Taking on GuantánamoThe Supreme Court voted 5-3 in the Hamdan case. Scalia, Thomas and Alito dissented, declaring that the Court had no jurisdiction in the case. Roberts recused himself, as he had already voted to reject Hamdan's appeal while sitting on a lower court. (Had he voted otherwise in the appelate decision, he undoubtedly would not be sitting on the Supreme Court today). In his dissent, Scalia cited a law passed in 2005 by the Republican Congress which was written specifically to derail this case:
...The whole purpose of setting up Guantánamo Bay is for torture. Why do this? Because you want to escape the rule of law. There is only one thing that you want to escape the rule of law to do, and that is to question people coercively—what some people call torture. Guantánamo and the military commissions are implements for breaking the law. Why build a prison here when there are plenty of prisons in Nebraska? Why is it, when we see photos of Abu Ghraib, we think that it is "exporting Guantánamo"? That it is the "Guantánamo method"? —Lieutenant Commander Charles Swift to the author, January 2007.
...The fog surrounding Guantánamo had seemed to lift on June 29, 2006, when Hamdan v. Rumsfeld—a case scholars have compared to Brown v. Board of Education in its ramifications for this country—was decided in the Supreme Court. The court struck down President Bush's military tribunals, declaring them illegal under long-established U.S. laws, the Geneva Conventions, and the Uniform Code of Military Justice. In a 73-page opinion, the court said that the administration had established the tribunals without congressional authorization and violated international law. At first, the decision seemed a complete victory for Swift and all the other lawyers in and out of the jag Corps who had been fighting what they considered to be Draconian conditions at Guantánamo.
...Suddenly, all the lawyers were talking at once as Gunn scribbled on the whiteboard at the front of the room. "We need to get out of the barrage of the media," one lawyer said. "P.R. is essential! We need to get the reporters on our side!" Another said, "More important is to get our future clients to a federal trial." All agreed that what was happening at Guantánamo was something straight out of the gulags of the Stalin era. "We have to build support from the N.G.O. [non-governmental organization] community and from the defendants' families," Swift said.
“[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.”I find it astounding that Scalia or any other judge would believe the Congress can strip the courts of their power to hear an appeal. If they can strip the Court of jurisdiction in this case, they can strip the Court of jurisdiction in any case. Every controversial bill passed in the future would simply have a "No Judicial Review" clause attached to it.