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U.S. Supreme Court Bars Bush's Military Tribunals

Bloomberg
June 29, 2006

The U.S. Supreme Court ruled that President George W. Bush lacks authority to try GuantanamoBay inmates before military tribunals, a blow to the administration's anti-terrorism strategy that scales back executive wartime powers.

The justices, voting 5-3, said Congress hadn't expressly authorized the military commissions. The justices also said the tribunals violate the Geneva Conventions and the Uniform Code of Military Justice, which guarantees such protections as the right to be present at trial.

The ruling is a major political and legal setback for Bush, scuttling plans to try three dozen Guantanamo inmates before tribunals. The ruling also boosts suits challenging the incarceration of hundreds of other detainees. It's a victory for Salim Ahmed Hamdan, a former driver for Osama bin Laden accused of conspiracy.

``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,'' Justice John Paul Stevens wrote for the court.

Bush said he will comply with the decision and ask Congress to give an explicit authorization for tribunals, a possibility left open by today's ruling. The ruling ``won't cause killers to be put out on the street,'' the president said.

Senate Majority Leader Bill Frist, a Republican from Tennessee, said he will introduce legislation authorizing tribunals with ``appropriate due process procedures for trials of terrorist combatants.''

International Pressure

The U.S. is holding 450 inmates at GuantanamoBay in Cuba, most of them captured in Afghanistan during the 2001 war against the Taliban. Bush is facing increasing international pressure over Guantanamo in the aftermath of three inmate suicides earlier this month. The president has said on several occasions that he would like to close the prison.

Today's ruling also may limit the administration's options as it deals with accused terrorists who are in custody at places other than Guantanamo, including alleged Sept. 11 mastermind Khalid Sheikh Mohammed.

The administration argued that Congress approved the commissions in several statutes, including the Authorization for Use of Military Force enacted just after the Sept. 11 terrorist attacks. That's the same law Bush has cited as a legal defense for surveillance programs by the National Security Agency.

Limited Purposes

Stevens wrote that he found nothing in that law ``even hinting'' that Congress intended to expand the use of military tribunals or changing the Uniform Code of Military Justice. He said Congress has authorized tribunals only for limited purposes, as when cases need to be resolved on the battlefield. hostilities.''

``Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections,'' Stevens wrote.

He said the court's ruling didn't call into question ``the government's power to detain (Hamdan) for the duration of active Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer joined the entirety of the majority opinion. Justice Anthony Kennedy joined the bulk of it, providing the decisive vote to strike down the commissions.

``Trial by military commission raises separation-of-powers concerns of the highest order,'' Kennedy wrote in his opinion. He said the tribunals ``carry the risk that offenses will be defined, prosecuted and adjudicated by executive officials without independent review.''

Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented, with Thomas and Scalia taking the unusual step of reading a summary of their opinions from the bench.

Thomas Dissent

Thomas wrote that the court ``openly flouts our well- established duty to respect the executive's judgment in matters of military operations and foreign affairs.''

Chief Justice John G. Roberts didn't take part in the case because he served on an appeals court panel that considered it. Roberts joined a 3-0 decision by the U.S. Court of Appeals for the D.C. Circuit upholding the tribunals last year.

``President Bush didn't lose today. America and our founders won today,'' said Hamdan's lead Supreme Court lawyer, GeorgetownUniversity law professor Neal Katyal. ``Today's decision makes clear that the terrorists will never take away our people's faith in the courts.''

Some 300 Guantanamo inmates have cases pending in federal courts. Today's ruling means those inmates can press ahead with those cases and invoke their rights under the Geneva Conventions, said Thomas Wilner, who represents a group of Kuwaitis held at Guantanamo. The military has charged 10 of the detainees and was preparing to charge two dozen more.

Court Jurisdiction

The dispute marks the Supreme Court's first terrorism case since June 2004, when it said American citizens held as enemy combatants are entitled to a hearing. A second decision the same day let inmates at Guantanamo seek help in federal court. Bush has since added two members to the court, Roberts and Alito.

The administration argued that a law enacted in December stripped the Supreme Court of authority to hear Hamdan's case and barred any inmate challenge to the legality of the military tribunals. The law, the Detainee Treatment Act, says inmates at the Guantanamo prison can go to federal court only in limited circumstances.

The majority today said it retained jurisdiction to rule in Hamdan's case, concluding that Congress didn't intend to strip the court of jurisdiction. In his dissent, Scalia said the court ignored a ``plain directive'' from Congress barring Hamdan's case from going forward.

UCMJ Rights

Stevens faulted the tribunals for not giving inmates the full rights required by the Uniform Code of Military Justice. He pointed to tribunal rules permitting exclusion of the accused from the proceeding and allowing witness statements in place of sworn testimony.

On the Geneva Conventions question, the administration argued that inmates can't seek to enforce the four 1949 agreements in court. The government also contended that, because al-Qaeda hasn't signed the Geneva Conventions, its members can't claim protection.

Stevens rejected that reasoning, pointing to a provision in the Geneva Conventions that applies to conflicts that aren't between signatories. An official commentary to that provision says that ``the scope of the article must be as wide as possible.''

Four justices also agreed with Hamdan's contention that conspiracy can't be the basis for a tribunal prosecution because it isn't a crime under the laws of war. Kennedy said the court didn't need to reach that question.

Hamdan, who says he is about 37, worked for bin Laden in three stretches from 1996 to 2001, at least occasionally driving the al-Qaeda leader and delivering weapons. Hamdan's attorneys say he was a poor man who worked for bin Laden to earn money so that he could support his family.

The government says Hamdan conspired with bin Laden and other al-Qaeda leaders to wage war against the U.S. and attack civilians.

The case is Hamdan v. Rumsfeld, 05-184.

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