U.S. Supreme Court Bars Bush's Military Tribunals (Update1)

June 29 (Bloomberg) -- The U.S. Supreme Court ruled that the Bush administration lacks authority to try Guantanamo Bay inmates before military tribunals in a ruling that sharply scales back presidential wartime powers.

The justices, voting 5-3, said Congress hadn't expressly authorized the commissions. The justices also said the structure and procedures of the tribunals violate both the Geneva Conventions and the Uniform Code of Military Justice.

The ruling is a major political and legal setback for President George W. Bush, scuttling plans to try three dozen Guantanamo inmates before tribunals. The ruling also boosts suits challenging the incarceration of hundreds of other detainees.

Today's ruling was a victory for Salim Ahmed Hamdan, a former driver for Osama bin Laden who is fighting a government charge of conspiracy.

``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,'' Justice John Paul Stevens wrote for the court.

The U.S. is holding 450 inmates at Guantanamo Bay in Cuba, most of them captured in Afghanistan during the 2001 war against the Taliban. Bush is facing increasing international pressure over Guantanamo in the aftermath of three inmate suicides earlier this month. The president has said on several occasions that he would like to close the prison.

Joining Stevens's wrote the court's majority opinion in Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer joined the entirety of the opinion, and Justice Anthony Kennedy joined the bulk of it.

Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented. Chief Justice John G. Roberts didn't take part in the case because he served on an appeals court panel that considered it.

The majority also rejected a Bush administration argument that a new federal law stripped the court of power to hear the case.

The case is Hamdan v. Rumsfeld, 05-184.

link

Just a note - you missed the part of the ruling where the Justices did say that the captives in Guantanamo could be kept in prison until the end of the conflict - which is in keeping with the Geneva Conventions. So now the prisoners are “officially” prisoners of war, and subject to the rights granted there, but that also means they can be held indefinitely without charges. So, it’s a slap to the administration about their plans to bring the captives to trial, but it now gives them further legal ground to hold those prisoners forever.

posted by right #54 at Think Progress

Hamdan Summary -- And HUGE News
Posted by Marty Lederman at 10:37 AM

(...)

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

If I'm right about this, it's enormously significant.

link

Cicago Tribune

Comment: According to the AP, "White House counselor Dan Bartlett said the administration's task now is mostly technical -- trying to determine how to design military tribunals that would pass muster under the decision. Republican senators said they would cooperate."

IOW, it's business as usual: the law doesn't apply to the party in charge.

Question: It's my understanding that Hamdan was the first Guantanamo prisoner charged by the Bush administration, in July 2003. My husband just asked me why Hamdan was chosen as the first. Anyone know?

Thanks.

--

"Turkeys voting for Thanksgiving"
[Ian Williams Asia Times 11/04/04]

What i see is that, for the criminals in the WH their own country's court is holding them culpable of war crimes...very significant for the international community to prosecute...at a later time of course.

At least Gonzales and Bush likely have a long long time to live, and so do I. My greatest wish before i die is to see them prosecuted for War Crimes and Crimes Against Humanity by the world. This decision brings that day ever closer. Thank you God.
"who would Jesus bomb?"

Bush May Turn Legal Setback on Guantanamo Into a Political Win

June 30 (Bloomberg) -- President George W. Bush, rebuked by the Supreme Court for his anti-terror policy, may try to use a major legal setback to win a political victory.

Bush, responding to yesterday's high court decision that using military commissions to try terrorist suspects is unlawful, said he would ask Congress for legal authority to operate the tribunals.

Senate Majority Leader Bill Frist, a Tennessee Republican, pledged to craft legislation addressing the court's ruling that tribunals weren't explicitly authorized by Congress and didn't adequately protect the rights of the accused. Democrats such as Senator Carl Levin of Michigan said they would cooperate.

Congress will give Bush ``a win because he was in his rights,'' said Senator Trent Lott, a Mississippi Republican. ``It could be a victory for him, and certainly the American people will be outraged again by the Supreme Court.''

The prison at the U.S. naval base at Guantanamo Bay, Cuba, where tribunal proceedings are held, has drawn international criticism since it opened in 2002, and Bush has repeatedly said he would like to close it. He said yesterday that the court ruling ``was the way forward'' and would allow the creation of ``a tribunal to hold people to account.''

Since the Sept. 11 attacks, Bush has evoked the threat of terrorism to win legislative battles and divide Democrats. In polls, Bush consistently gets high marks for his handling of national security even as a majority of Americans disapprove of his overall performance as president. In a Bloomberg/Los Angeles Times poll published today, 51 percent of respondents said they approve of the job Bush is doing on preventing terrorism, while 41 percent approve of his handling of the presidency.

`Strong Case'

Republican Senator James Talent of Missouri predicted yesterday that the high court's ruling will give Bush a boost. ``I think he's right on it,'' Talent said. Bush has ``made a strong case and people will support it.''

Still, the 5-3 court ruling is a blow to Bush's conduct of the war on terror, potentially reining in his claims of expanded presidential powers during wartime. If Congress fails to authorize tribunals, the court decision could pave the way for federal or military courts to handle the trials of some suspected terrorists. So far, the government has initiated proceedings against only 10 of the 750 detainees who have been held at Guantanamo.

Some Democrats left little doubt they would use the court ruling to question the presidential powers Bush invoked to justify several controversial decisions, including the military tribunals, secret domestic eavesdropping, monitoring of financial transactions and what Democrats said was an effort to scale back Congress's authority.

`Arrogance and Incompetence'

``For five years, the Bush-Cheney administration has violated fundamental American values, tarnished our standing in the world and hindered the partnerships we need with our allies,'' said Senator Patrick Leahy of Vermont, the senior Democrat on the Senate Judiciary Committee, in a statement. ``This arrogance and incompetence have delayed and weakened the handling of the war on terror, not because of any coherent strategic view it had, but because of its stubborn unilateralism and dangerous theory of unfettered power.''

Bush ordered the creation of military commissions to try terror suspects shortly after the Sept. 11 attacks. He said Congress's authorization to use military force in the war on terror gave the administration the legal justification for the tribunals.

Explicit Authorization

The Supreme Court said yesterday that the tribunals were unlawful because Congress hadn't expressly authorized Bush to establish them. One of the justices in the majority, Stephen Breyer, said, ``Nothing prevents the president from returning to Congress to seek the authority he believes necessary.''

Shortly after the ruling was announced, Republican lawmakers said they would offer legislation that would allow the tribunals to go forward. ``Working together, Congress and the administration can draft a fair, suitable and constitutionally permissible statute,'' Senators Lindsey Graham of South Carolina and Jon Kyl of Arizona said in a statement.

The justices also said the tribunals violate the 1949 Geneva Conventions governing the treatment of war prisoners and the Uniform Code of Military Justice, which guarantees such protections as the right to be present at trial. Lawyers for detainees said this may allow all of the 450 inmates currently being held at Guantanamo access to federal courts, which until now have refused to hear their cases.

U.S. Allies

The ruling may even give the Bush administration an opportunity to placate some U.S. allies by closing the prison, said Michael Greenberger, a law professor and director of the University of Maryland's Center for Health and Homeland Security in Baltimore.

``There will be two camps in the Bush administration,'' said Greenberger. ``One will be to try to use Congress to eviscerate what the court has done and one will say, `Look, Guantanamo is a public relations fiasco, let's use this as an excuse to close this down.'''

Douglas Kmiec, a former Justice Department official under Presidents Ronald Reagan and George H.W. Bush, said that while the decision gives Bush ``another international black eye,'' the president's political team ``will tell him that the American people are troubled by this opinion.''

Bush ``stepped up to the plate and did his duty and the court has now complicated it. Now it's time for Congress to resolve that complication,'' said Kmiec, a professor at Pepperdine University School of Law in Malibu, California. ``If they fail to do so, they'll be in default and they'll be held politically accountable for it.''

Geneva Conventions

Congress's task in seeking to authorize the tribunals may be complicated by the court's conclusions on the Geneva Conventions, which the U.S. has signed. Congress can't override U.S. treaty obligations, and lawmakers would have to square any new law with the court's ruling that because of the Geneva accords the tribunals may have to provide the accused the same rights they would receive under a court martial.

The Senate Armed Services Committee will hold hearings on the appropriate procedures for military commissions ``in preparation for the consideration in September of such legislation as may be required,'' the panel's Republican chairman, John Warner of Virginia, and its top Democrat, Levin, said in a statement.

Senator Arlen Specter, a Pennsylvania Republican, introduced a measure to set up military tribunals that he says would meet procedural requirements mandated by the Supreme Court. Specter, the chairman of the Judiciary Committee, scheduled a July 11 hearing to consider the legislation.

Indefinite detention ``has caused considerable angst,'' Specter said in a Senate floor speech yesterday. Still, ``we are in a war fighting terrorists'' and ``there are continuing dangers,'' he said. ``Until somebody has a better idea, they are going to be detained.''

The Court expressly declared that it was not questioning the government's power to hold Salim Ahmed Hamdan "for the duration of active hostilities" to prevent harm to innocent civilians. But, it said, "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."

Scotusblog

I interpret that to mean the Guantanmo inmates can be held until hostilities cease, which if troops remain stationed in Iraq, could be a very long time. Guards would not be able to subject their prisoners to torture or inhumane treatment. (Nothing changed there...torture is currently against the law)

Richard Samp of the Washington Legal Foundation commented on the SCOTUS decision.

As well as an overview of the SCOTUS decision.

The decision as to how to try the prisoners at Guantanamo will be decided by Congress.