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.
Yet the swift and certain punishment that supporters of the commissions expected has not materialized. The commissions quickly became mired in questions about what many saw as their lack of due process for defendants, and about the unilateral way in which Bush had created them.
Though the Defense Department has modified commission procedures in favor of the accused, military and civilian lawyers continue to object that defendants have no right to be present for the entire trial or to see all of the evidence against them. While 14 of the 490 terrorism suspects at Guantanamo Bay have been designated for trial, not a single case has been decided.
Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. dissented. Chief Justice John G. Roberts Jr. did not participate because he served on the three-judge appeals court panel whose ruling upholding the commissions was under review.
Scalia and Thomas read their dissents from the bench, a demonstration of their strong disapproval of the court's decision. Scalia argued that the court should have stayed out of the case because of a law Congress passed late last year circumscribing the appeal rights of military commission defendants.
Thomas said the majority "openly flouts our well-established duty to respect the Executive's judgment in matters of military operations and foreign affairs."
But center stage at yesterday's dramatic session belonged to Stevens, the 86-year-old World War II veteran who served as a Navy officer and a Supreme Court law clerk during the late 1940s, the last time the United States made extensive use of military commissions.
Though Stevens, the most liberal member of the court, has sometimes employed sharp rhetoric against the Bush administration in other cases, he read a summary of his 73-page opinion yesterday in a somber, seemingly deliberately low-key manner. The written version seemed designed to pick apart the Bush case for the commissions rather than denounce it.
Stevens ruled that the court had jurisdiction, rejecting the administration's argument that it had been ousted from the case by the Detainee Treatment Act of 2005. That law, even though it blocked habeas corpus petitions by Guantanamo Bay prisoners and shifted all appeals regarding military tribunals to the U.S. Court of Appeals for the District of Columbia Circuit, did not clearly state that it was meant to apply retroactively to Hamdan and others, Stevens wrote.
At the heart of Stevens's reasoning was the observation that an existing statute, the Uniform Code of Military Justice (UCMJ), already prescribes broad rules for military commissions, saying that their procedures must track those of courts-martial unless that is impractical.
But the administration's commissions, Stevens noted, do not meet this standard because they deprive defendants of protections that are basic to the courts-martial. The administration had cited special dangers involved in fighting terrorism, but Stevens concluded that "nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case."
Additionally, Common Article 3 of the Geneva Conventions, a provision that guarantees "minimum" protections for detainees, applies to the war against al-Qaeda, and is thus a part of the "law of war," Stevens wrote.
This means that terrorism suspects benefit from Common Article 3's prohibition against trials by anything other than "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
Because they were not properly authorized by Congress and do not match court-martial rules, Bush's military commissions do not qualify, Stevens wrote.
The court's opinion embraced a role for international humanitarian law that the administration has repeatedly rejected.
"The court seems to be saying that the war on terrorism at least in some regards is governed by Common Article 3," said Michael J. Glennon, a professor of international law at Tufts University. "That's an important step."
Legal analysts said that the court's opinion could lead to a challenge to the National Security Agency's domestic surveillance program, because wiretapping is already covered by a federal statute, the Foreign Intelligence Surveillance Act, just as military commissions were, in the court's view, covered by the UCMJ.
"The same reasoning would seem to apply to the NSA case, because the argument that the authorization to use military force enables them to ignore FISA goes down the drain," said Joseph P. Onek, senior counsel of the Constitution Project, a Washington-based civil liberties organization that opposed the commissions.