doesn’t regret that. Alas, the better part of me isn’t all of me.
The worse part regrets especially that the three pro-torture Justices (or, to speak more precisely, Injustices) will never have a chance to experience it personally. But of course that’s precisely why we need the rule of law: to keep us from acting on our baser impulses.