High court throws out Gitmo tribunal

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President Bush was dealt a legal setback in his wartime powers yesterday when the Supreme Court said in a 5-3 decision that he lacked authority to try prisoners at Guantanamo Bay in Cuba before a specially created military tribunal.

Justice John Paul Stevens, writing for the majority, said a pending military tribunal for Yemeni national Salim Ahmed Hamdan, chauffeur to al Qaeda leader Osama bin Laden, could not proceed because its structure and procedures violated the Uniform Code of Military Justice and four Geneva Conventions signed in 1949.

Justice Stevens — joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer for the entirety of the opinion and Justice Anthony M. Kennedy for most of it — said that Congress had not given Mr. Bush the power to create the tribunal and that it provided lesser legal protections than already established courts-martial rules.

"It is not evident why the danger posed by international terrorism, considerable though it is, should require, in the case of Hamdan's trial, any variance from the courts-martial rules," he said.

Mr. Bush, after receiving what he called a "drive-by" briefing of the court's decision, said he would ask Congress for approval to try terrorism suspects before military tribunals. Republican leaders in Congress said they will propose such legislation after the July Fourth break.

"The American people need to know that the ruling, as I understand it, won't cause killers to be put out on the street," Mr. Bush said.

Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. dissented. Chief Justice John G. Roberts Jr. recused himself from the case because he served on the U.S. Court on Appeals panel for the D.C. Circuit that in July 2005 unanimously upheld Mr. Bush's right to use military commissions to try enemy combatants, including Hamdan.

Justice Scalia, writing the minority opinion, said Congress enacted the Detainee Treatment Act on Dec. 30 that "unambiguously provides" that no court, justice or judge has the jurisdiction to consider a petition on whether Guantanamo detainees were imprisoned lawfully and whether they should be released from custody.

"Notwithstanding this plain directive, the court today concludes that ... every 'court, justice or judge' before whom such a habeas application was pending on Dec. 30 has jurisdiction to hear, consider and render judgment on it," Justice Scalia said. "This conclusion is patently erroneous."

In his dissent, Justice Thomas said the Supreme Court lacked jurisdiction to entertain Hamdan's claim, arguing that in doing so, it "openly flouts our well-established duty to respect the executive's judgment in matters of military operations and foreign affairs."