Bush vs. the Constitution


FOR THE SECOND TIME IN TWO YEARS, the U.S. Supreme Court has rebuked President Bush for overreaching in the war on terror. On the dramatic closing day of its term, the court ruled that the administration illegally bypassed Congress and violated international law in establishing military commissions to try detainees at Guantanamo Bay in Cuba. The decision augurs poorly for the legality of Bush’s other constitutional shortcuts in the name of fighting terrorism, such as his warrantless wiretapping program.

In 2004, the court ruled that “enemy combatants,” including U.S. citizens and foreigners detained at the U.S. naval base at Guantanamo, could challenge their confinement in court. On Thursday, by a 5-3 vote, the justices said that the administration could not put Osama bin Laden’s onetime driver on trial before a military panel of the president’s creation.

Contrary to suggestions made by Bush before the decision, this ruling doesn’t provide the administration with any guidance about whether it should close Guantanamo, which has become a human rights embarrassment. Most of the more than 400 suspected terrorists there, languishing long past their usefulness to interrogators, have yet to be charged with a crime. The ruling simply prevents the Pentagon from trying Salim Ahmed Hamdan and other alleged enemy combatants before military commissions whose rules are devised solely by the administration.


Bush is probably correct that some detainees, if released, would “jeopardize the safety of the American people.” Those whose actions put them in that category should be identified and promptly charged. The remaining detainees should be released or repatriated. The sooner that sorting-out process takes place, the sooner Guantanamo can be shut down.

How -- and how quickly -- detainees are brought to trial now depends on Congress. Republican leaders have indicated that they intend to oblige the administration with legislation to rectify the flaws cited by the court. But instead of passing a measure that rubber-stamps the inadequate procedures laid down by the administration, the House and Senate should expeditiously authorize tribunals that satisfy the requirements of the Uniform Code of Military Justice and the Geneva Convention.

One of the most significant sections of Justice John Paul Stevens’ majority opinion declared that the conflict with Al Qaeda is covered by Common Article 3 of the Geneva Convention, which requires that detainees be judged by “a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” (Article 3 also casts doubt on the legality of aggressive interrogation techniques at Guantanamo because it prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment.”)

Stevens and three other justices in the majority went on to say that “a regularly constituted court” must allow a defendant to be present throughout the trial, something the Bush commission regulations didn’t guarantee. Justice Anthony M. Kennedy, while agreeing that Geneva applied, wouldn’t go that far. We would. Congress should include the right to be present in whatever rules it adopts.

Thursday’s decision included vociferous dissenting opinions by justices Antonin Scalia and Clarence Thomas, along with a more subdued dissent by Justice Samuel A. Alito Jr. Thomas, who recited a litany of terrorist atrocities, suggested that, in restricting Bush’s ability to try enemy combatants, his colleagues were hampering “the president’s ability to confront and defeat a new and deadly enemy.”

To which Justice Stephen G. Breyer, in a concurring opinion, responded: “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.” He’s right -- but only if Congress ensures that “a regularly constituted court” tries terrorist suspects.