- The Washington Times - Friday, June 30, 2006

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.”

Justice Thomas read parts of his dissent from the bench, something he has not done in 15 years on the high court.

“The judgment of the political branches that Hamdan, and others like him, must be held accountable before military commissions for their involvement with and membership in an unlawful organization dedicated to inflicting massive civilian casualties is supported by virtually every relevant authority,” he said.

“We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers.”

Justice Thomas said the court’s majority ruling meant that when U.S. military forces capture those “plotting terrorist atrocities” such as the bombing of the Khobar Towers in 1996 in Saudi Arabia and the USS Cole in 2000 at a Yemeni port and the attacks of September 11, they cannot be charged with any offense against the laws of war.

Sen. Patrick J. Leahy of Vermont, ranking Democrat on the Senate Judiciary Committee, signaled that he was willing to work with the president, but called the Supreme Court ruling “a triumph for our constitutional system of checks and balances.”

He commended the justices “for acting as a much-needed check on this administration’s unilateral policies that have clearly stretched the bounds of the president’s constitutional authority.”

Anthony D. Romero, executive director of the American Civil Liberties Union, which filed a friend-of-the-court brief in the case, said the decision “made clear that the executive branch does not have a blank check in the war on terror and may not run roughshod over the nation’s legal system.”

“Now that the Supreme Court has issued its decision, the president should make good on his promise and close Guantanamo,” Mr. Romero said.

Lt. Cmdr. Charles Swift, Hamdan’s Navy lawyer, told the Associated Press that he notified the Yemeni about the ruling by telephone.

“I think he was awe-struck that the court would rule for him and give a little man like him an equal chance. Where he’s from, that is not true,” Lt. Swift said.

In a joint statement, Republican Sens. Lindsey Graham of South Carolina and Jon Kyl of Arizona said they were “disappointed” with the ruling, although they think problems cited by the court “can and should be fixed.”

“It is inappropriate to try terrorists in civilian courts. It threatens our national security and places the safety of jurors in danger. For those reasons and others, we believe terrorists should be tried before military commissions,” they said.

Senate Majority Leader Bill Frist said legislation giving Mr. Bush the needed authority will be proposed, as Republicans noted that Justice Breyer wrote that nothing prevented the president from returning to Congress as a remedy.

About 450 people remain in custody at the Guantanamo facility, all of whom were taken into custody by U.S. forces in Afghanistan and Iraq. No one has been tried, but 10 have formally been charged.

After the U.S. invasion of Afghanistan in the wake of the September 11 attacks, Afghan forces captured Hamdan and turned him over to the U.S. military, which transported him to Guantanamo Bay. In 2003, Mr. Bush deemed Hamdan eligible for trial by military tribunal. A year later, he was charged with conspiracy “to commit … offenses triable by military commission.”

Hamdan filed a motion in U.S. District Court in Washington, saying the tribunal lacked the authority to try him. In November 2004, U.S. District Judge James Robertson stopped Hamdan’s trial, saying he could not be tried by a military commission unless a competent tribunal determined that he was not a prisoner of war under the Geneva Conventions.

Judge Robertson stopped the government from conducting any further military commission proceedings against Hamdan.

In July 2005, an appeals court panel said Geneva Conventions protections for prisoners of war did not apply to al Qaeda members, giving the Bush administration the green light for a military trial for Hamdan. The U.S. Circuit Court of Appeals for the D.C. Circuit panel said the joint resolution passed by Congress authorized the president to use military commissions to try enemy combatants, including Hamdan.

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