In a major rebuke to the Bush administration, the U.S. Supreme Court ruled Thursday that the president overstepped his power in ordering war-crimes trials for Guantanamo detainees without specific authority from Congress.
By a 5-to-3 vote, the court said that the procedures set up by the president violate both the Uniform Code of Military Justice and the laws of war set out in the Geneva Conventions.
In the immediate aftermath of the Sept. 11 attacks, President Bush set up procedures for war-crimes tribunals that were opposed internally by military lawyers and externally by civil libertarians.
The crunch came first in the case of Salim Ahmed Hamdan, Osama bin Laden's former driver. Hamdan was captured in Afghanistan in 2001, taken to Guantanamo Bay, Cuba, and became the first prisoner to face war-crimes charges. Charged with conspiracy, Hamdan's alleged crimes were that he was a bodyguard and helped transport weapons for bin Laden.
At the early stages of his trial, when the officer jurors were selected, Hamdan was excluded from the courtroom. His lawyers appealed this exclusion all the way to the Supreme Court, claiming that this and other procedures were an illegal and unauthorized concentration of power. In essence, defense lawyers argued, the executive branch was making the rules as well as enforcing them.
Five justices of the Supreme Court agreed. Writing for the court, Justice John Paul Stevens said that the Constitution gives the Congress, not the president, the authority to make rules concerning captured prisoners and the implementation of the laws of war.
Stevens said nothing in the court's precedents, nor in the post-Sept. 11 actions of Congress, is a sweeping authorization for the president to establish special military commissions whenever he deems necessary.
The president, Stevens wrote, is required both by the Uniform Code of Military Justice and the Geneva Conventions to use regularly constituted military courts, not special courts with special rules, to try accused war criminals.
The court said that military commissions have historically been conducted within the confines of the rules laid down under the Uniform Code of Military Justice -- the UCMJ. The glaring exception to this rule, the court noted, was the trial of Japanese General Tomoyuki Yamashita after World War II for failing to control his rampaging troops.
Partly because of the subsequent criticism of that trial, the court said, the UCMJ was expanded to cover those who, like Yamashita, are accused of war crimes. Thus, war crimes trials must be conducted under the same rules as courts martial, with some flexibility permitted to meet exigent circumstances.
In this case, said the court, nothing in the record demonstrates that it would be impracticable to apply court martial rules. That lack of necessity showing is particularly disturbing here, the court said, in light of the Bush rules allowing a prisoner to be convicted on the basis of evidence he has neither seen nor heard -- evidence that may be the result of torture.
For the Bush administration, Thursday's ruling was a stunning setback.
"The decision is extraordinary in not deferring during wartime to the president's interpretation of a treaty," said Jack Goldsmith, who served as an assistant attorney general in the Bush administration before becoming a professor at Harvard Law school. "There's never been a decision like this in our history."
Andrew McBride, who filed a brief in the Supreme Court on behalf of former Bush and Reagan attorneys general, says the decision takes the wind out of President Bush's broad assertion of executive power and limits his flexibility.
"I think we will see less people tried in the military tribunals," McBride says, "and more people sent to their countries of origin or dealt with in other ways, as the president attempts to empty Gitmo over the next two years."
Professor Goldsmith notes that under the court's decision, detainees can still be held indefinitely, without any trial.
"The perverse result of the decision is that the administration can continue to detain people on Guantanamo Bay merely by showing that they may be a member of al-Qaida," Goldsmith said. "And [it can] detain them until the end of the hostilities, which could go on for a very long time, if not forever."
But as retired Col. Scott Silliman observes, the ruling will give an additional boost to those detainees who have gone to federal court claiming that they are innocents being wrongly held. Silliman is the executive director of the Center on Law, Ethics and National Security at Duke University.
Silliman said: "This ruling today tells the president, 'If you are going to fight the war on terrorism and prosecute those you capture, you’ve got to comply not only with the law of the land, as Congress establishes it, but also international law -- the law of war -- which includes the Geneva Conventions."
Many in the military applauded the Hamdan ruling -- among them, Brig. Gen. James Cullen, who formerly served as chief judge of the U.S. Army Court of Criminal Appeals. He said the tribunal procedures set up by the Bush administration "smack of a kangaroo court."
"A kangaroo court will not meet the standards to which we are bound under the Geneva Conventions," Cullen said. "If our soldiers are captured under those circumstances, we don’t want them subjected to kangaroo courts."
As for President Bush, he was circumspect in his reaction to the ruling, saying the administration would comply.
"We will conform to the Supreme Court," the president said. "We'll analyze the decision. To the extent that the Congress has given any latitude to develop a way forward using military tribunals, we will work with them."
Some contend, however, that there is no need for new laws. Georgetown law professor represented Hamdan in the Supreme Court.
"Before embarking on some other five-year reckless experiment -- which is going to fail -- we should try our court-martial system," Katyal said. "It's already on the books and ready to go."
Just what the congressional appetite is for writing a new law is undetermined. Until now, the Congress has studiously avoided writing any sort of a new code for war-crimes trials.
Senate Republican Leader Bill Frist said Thursday that he would introduce legislation authorizing President Bush to create military commissions such as the ones that were struck down. And as Berkeley Law Professor John Yoo, who served in the Bush administration, observes, the issue has political potential.
"It seems clear the administration is going to make being aggressive on the war on terrorism a campaign issue for this fall," Yoo said. "I wouldn't be surprised if they were to float a bill reversing this decision right before the elections."
Today's Supreme Court decision was written by the court's only military veteran, Justice John Paul Stevens. It was joined by Justices Ruth Bader Ginsburg, David Souter, Stephen Breyer and Anthony Kennedy.
Dissenting were Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Scalia and Thomas each delivered impassioned dissents from the bench, castigating the court majority for substituting its judgment for the president's.
Chief Justice John Roberts did not participate in the decision because, as a lower court judge, he joined a decision upholding the military commission trials. That decision was reversed by Thursday's ruling.
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