SUPREME COURT

Military tribunals ruled illegal

 

McClatchy News Service

WASHINGTON -- The Supreme Court dealt the Bush administration a devastating legal loss in the war on terrorism Thursday, ruling that the president overstepped his constitutional authority by creating ad hoc military tribunals for prisoners at Guantánamo Bay, Cuba.

The ruling is the third high-court rebuke of the president's claim that he has nearly unlimited power to determine the fate of detainees captured in the war on terrorism. The decision throws plans for the 450 or so foreigners at the prison at the U.S. naval base into indefinite limbo.

The 5-3 decision, written by Justice John Paul Stevens with an important concurrence by Justice Anthony M. Kennedy, essentially said the tribunals violated U.S. law and the Geneva Conventions of 1949 because they didn't provide the safeguards that either civilian or military courts required.

The ruling overturned an appeals court judgment that the tribunals were lawful.

The case, Hamdan v. Rumsfeld, involves Salim Ahmed Hamdan, a 36-year-old Yemeni whom the government believes was Osama bin Laden's driver and bodyguard in Afghanistan. He's been in jail since 2002, when he was captured in Afghanistan and sent to Guantánamo.

"The military commission at issue lacks the power to proceed because its structure and procedures violate both the [Uniform Code of Military Justice] and the four Geneva Conventions signed in 1949, " Stevens wrote.

"Even assuming Hamdan is a dangerous individual . . . the executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment."

The justices pointed out that Congress could have authorized the president to conduct extemporaneous proceedings, but it didn't, neither in the Sept. 18, 2001, bill to authorize military force in response to the 9/11 terrorist attacks or in a 2005 law that prevented Guantánamo detainees from appealing their status to federal courts.

BUSH WILL COMPLY

President Bush said he would comply with the ruling and work with Congress to devise some form of tribunal that met the court's legal standard. He also said the ruling wouldn't derail his efforts to keep the nation safe.

"The American people need to know that this ruling, as I understand it, won't cause killers to be put out on the street, " he said. "I understand we're in a war on terror; that these people were picked up off of a battlefield; and I will protect the people and, at the same time, conform with the findings of the Supreme Court."

Senate Majority Leader Bill Frist, R-Tenn., said he would introduce legislation to authorize military commissions to try terrorist combatants after Congress returned from its July 4 recess.

"Since this issue so directly impacts our national security, I will pursue the earliest possible action in the United States Senate, " the senator said.

The Senate Armed Services Committee plans hearings on how to structure tribunals later this summer. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., introduced a bill Thursday that would define terms and processes.

Some legal experts, however, questioned whether cases involving Guantánamo detainees would hold up in courts governed by any U.S. legal code, civil or military.

"The government has a very difficult mountain to climb, " said Michael Ratner, the president of the Center for Constitutional Rights, which is involved in challenges to the detentions. "They're not going to be able to use evidence that has been coerced from detainees. What's the government going to have left for evidence?"

Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, said the court's ruling is "a constitutional tonic that is sorely needed if we are to counter terrorism effectively, efficiently and with American values." He said the justices had provided a "much-needed check on this administration's unilateral policies."

Stevens' and Kennedy's opinions relied heavily on the significance of constitutional restraints on executive power and the important role that the courts and Congress must play in that regard, even in times of war.

The ruling echoed two previous rulings on Bush's detention policies. In 2004, the court said the president had unlawfully named a U.S. citizen as an enemy combatant and was illegally detaining him without charges or trial. It also ruled that while Bush could detain foreigners as enemy combatants, he couldn't do so indefinitely or without trial.

Kennedy was explicit Thursday about the dangers that he thought the president's unilateral actions in the Hamdan case posed.

"Concentration of power puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution's three-part system is designed to avoid, " he wrote. "It is imperative, then, that when military tribunals are established, full and proper authority exists for the presidential directive."

Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer joined Stevens and Kennedy to form the court majority. Chief Justice John G. Roberts took no part in the case, because he had ruled on it as an appellate judge.

Justice Antonin Scalia dissented strongly, saying the court had no jurisdiction to hear the case. The 2005 law that prevented Guantánamo detainees from appealing their status in federal courts barred the justices from getting involved, he said.

Justice Clarence Thomas penned a nearly 50-page dissent, objecting to the court's decision to second-guess the president. He called the ruling "so antithetical to our constitutional structure that it simply cannot go unanswered."

Thomas read part of his dissent aloud from the bench, the first time he's done that in his 15 years at the high court.

Justice Samuel Alito wrote a dissent arguing that the tribunals were legal.

MORE IMPLICATIONS

The case may have implications far beyond the fate of the Guantánamo detainees.

In saying the Guantánamo proceedings were illegal, the justices relied, in part, on Common Article 3 of the Geneva Conventions, which calls for "regularly constituted" courts to handle cases involving detainees. Kennedy described the section as "binding law" in the war with al Qaeda because it's part of a treaty the Senate has ratified.

Article 3 prohibits torture and any "outrages upon human dignity, in particular, humiliating and degrading treatment, " language that could implicate the administration for authorizing aggressive interrogation techniques.

"The administration's conclusion that Common Article 3 does not apply . . . was the key linchpin to the entire edifice of legal maneuvers that led to water-boarding, hypothermia, degradation, etc., " Georgetown University law Professor Marty Lederman wrote Thursday on the legal Web log SCOTUSblog.

Miami Herald staff writers Carol Rosenberg in Guantánamo Bay, Cuba, and Lesley Clark in Washington, and McClatchy Washington correspondents Marisa Taylor, Drew Brown and Margaret Talev contributed to this report.

EXCERPTS FROM COURT RULING; COMMENTS OF OTHERS

Selected quotes follow from the Supreme Court's 5-3 ruling Thursday that the Bush administration exceeded its constitutional authority by creating military tribunals for prisoners at Guantánamo Bay, Cuba, as well as from others:

From the majority opinion by Justice John Paul Stevens: "The military commission at issue lacks the power to proceed because its structure and procedures violate both the [Uniform Code of Military Justice] and the four Geneva Conventions signed in 1949." "Even assuming [detainee Salim Ahmed] Hamdan is a dangerous individual . . . the executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment." From a concurring opinion by Justice Anthony M. Kennedy: "As presently structured, Hamdan's military commission exceeds the bounds Congress has placed on the president's authority. . . . Because Congress has prescribed these limits, Congress can change them."

President Bush: "To the extent that there is latitude to work with the Congress to determine whether or not the military tribunals will be an avenue in which to give people their day in court, we will do so. "The American people need to know that this ruling, as I understand it, won't cause killers to be put out on the street. . . . I'm not going to jeopardize the safety of the American people. . . I understand we're in a war on terror; that these people were picked up off of a battlefield; and I will protect the people and, at the same time, conform with the findings of the Supreme Court."

Sen. Russell Feingold, D-Wis., of the Senate Judiciary Committee: "The Supreme Court's decision concerning military commissions at Guantánamo Bay is a major rebuke to an administration that has too often disregarded the rule of law. It is a testament to our system of government that the Supreme Court has stood up against this overreaching by the executive branch."

Senate Majority Leader Bill Frist, R-Tenn., in a statement: " Congress should work with the president to update our laws on terrorist combatants to respond to the new threats of a post-9/11 world. Since this issue so directly impacts our national security, I will pursue the earliest possible action in the United States Senate."

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