Justice Breyer stated in today’s Hamdan opinion, “Nothing prevents the President from returning to Congress to seek the authority he believes necessary.” Reacting to Breyer, Sen. Lindsey Graham (R-SC) said on Fox, “The court is telling us that tribunals would be okay if you have the Congress’ blessing.”

President Bush seems to be quickly embracing the idea.

As I understand, a senator has already been on TV — I haven’t seen it. I haven’t heard what he said, but they briefed me and said he wants to devise law in conformity with the case that would enable us to use a military tribunal to hold these people to account. And if that’s the case, we’ll work with him.

But if Bush truly wants to devise law in conformity with the opinion, the military commissions will need to undergo significant changes. Mere congressional authorization of the military commission that the Bush administration has conceived will not be enough to pass the legal test. Today’s Supreme Court opinion makes clear that a congressionally-authorized military commission would need to comply with Geneva Conventions, particularly Common Article 3. From the opinion:

Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
“¦
The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines “‘regularly constituted’” tribunals to include “ordinary military courts” and “definitely exclud[e] all special tribunals.
“¦
Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.

In other words, Bush’s military commissions need more than a rubber-stamp from Congress.

UPDATE: Glenn Greenwald notes that Congress could decide to abrogate the Geneva Convention or exempt its application with respect to the military commissions. It would be an extraordinary step, but with this Congress, anything is possible.

In a 5-3 decision (Chief Justice Roberts abstaining), the Supreme Court ruled that President Bush did not have authority to set up military tribunals at Guantanamo Bay, Cuba, finding the “military commissions” illegal under both military justice law and the Geneva Convention. The opinion of the Court, written by Justice John Paul Stevens, declares that “the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”

UPDATE I: The AP has more: “The ruling, a rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions.”

UPDATE II: SCOTUSBlog has the voting breakdown: “The main opinion [was] written by Justice John Paul Stevens. That opinion was supported in full by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter. Justice Anthony M. Kennedy wrote separately, in an opinion partly joined by Justices Breyer, Ginsburg and Souter…Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas, the dissenters, each wrote an opinion.” Read the opinions (pdf).

UPDATE III: From SCOTUSBlog: “The Court appears to have held that Common Article 3 of Geneva aplies to the conflict against Al Qaeda. That is the HUGE part of today’s ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons ‘shall in all circumstances be treated humanely,’ and that ‘[t]o this end,’ certain specified acts ‘are and shall remain prohibited at any time and in any place whatsoever’””including ‘cruel treatment and torture,’ and ‘outrages upon personal dignity, in particular humiliating and degrading treatment.’ This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. … This almost certainly means that the CIA’s interrogation regime is unlawful.”

UPDATE IV: “Justice Clarence Thomas wrote a strongly worded dissent and took the unusual step of reading part of it from the bench something he had never done before in his 15 years. He said the court’s decision would ‘sorely hamper the president’s ability to confront and defeat a new and deadly enemy.’” Justice Breyer responded in the opinion that Bush should consult with Congress to receive specific authority, and doing so, would strengthen the nation’s ability to deals with threats: Read more