WASHINGTON—The Supreme Court dealt the Bush administration a devastating legal loss in the war on terrorism Thursday, ruling that the president overstepped his constitutional authority by creating ad hoc military tribunals for prisoners at Guantanamo Bay, Cuba.
The ruling is the third high-court rebuke of the president's claim that he has nearly unlimited power to determine the fate of detainees captured in the war on terrorism. The decision throws plans for the 450 or so foreigners at the prison at the U.S. naval base into indefinite limbo.
The 5-3 decision, written by Justice John Paul Stevens with an important concurrence by Justice Anthony M. Kennedy, essentially said the tribunals violated U.S. law and the Geneva Conventions of 1949 because they didn't provide the safeguards that either civilian or military courts required.
The ruling overturned an appeals court judgment that the tribunals were lawful. The case, Hamdan v. Rumsfeld, involves Salim Ahmed Hamdan, a 36-year-old Yemeni whom the government believes was Osama bin Laden's driver and bodyguard in Afghanistan. He has been in jail since 2002, when he was captured in Afghanistan and sent to Guantanamo.
"The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ (Uniform Code of Military Justice) and the four Geneva Conventions signed in 1949," Stevens wrote.
"Even assuming Hamdan is a dangerous individual ... the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment."
The justices pointed out that Congress could have authorized the president to conduct extemporaneous proceedings, but it didn't, either in the Sept. 18, 2001, bill to authorize military force in response to the 9-11 terrorist attacks or in a 2005 law that prevented Guantanamo detainees from appealing their status to federal courts.
President Bush said he would comply with the ruling and would work with Congress to devise some form of tribunal that met the court's legal standard. He also said the ruling wouldn't derail his efforts to keep the nation safe.
"The American people need to know that this ruling, as I understand it, won't cause killers to be put out on the street," he said. "... I understand we're in a war on terror; that these people were picked up off of a battlefield; and I will protect the people and, at the same time, conform with the findings of the Supreme Court."
Senate Majority Leader Bill Frist, R-Tenn., said he would introduce legislation to authorize military commissions to try terrorist combatants after Congress returned from its July Fourth recess. "Since this issue so directly impacts our national security, I will pursue the earliest possible action in the United States Senate," he said.
The Senate Armed Services Committee plans hearings on how to structure tribunals later this summer. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., introduced a bill Thursday that would define terms and processes.
Some legal experts, however, questioned whether cases involving Guantanamo detainees would hold up in courts governed by any U.S. legal code, civil or military.
"The government has a very difficult mountain to climb," said Michael Ratner, the president of the Center for Constitutional Rights, which is involved in challenges to the detentions. "They're not going to be able to use evidence that has been coerced from detainees. What's the government going to have left for evidence?"
Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, said the court's ruling is "a constitutional tonic that is sorely needed if we are to counter terrorism effectively, efficiently and with American values." He said the justices had provided a "much-needed check on this administration's unilateral policies."
Stevens' and Kennedy's opinions relied heavily on the significance of constitutional restraints on executive power and the important role that the courts and Congress must play in that regard, even in times of war.
The ruling echoed two previous rulings on Bush's detention policies. In 2004, the court said the president had unlawfully named a U.S. citizen as an enemy combatant and was illegally detaining him without charges or trial. It also ruled that while Bush could detain foreigners as enemy combatants, he couldn't do so indefinitely or without trial.
Kennedy was explicit Thursday about the dangers that he thought the president's unilateral actions in the Hamdan case posed.
"Concentration of power puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution's three-part system is designed to avoid," he wrote. "It is imperative, then, that when military tribunals are established, full and proper authority exists for the Presidential directive."
Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer joined Stevens and Kennedy to form the court majority. Chief Justice John G. Roberts Jr. took no part in the case, because he previously had ruled on it as an appellate judge.
Justice Antonin Scalia dissented strongly, saying the court had no jurisdiction to hear the case. The 2005 law that prevented Guantanamo detainees from appealing their status in federal courts barred the justices from getting involved, he said.
Justice Clarence Thomas penned a nearly 50-page dissent, objecting to the court's decision to second-guess the president. He called the ruling "so antithetical to our constitutional structure that it simply cannot go unanswered."
Thomas read part of his dissent aloud from the bench, the first time he has done that in his 15 years at the high court.
Justice Samuel Alito wrote a dissent arguing that the tribunals were legal.
The case may have implications far beyond the fate of the Guantanamo detainees.
In saying the Guantanamo proceedings were illegal, the justices relied in part on Common Article 3 of the Geneva Conventions, which calls for "regularly constituted" courts to handle cases involving detainees. Kennedy described the section as "binding law" in the war with al-Qaida because it's part of a treaty the Senate has ratified.
Article 3 prohibits torture and any "outrages upon human dignity, in particular humiliating and degrading treatment," language that could implicate the administration for authorizing aggressive interrogation techniques.
"The administration's conclusion that Common Article 3 does not apply ... was the key linchpin to the entire edifice of legal maneuvers that led to waterboarding, hypothermia, degradation, etc.," Georgetown University law professor Marty Lederman wrote Thursday on the legal Web log SCOTUSblog.
Hamdan and 13 others have been subject to the tribunal process, whose rules have changed time and again as the Pentagon tried to fashion a system.
At first, five or more military officers acted as equals on the commissions, fusing jury functions with those of a judge. They all ruled on facts of law, though only one commissioner had legal training.
To resolve that, the Pentagon changed the rules, elevating the presiding officer—an Army colonel—to a judgelike role, and having the officer appear at pretrial hearings in a black robe instead of a military uniform.
Then, on the eve of Supreme Court arguments in Hamdan's case, the Pentagon issued an order that said that in keeping with U.S. international obligations, evidence obtained through torture wouldn't be admissible at any of the military trials. It left up to the Pentagon prosecutor the role of deciding which evidence was tainted and whether to exclude it.
Thursday's collision between the Bush White House and the Supreme Court is rooted in decisions the administration made shortly after 9-11.
Even before American troops and their Afghan allies began scooping up Taliban members, al-Qaida suspects and others in Afghanistan, the administration was faced with deciding what to do with them.
According to two former senior officials who participated in some of the deliberations and who spoke only on condition of anonymity because their discussions with the president were supposed to be private, Bush, largely at the urging of Vice President Dick Cheney and Defense Secretary Donald H. Rumsfeld, made two fundamental decisions that ultimately led to Thursday's rebuke.
Bush, Cheney and Rumsfeld decided that because their top priority was preventing another terrorist attack, interrogating prisoners was more important than bringing them to justice. As a result, the president issued a series of sweeping executive orders, all of them secret, that set aside not only the prisoners' legal rights—including habeas corpus and due process—but also the military and international rules that govern their treatment, questioning and trial.
In November 2001, Cheney said the administration's new policies would guarantee "the kind of treatment of these individuals that we believe they deserve."
Prodded by Cheney's top legal adviser, David Addington, and by White House political adviser Karl Rove, Bush, Cheney and Rumsfeld also decided that 9-11 offered what one of the former officials called "a chance to undo all the damage that Vietnam and Watergate did" to the power of the presidency.
In a Sept. 25, 2001, memo, the White House Office of Legal Counsel asserted that the president "has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. ... The power of the President is at its zenith under the Constitution when the President is directing military operations of the armed forces, because the power of Commander in Chief is assigned solely to the President."
Once Bush decided that Hamdan should be tried by military tribunal, the detainee sued, challenging the president's claim of authority.
Hamdan said that since he was being tried for conspiracy—not a violation of the laws of war—he couldn't be subject to a military tribunal. He also said the tribunals the president set up violated basic procedural rules in military and civilian law, including regulations governing evidence.
A district court sided with Hamdan, but the U.S. Circuit Court of Appeals for the District of Columbia—with Roberts as a member—reversed the ruling.
The high court on Thursday rejected all the government's arguments regarding Hamdan.
Kennedy specifically addressed the scope of presidential power in wartime, saying it isn't always at its zenith when the president is directing the military.
Quoting at length from a 1952 case, Youngstown Sheet & Tube Co. v. Sawyer, which defined the delicate balance between presidential and congressional authority, Kennedy stressed that there are times when the president's power is low, even in a military context.
"In this case, the president has acted in a field with a history of congressional participation and regulation," Kennedy said, citing the Uniform Code of Military Justice and other statutes that govern how and when people can be tried. "While these laws provide authority for certain forms of military courts, they also impose limitations. If the president has exceeded these limits, this becomes a case of conflict between presidential and congressional action."
In those circumstances, Kennedy said, the 1952 ruling defines presidential power at its "lowest ebb."
(Carol Rosenberg, Marisa Taylor, Lesley Clark, Drew Brown and Margaret Talev contributed to this report.)
To read the Supreme Court decision online, go to
(c) 2006, McClatchy-Tribune Information Services.
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