High Court Rejects Detainee Tribunals

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By Charles Lane
Washington Post Staff Writer
Friday, June 30, 2006

The Supreme Court yesterday struck down the military commissions President Bush established to try suspected members of al-Qaeda, emphatically rejecting a signature Bush anti-terrorism measure and the broad assertion of executive power upon which the president had based it.

Brushing aside administration pleas not to second-guess the commander in chief during wartime, a five-justice majority ruled that the commissions, which were outlined by Bush in a military order on Nov. 13, 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions.

As a result, no military commission can try Salim Ahmed Hamdan, the former aide to Osama bin Laden whose case was before the justices, or anyone else, unless the president does one of two things he has resisted doing for more than four years: operate the commissions by the rules of regular military courts-martial, or ask Congress for specific permission to proceed differently.

"[I]n 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 in the majority opinion.

While the decision addressed only military commissions, legal analysts said its skeptical view of presidential power could be applied to other areas such as warrantless wiretapping, and that its invocation of the Geneva Conventions could pave the way for new legal claims by detainees held at the military facility in Guantanamo Bay, Cuba.

The ruling shifts the spotlight to Congress, whose members face reelection this fall and who have largely avoided the military commission issue since the Sept. 11, 2001, attacks because of its political uncertainties. The invitation for the president to turn to Congress was extended in a short concurring opinion by one of the justices in the majority, Stephen G. Breyer, who made it clear that the concerns of critics had penetrated deeply at the court.

"Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine -- through democratic means -- how best to do so," Breyer wrote.

"The Constitution places its faith in those democratic means," Breyer concluded. "Our Court today simply does the same."

Joining Stevens and Breyer in the majority were Justices Anthony M. Kennedy, David H. Souter and Ruth Bader Ginsburg.

Perhaps the only silver lining for the administration was that the decision did not affect the government's authority to keep terrorism suspects at Guantanamo Bay or elsewhere, a point Bush emphasized in his reaction. "We take the findings seriously," he said. "The American people need to know that this ruling, as I understand it, won't cause killers to be put out on the street."

But the court's action was clearly a setback for the White House. At the high court, its approach to the war on terrorism has suffered the broadest in a series of defeats, and the administration has been sent back to the drawing board in dealing with hundreds of suspected members of the Taliban and al-Qaeda -- at a time when international pressure is mounting to shut down Guantanamo Bay.

This is not the situation the president envisioned when he unveiled the military commissions as a tough-minded alternative to the civilian trials that the Clinton administration had used against terrorists. As first outlined in 2001, the commissions did not give defendants a presumption of innocence or guarantee a public trial.


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