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Supreme Court rejects military tribunals

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

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"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."

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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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