Supreme Court rejects military tribunals

The high court's 5-to-3 ruling Thursday scuttled US plans for Guantánamo detainees.

By , Staff writer of The Christian Science Monitor

In a landmark decision restricting the president's powers during wartime, the US Supreme Court has dealt the Bush administration a severe blow in its push to prosecute terrorists in military tribunals.

The court ruled 5-to-3 Thursday that Mr. Bush acted outside his authority when he ordered Al Qaeda suspects to stand trial before these specially organized military commissions. The ruling said that the commission process at Guantánamo Bay, Cuba, could not proceed without violating US military law and provisions of the Geneva Conventions. "The commission lacks power to proceed," writes Justice John Paul Stevens for the court majority.

President Bush said he would honor the decision in the case called Hamdan v. Rumsfeld, but do it in a way that did not jeopardize the safety of Americans.

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"I want to find a way forward," Bush told reporters. "I would like there to be a way to return people from Guantánamo to their home countries, but some of these people need to be tried" in court.

Human-rights organizations praised the ruling as a step forward for the US, while administrtation supporters expressed concern.

"This is a very serious blow for the president," says Andrew McBride, a former federal prosecutor who filed a friend of the court brief in the case. "It takes a very narrow view of the president's authority."

Thomas Wilner, a Washington, D.C., lawyer who represents several detainees at Guantánamo, said the ruling shows that presidents must act in accord with other branches of government. "It really reaffirms what courts have said from the beginning of the republic. That at times of crisis, the executive is not exempt from following the law," Mr. Wilner says.

The case sharply split the high court with six separate opinions covering 177 pages.

"The (Uniform Code of Military Justice) conditions the president's use of military commissions on compliance not only with the American common law of war, but also with the rest of the UCMJ itself," Justice Stevens writes. "The procedures that the government has decreed will govern (detainee Salim Ahmed) Hamdan's trial by commission violate these laws."

Joining Justice Stevens' opinion were Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Justices Antonin Scalia, Clarence Thomas, and Samuel Alito dissented, saying the court lacked jurisdiction to take up the case. In a second dissent on the merits, Justice Thomas said the court owed the president "a heavy measure of deference."

"The court's evident belief that it is qualified to pass on the military necessity of the commander in chief's decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot got unanswered," Thomas writes.

Chief Justice John Roberts did not participate in the case because he was part of a three-judge federal appeals court panel that ruled on the same case in the Bush administration's favor last July.

On Thursday, the high court overturned that earlier ruling.

The decision comes in the case of Salim Ahmed Hamdan of Yemen, who is alleged to have worked as a driver and bodyguard for Osama bin Laden. Mr. Hamdan is one of 10 detainees at Guantánamo facing war crimes trials before a military commission.

Defense officials say 65 more detainees are under consideration for commission trials.

Overall, there are some 450 detainees at the controversial detention facility. US allies in Europe and the UN's Committee Against Torture have urged the US to close the detention camp. Critics say harsh treatment of detainees at the camp has tarnished America's image as a champion of international human rights.

Supporters of the camp say it is necessary to facilitate intelligence gathering and that without military commissions many "enemy combatants" could not be prosecuted. Evidence against some of them was obtained through sensitive intelligence operations and using methods that likely violate constitutional protections, legal analysts say.

The Supreme Court ruling does not address whether Guantanámo should remain open or shut down. Instead, it focuses on the process for holding commission trials established by the president in the aftermath of the 9/11 terror attacks.

Lawyers working on Hamdan's behalf had charged that President Bush violated US and international law in ordering specially formulated commission trials at Guantánamo.

The Supreme Court agreed.

"It bears emphasizing that Hamdan does not challenge, and we do not today address, the government's power to detain him for the duration of active hostilities," Stevens writes. "But 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."

The case was being closely watched because it required the justices to confront the fundamental constitutional tension between presidential, congressional, and judicial power during times of national peril.

In reaching their decision, the majority justices said provisions within the Uniform Code of Military Justice – rules for conducting trials and other judicial matters within the US armed forces – bar the president from establishing military commissions with fewer procedural safeguards than are afforded to American soldiers charged with crimes.

At the same time the majority justices adopted a narrow view of the Congress's 2001 Authorization for the Use of Military Force. The administration had argued that the AUMF authorized more than just military operations, it also authorized military detentions and special military trials.

The majority justices did not rule that the president was unable to conduct military commission trials, only that the procedures set out for those trials did not comply with US and international law.

The court ruled that the procedures violated a portion of the Geneva Conventions. The ruling invalidates a presidential determination that Al Qaeda suspects by virtue of their terrorist activities are not covered by the Geneva accords.

"There is at least one provision of the Geneva Conventions that applies here," Stevens writes, referring to Common Article 3 of the conventions which appears in all four of the accords.

He quotes one part of the accords as prohibiting: "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Mr. McBride called this part of the court's ruling "startling."

He adds: "Given the strictures of Common Article 3, it's just outrageous to say that a terrorist organization whose sole purpose is to violate the laws of war should be given the protection of the Geneva Conventions."

In addition, the court said its review of the matter was not preempted by passage in December of the Detainee Treatment Act. The DTA bars federal courts from hearing cases filed by detainees at Guantánamo Bay, but permits appeals to the federal appeals court in Washington, D.C. The Justices said the law did not apply to pending cases like Hamdan's.

Paul Kamenar of the Washington Legal Foundation said the ruling will not necessary end the commission process at Guantánmo. "The court struck down the military tribunals in terms of their procedural defects," he says. "The Bush administration can fix that by reinstituting the procedures that the court indicates lacked safeguards."

David Remes, a Washington, D.C., lawyer representing 17 detainees at Guantánamo, says the decision has broader implications. "It repudiates the broad assertion of unilateral power by the president to take any action that he considers to be justified in the name of fighting terrorism," he says.

Mr. Remes adds, "This was a case about presidential power – the power to break free from our system of checks and balances, the power to declare the law, the power to act as judge and jury and prosecutor and rulemaker. He is not a king. That is the meaning of this decision."

The decision in Hamdan v. Rumsfeld stems from an attempt by military prosecutors to try Hamdan for allegedly conspiring to commit terrorism. Prosecutors at the terrorism prison camp at Guantanámo Bay said Hamdan was a member of Al Qaeda who served as Mr. bin Laden's personal driver. He helped deliver weapons to other Al Qaeda members and was trained in the use of rifles, handguns, and machine guns at the group's Al-Farouq camp in Afghanistan, according to commission documents.

Defense lawyers say Hamdan was just a hired driver who was captured by Afghan forces while trying to return to his family. In addition to arguing that their client had not engaged in terrorism, the lawyers also attacked the legality of the military commission process.

Hamdan's trial was halted in November 2004 when a federal judge in Washington, D.C., ruled that Hamdan's trial by military commission violated US and international law. The US Court of Appeals for the District of Columbia Circuit reversed that decision, ruling in the Bush administration's favor last July. In November, the Supreme Court agreed to take up Hamdan's appeal.

Staff writer Linda Feldmann contributed to this report.

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