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Supreme Court ruling may ripple through other Bush policies

WASHINGTON—The Supreme Court's ruling Thursday that the Bush administration can't use ad hoc military commissions to try suspected terrorists may have sweeping implications for other aspects of President Bush's war on terror.

The court's decision has ignited a fierce debate about its full impact among lawyers, legal scholars, administration officials and members of Congress.

Some believe that the opinion could challenge the administration's claim the National Security Agency is the right to eavesdrop without court approval on Americans who are suspected of having ties to al-Qaida or other terrorist groups.

The high court's embrace of a central provision of the Geneva Conventions on war could also bolster challenges to U.S. interrogation techniques and the use of secret prisons to detain suspected terrorists. It also could help detainees who are being held without charges, lawyers or trials contest their situations, experts said.

"At this point, almost everything that could be affected by the decision is going to come to a screeching halt," said Neal Sonnett, the chair of the American Bar Association's task force on enemy combatants, referring to the treatment of detainees.

"There is clearly a shot across the bow of the administration," said Scott Silliman, a professor at Duke University Law School and a former senior Air Force lawyer. "The opinion here has clear implications for the court being willing to look at how we are treating folks."

At its heart, legal experts said, the ruling rebuffed Bush's contention that the president has special powers during wartime to disregard acts of Congress and international treaties.

"I think the court's ruling is a rejection of the administration's post 9/11 legal centerpiece claim, which is the president has inherent authority in all kinds of things in the name of crisis," said Neal Katyal, the lead attorney who argued the case on behalf of detainee and plaintiff Salim Ahmed Hamdan.

"One of the potential implications is that the `inherent authority' argument pushed by the executive branch may be in retreat," agreed Sen. Lindsey Graham, R-S.C., in an interview with McClatchy Newspapers on Friday.

The administration has contended since the Sept. 11, 2001 terrorist attacks that the Constitution gives the president as commander in chief "inherent authority" to do virtually anything he wants in the name of protecting national security in time of war. The court emphatically ruled that Congress and the judiciary share authority with the executive, even in time of war.

At the same time, the court held that Congress could write a law creating new tribunals to try detainees, so long as they operate within a civil or military legal code, and leading senators intend to do so soon.

In an interview Friday with McClatchy Newspapers, Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said he doesn't take the court's ruling to mean that those already being held would be off the hook simply because their rights were found to have been violated.

"They can argue that," he said, "but I think there's a basis for detaining them if they're dangerous" so long as Congress passes legislation "very promptly". "They're not going to be released," Specter said. "We'll be given time to structure a procedure that is adequate."

Specter's offering a bill that would authorize military commissions to handle detainees with two divisions—one for those charged with specific offenses and another for enemy combatants who are being held indefinitely.

Those charged would face three-officer panels with presiding judges from the Judge Advocate General's Office. They'd be entitled to cross-examination witnesses and to require unanimous verdicts. If classified information was involved, the presiding judge would decide how much information to make available to the defense, and the defendant's attorney could get a security clearance to handle that classified information.

Graham agreed that the court's ruling "confirms that the military can hold these people until the hostilities are over . . . The case was about how you bring them to trial, not how you hold them. Anybody who says detainees are going to get off the hook because of this ruling are misunderstanding the opinion, in my opinion."

"The good news," Graham said, "is we now know how to write the statute to make it constitutional and to be able to move the cases forward."

Legal experts cautioned that analysis of the complex 5-3 decision was preliminary, because they'd only had a day to distill it. But overall, there was widespread agreement that the decision could spell more legal trouble for the administration's war on terror.

The majority decision, written by Justice John Paul Stevens, concluded that the administration's Guantanamo Bay tribunals violated both U.S. law and the Geneva Conventions of 1949 because they didn't provide defendants with legal safeguards that civilian and military courts require and they weren't authorized by Congress.

The justices cited Common Article 3 of the Geneva Conventions, which calls for "regularly constituted" courts to handle cases involving detainees. Article 3 prohibits torture and other "degrading treatment."

Some legal scholars said that could encourage current and former detainees to bring cases against the government for employing harsh interrogation techniques at Guantanamo Bay and other U.S.-run prisons.

Experts said that at the very least, the Pentagon would have to ensure that interrogation techniques set out in a new Army field manual now being drafted would have to conform with the Geneva Conventions.

"Anything basically that we wouldn't want done to our own troops—it's now prohibited," said John Hutson, the dean of the Franklin Pierce Law Center and a former Navy Judge Advocate General.

Some administration supporters predicted that the ruling would undermine public support for the president's claim of special wartime powers.

"It's a major setback for the president. The advocates of diminishing his office now have a powerful public relations tool to say that the most powerful court in the land has said he is a law breaker," said Douglas Kmiec, a professor of constitutional law at Pepperdine University Law School and a legal counsel for former presidents George H.W. Bush and Ronald Reagan.


(McClatchy correspondent Stephen Henderson contributed to this report.)


(c) 2006, McClatchy-Tribune Information Services.

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