High Court Rejects Bush's Claim That He Alone Sets Detainee Rules

By David G. Savage

June 30, 2006 12 AM PT

Times Staff Writer

WASHINGTON —

The Supreme Court declared Thursday that President Bush had overstepped his authority in the war against terrorism, ruling he does not have the power to set up special military trials at Guantanamo Bay without the approval of Congress.

In a 5-3 decision, the high court said the planned military tribunals lacked the basic standards of fairness required by the nation’s Uniform Code of Military Justice and by the Geneva Convention.

The ruling is the most sweeping legal defeat for the administration in the 5-year-old war on terrorism, and it rejects the president’s broad claim that the commander in chief can make the rules during an unconventional war.

Since 1929, the Geneva Convention has set rules for the conduct of wars and the treatment of prisoners, but Bush and his top advisors have maintained that it does not apply to suspected terrorists.

Still, the practical impact of Thursday’s decision may be limited. The court said terrorism suspects could be tried under the rules for courts-martial used by the American military or under new rules that could be passed by Congress.

The decision does not free any terrorism suspects, as the president noted, nor does it change the status of the approximately 450 detainees at the U.S. military detention facility at Guantanamo Bay, Cuba. Only 10 of them have been charged with war crimes.

The opinion was delivered by Justice John Paul Stevens, 86, the court’s last veteran of World War II. He set forth a view of the Constitution in wartime that stood in sharp contrast to that of the president and his lawyers.

The Constitution gives Congress the power to make the laws and set the rules for handling wartime captives, Stevens said. It says Congress shall “make rules concerning captures on land and water,” and also says Congress shall define the “offenses against the law of nations.”

Despite those words, the president contended that as commander in chief of the armed forces, he had the power to decide how suspected terrorists would be held, how they were to be treated, how they would be tried and what offenses amounted to war crimes.

But Justice Stephen G. Breyer, in a concurring opinion, said: “The court’s conclusion ultimately rests upon a single ground: Congress has not issued the executive a ‘blank check.’ ”

Guantanamo Bay has become the focal point of international criticism of Bush’s willingness to set aside established U.S. and international laws in the war against terrorism.

Civil libertarians hailed the ruling as a repudiation of that approach.

“The Supreme Court’s decision reaffirms the importance of one of this country’s founding principles: Trials conducted in the name of the United States must be full, fair and according to law,” said Deborah Pearlstein, a lawyer for Human Rights First.

The case decided Thursday began two months after the Sept. 11 attacks. In November 2001, the White House issued an executive order announcing the Pentagon would set up special military commissions to try Al Qaeda suspects. The president said that he did not need the approval of Congress and that the federal courts had no jurisdiction over the cases.

Moreover, the White House said the Geneva Convention did not apply to terrorists because this was not a conflict between nations and their armies.

It took four years for a challenge to that order to make its way to the Supreme Court. No one has been tried and convicted under the Bush administration’s rules, which were challenged by Salim Ahmed Hamdan, a onetime driver for Osama bin Laden who was charged with conspiring with Al Qaeda to kill Americans.

Hamdan, who was captured in Afghanistan in November 2001 and has been held at Guantanamo since June 2002, has admitted he was Bin Laden’s driver, but said he was a $200-a-month hired hand, not a terrorist.

In the sweeping decision, the justices rejected all of the key assertions made by the president and struck down the military commissions set up by the Pentagon. The court also cast doubt on whether the general charge of conspiracy that Hamdan faced was a war crime.

As Stevens noted, the Bush administration’s rules would have allowed the use of evidence obtained through coercion, and could have resulted in a defendant and his lawyer being excluded from the trial.

Bush said he planned to work with lawmakers to develop a process to deal with terrorism suspects.

“To the extent that there is latitude to work with the Congress to determine whether or not the military tribunals will be an avenue in which to give people their day in court, we will do so,” he said.

Two key Senate Republicans, Lindsey Graham of South Carolina and Arizona’s Jon Kyl, said they were disappointed with Thursday’s court decision. “However, we believe the problems cited by the court can and should be fixed,” they said in a joint statement. “We intend to pursue legislation ... granting the executive branch the authority to ensure that terrorists can be tried by competent military commissions.”

Some legal authorities suggested that applying traditional rules of evidence and due process in proceedings against the detainees could pose problems for prosecutors.

“They can come up with a viable system that would pass judicial scrutiny. But I am not sure that it is going to result in convictions,” said retired Rear Adm. John Hutson, a former judge advocate of the Navy and now dean of Franklin Pierce Law Center.

“It is going to be real hard to prosecute these guys,” Hutson said.

One part of the court’s decision suggests that the Geneva Convention protects captured terrorism suspects. Stevens said that Article 3 covered all people caught up in a conflict, even if they were not regular soldiers and not entitled to be treated as prisoners of war. Quoting that section, Stevens said these people must be tried “by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

The Geneva Convention does not define a “regularly constituted court,” but five justices agreed Thursday that such a tribunal must meet “the standards of our military justice system.” Besides Stevens and Breyer, Justices Anthony M. Kennedy, David H. Souter and Ruth Bader Ginsburg agreed on this holding in Hamdan vs. Rumsfeld.

Some legal experts said the ruling could extend the protections of the Geneva Convention to all people held in the war on terrorism, including Al Qaeda members being detained abroad in secret prisons.

But the court stopped well short of saying that suspected terrorists were entitled to be treated as prisoners of war.

Four justices -- Stevens, Breyer, Souter and Ginsburg -- said that they would have thrown out the charge against Hamdan because conspiracy was not a war crime. Stevens said a war crime required some evidence that the defendant took some “overt act,” beyond joining an organization.

Kennedy did not join in that opinion, leaving the court short of a majority on that issue.

Chief Justice John G. Roberts Jr. did not take part in the decision because he was on the U.S. Court of Appeals last year that considered Hamdan’s case and voted to uphold the president’s special military trials.

Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. dissented Thursday. Scalia and Thomas took the rare step of reading their dissents in the courtroom.

Scalia said the court had no authority to decide the case. In late December, Congress passed the Detainee Treatment Act and stripped federal judges of their power to hear claims from the Guantanamo Bay detainees.

Stevens and the majority said this provision applied only to new claims, not to pending cases like Hamdan’s.

In his dissent, Thomas said the court’s opinion “flouts our well-established duty to respect the executive’s judgment in matters of military operations and foreign affairs.”

Alito, who joined the court just before the case was heard, said he believed that the Pentagon’s rules were fair and that they complied with the standards set by military law and the Geneva Convention.

The court’s ruling was the second defeat for the administration in its handling of the prison at Guantanamo Bay.

Two years ago, the justices said the detainees were entitled to hearings to argue that they were being wrongly held. The Constitution says no one held by the United States “shall be deprived of life, liberty or property without due process of law.” Although the foreign detainees are not entitled to full trials, they are entitled to basic hearings, the court said in a 6-3 ruling in Rasul vs. Bush.

Like that ruling, Thursday’s decision does not require that these detainees be given the same trials due civilians, but only that they be tried under the military’s system of justice.

The Geneva Convention “obviously tolerates a great deal of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems,” Stevens said. “But requirements they are nonetheless. The commission that the president has convened to try Hamdan does not meet those requirements.”

Times staff writer Richard B. Schmitt contributed to this report.

(BEGIN TEXT OF INFOBOX)

Defendant rights

Although the Supreme Court ruled that Guantanamo Bay detainees may not be tried by military commissions, the justices said the suspected terrorists could be subject to the rules used in military courts-martial. Here is a comparison of defendant rights in those two systems and in federal court:

---

Presumption of innocence:

Federal courts: Presumed innocent.

Courts-martial: Presumed innocent.

Military commissions: Presumed innocent.

---

Right to remain silent

Federal courts: The 5th Amendment provides the right against self-incrimination.

Courts-martial: Members of the military can’t be compelled to confess; coerced confessions are not admissible.

Military commissions: Not provided; a rule against using coerced statements was adopted in March.

---

Freedom from unreasonable search and seizure

Federal courts: The 4th Amendment prohibits unreasonable search and seizure.

Courts-martial: Rules prohibit the use of evidence obtained through unlawful search or seizure.

Military commissions: Not provided. Private conversations between detainees and lawyers cannot be used.

---

Jury

Federal courts: The 6th Amendment provides for trial by jury.

Courts-martial: Rules prohibit the use of evidence obtained through unlawful search or seizure.

Military commissions: No jury. Trial is by a commission picked by the military. Detainees have challenged panel members.

---

Presence at trial

Federal courts: Defendants have the right to be present at every stage of the trial.

Courts-martial: The presence of the accused is required, unless the accused waives the right or engages in conduct justifying removal.

Military commissions: The accused shall be present to “the extent consistent with the need to protect classified information” and national security.

---

Right to counsel

Federal courts: Gideon vs. Wainright established the right to counsel under the 6th Amendment.

Courts-martial: Defendants have a right to military counsel at government expense and can also hire a civilian lawyer.

Military commissions: Defendants are provided a military lawyer. May hire a civilian attorney but the lawyer is not guaranteed access to classified evidence.

---

Right of Appeal

Federal courts: Federal convictions can be appealed to the Court of Appeals and then to the Supreme Court.

Courts-martial: Defendants may pursue military appeals. After military appeals, they may go to civilian court.

Military commissions: No right to appeal sentences shorter than 10 years. A review panel makes recommendations to the Defense secretary.

---

Sources: Department of Defense, Congressional Research Service

(BEGIN TEXT OF INFOBOX)

Voices at home:

“It is good news for the separation of powers. It is good news for the Constitution. It is good news for the Geneva Convention. It is bad news for the Bush administration.”

John Hutson

retired rear admiral and former judge advocate of the Navy, now dean of the Franklin Pierce Law Center

“The Supreme Court did not require these people to be let go. They simply said, ‘If you want to try them, Mr. President, you need to get Congress involved.’ I agree. I believe the president will follow the Supreme Court’s advice to come to Congress.”

Sen. Lindsey Graham (R-S.C.)

“This is a sweeping rejection of an over-broad theory of executive power.... The overriding debate has been whether we are in a situation where the executive needs to have unfettered power, or do basic checks and balances still apply. The court said today that checks and balances still apply, and on this issue you have clearly overreached.”

Harold Koh

dean of Yale Law School

“It’s now time for the Bush administration to close the Guantanamo prison, and either return the prisoners to their home countries or bring them to justice

in the United States.”

Rep. Jane Harman (D-Venice)

“We can’t allow terrorists to simply return home and restart their war plans. Guantanamo will remain open so long as it is in the national security

interests of the United States.”

Sen. John Cornyn (R-Texas)

“Guantanamo ... enables us to thwart future attacks. It serves as an important detention center but also an intelligence-gathering facility.”

Bryan Whitman

Pentagon spokesman

“To keep America safe ... I believe we should try terrorists only before military commissions, not in our civilian courts.”

Bill Frist (R-Tenn.)

Senate majority leader

“People -- whoever they are, wherever they are -- have to be treated within the

parameters of the Geneva Convention. I don’t see any way for the administration to argue otherwise.”

Michael Ratner

president of the Center for Constitutional Rights

--Times staff and Associated Press

(BEGIN TEXT OF INFOBOX)

Voices abroad:

“President Bush has said he wants to close down Guantanamo Bay. He should now move forward and close it down. The administration would be closing it not for political reasons, but because the rule of law prevails.”

Philippe Sands

international human rights lawyer in London

“It’s a huge victory for the men of Guantanamo, and it’s a powerful rebuke from the Supreme Court. This is clearly a demonstration that the men have a right to a fair trial....President Bush can no longer act like a king, above the law.”

Zachary Katznelson

senior counsel at London human rights group Reprieve, which defends 36 Guantanamo prisoners

“I think this ruling will make very little difference to people in the Middle East. Those who follow the U.S.-Middle East relations will say, ‘I told you so.’ Then they will say, ‘Thank God Americans have a legal system that can turn things around.’ ”

Professor Paul Rogers director of peace studies

at the University of Bradford in Britain

“I’m wondering what effect this ruling will have in the foreseeable future, because the United States has built two super-maximum security, state-of-the-art prisons over the past two years, and I don’t see that as a gesture of wanting to close the place down.”

Moazzam Begg

Guantanamo ex-inmate, interviewed by the BBC

“When the Iraqis and Americans got rid of Saddam and his

followers, we insisted they should be tried in Iraq. Why don’t they try these people in Afghanistan? .... This decision is a victory for democracy. It shows that nobody is above the law, not even President Bush himself.”

Jabbar Hasan

director of Iraqi Assn. in London

“Pakistan has always wanted its prisoners detained in Guantanamo Bay to be freed as soon as possible.”

Aftab Sherpao

Pakistani interior minister

“A triumph for humanity and democracy.... It is a disgrace for the American

administration. The world is asked to model after America, but by doing this they contradicted themselves.”

Mohamed Kharkhy

a Sunni Arab lawyer in Baghdad

--From Times Staff Writers

How they voted:

THE MAJORITY