Justice Stevens and the “War on Terror”

When Justice John Paul Stevens retires this summer he will have served longer than any Supreme Court Justice in history save one — William O. Douglas. In his decades on the court, Stevens has had a profound influence on several issues — including one of the central aspects of recent U.S. foreign policy: the "War on Terror".

Stevens has made a couple landmark decisions regarding alledged terrorist detainees from the wars in Afghanistan and Iraq. The first one, Rasul v. Bush, was decided in 2004. He wrote the majority opinion in the case, finding that foreigners held in Guantanamo Bay are under the jurisdiction of federal courts, saying, "They have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control." This meant that prisoners could now challenge their detainment through legal channels.

Two years later, in 2006, Stevens wrote the majority 5-3 decision in Hamdan v. Rumsfeld. The ruling curbed executive power by arguing that the government had to follow U.S. laws and the Geneva conventions when detaining prisoners of war. Moreover, because neither the president nor Congress has the authority to authorize military tribunals when they can be avoided, they are illegal in this case. When speaking about the use of military tribunals, Stevens argued:

The danger posed by international terrorists, while certainly severe, does not by itself justify dispensing with usual procedures.

Because the procedures adopted to try Hamdan do not comply with the uniformity requirement of Article 36(b), we conclude that the commission lacks power to proceed.

For similar reasons, the commission lacks power to proceed under the Geneva Conventions, which are part of the law of war under Article 21 of the UCMJ.

Common Article 3 of those conventions, which we hold applicable to this case, prohibits the passing of sentences without previous judgment by a regularly constituted court, affording all the judicial guarantees recognized as indispensable by civilized peoples."

With the legal questions surrounding Gitmo far from settled, Stevens’ absence will certainly be felt.