How interesting. The Supremes rule that Congress did not give Bush a "blank check" to tear up the Geneva Conventions when it voted to approve military action after 9-11. Now, Bush uses precisely the same argument to justify the program of warrantless surveillance [2]. Will the courts strike that down as well? Has the revolt of the judiciary finally begun? From the New York Times [3], June 29 (links added):
The Supreme Court today delivered a sweeping rebuke to the Bush administration, ruling that it exceeded its authority by creating tribunals for terror suspects that fell short of the legal protections that Congress has traditionally required in military courts.
As a result, the court said in a 5-to-3 ruling, the tribunals violated both American military law and the military's obligations under the Geneva Conventions.
The court ruled two years ago [4] that Congress had not given the executive branch a "blank check" in the war on terror. But today's ruling, written by Justice John Paul Stevens, was the first to address the standards that should apply to suspects held in what has become a prolonged struggle.
It was also the most significant rebuff to date to President Bush's effort to expand presidential power in the course of waging that struggle. And the reasoning adopted by the majority called into question the justification Mr. Bush has used for other programs that have come under Congressional scrutiny, like the warrantless wiretapping conducted by the National Security Agency.
In a concurring opinion, Justice Anthony M. Kennedy said the administration had failed to prove a "practical need" that would justify trying the detainees in courts that provided a lesser standard of justice than Congress had authorized.
The lawsuit brought by the petitioner in the case, Salim Ahmed Hamdan, a former driver for Osama bin Laden who was captured in Afghanistan in 2001, did not challenge his detention in the prison camp in Guantánamo Bay, Cuba, and does not affect the government's ability to hold prisoners there.
But while the court's ruling represented a decisive rejection of the administration's approach to the handling of terror suspects, legal experts said it might also open the way out of a legal morass created by contradictory court rulings and inconsistent policies. The justices appeared to indicate that the government had a choice of trying the detainees in traditional courts-martial or of seeking Congressional approval of an alternative system.
"Nothing prevents the president from returning to Congress to seek the authority he believes necessary," Justice Stephen Breyer wrote in his own concurring opinion.
President Bush, in preliminary remarks after what he called a "drive-by briefing" on the ruling, hinted at such an outcome, saying "the Hamdan decision was the way forward," and that he would work with Congress to "have a tribunal to hold people to account" while meeting the court's directive.
The White House spokesman, Tony Snow, said later that Mr. Bush was referring to "judicial proceedings or equivalent judicial proceedings, such as military commissions, perhaps courts-martial."
In the ruling today, the justices rejected the administration's argument that the Detainee Treatment Act [5] passed by Congress last year had deprived them of jurisdiction over the case.
Justice Stevens was joined in parts of the majority ruling by Justices David H. Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Breyer and Justice Kennedy both wrote concurring opinions.
Justices Antonin Scalia, Clarence Thomas, and Samuel J. Alito Jr. dissented. Chief Justice John G. Roberts Jr. did not take part in the case, since he had ruled in favor of the government as an appeals court justice last year.
Justice Thomas took the unusual step of reading his dissent from the bench, the first time he has done so in his 15 years on the court. He said that the ruling would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."
Justice Stevens declared flatly that "the military commission at issue lacks the power to proceed because its structure and procedure violate" both the Uniform Code of Military Justice, which governs the American military's legal system, and the Third Geneva Convention. The majority opinion rejected the administration's claims that the tribunals were justified both by President Bush's inherent powers as commander in chief and by the resolution passed by Congress authorizing the use of force after the Sept. 11. There is nothing in the resolution's legislative history "even hinting" that such an expansion of the president's powers was considered, he wrote.
Justice Stevens dwelt at length on the ways in which the military tribunals lack protections afforded to defendants being tried by courts martial, including the use of evidence obtained through coercion.
"Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case," he wrote.
"The only reason offered in support of that determination is the danger posed by international terrorism" he said. "Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan's trial, any variance from the rules that govern courts-martial."
Justice Scalia responded in scathing language to the majority's reasoning on this point. He quoted President Bush's order creating the tribunals, which declared them to be necessary "for the effective conduct of military operations and to prevent terrorist attacks."
"It is not clear where the Court derives the authority — or the audacity — to contradict this determination," Justice Scalia wrote.
In his dissent, Justice Thomas cited a recent ruling in an environmental case to argue that the majority was being inconsistent in order to denigrate the president's powers.
"Those Justices who today disregard the commander-in-chief's wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency's wildly implausible conclusion that a storm drain is a tributary of the United States," Justice Thomas wrote. "It goes without saying that there is much more at stake here than storm drains."
For his part, Justice Stevens devoted a long string of footnotes to dissecting what he at one point called Justice Thomas's "remarkable view" of the case.
Cmdr. Charles Swift, the Navy lawyer assigned by the military to represent Mr. Hamdan, called today's ruling "a return to our fundamental values."
"That return marks a high-water point," Commander Swift said at a news conference outside the court. "It shows that we can't be scared out of who we are, and that's a victory, folks."
He said that the logical next step would be for Mr. Hamdan to be tried either by a traditional military court martial or by a federal court.
Neal Kaytal, a professor at Georgetown University Law School who also represented Mr. Hamdan, called the ruling a "rebuke" to a system of "fake courts."
He said that the court had left it up to Congress to address the question of whether terror suspects should be treated differently from people charged with other crimes.
"But the court has said that our fundamental values are at stake," he said, arguing that the ruling should be seen as a "caution to those who would rush in."
Richard Stamp, a lawyer with the Washington Legal Foundation [6], which filed briefs supporting the government in the case, called the ruling a "disappointment" and an example of judges "clearly making it up as they go along."
Mr. Stamp said the court had ignored its own precedents justifying the use of tribunals instead of courts martial, and was substituting its own judgment for the president's in his role of commander in chief. "For the court to step into the war-making arena, where it has no expertise, is inappropriate," he said.
Mr. Stamp also said he believed the court "has set itself up against both the Congress and the president" by rejecting a law passed last year that stripped the Supreme Court over jurisdiction over appeals by Guantánamo inmates.
Michael Ratner, president of the Center for Constitutional Rights [7] in New York, which represents more than 200 Guantánamo inmates, said he was "thrilled" by the ruling, which he said fully vindicated the views of administration critics.
"What this says to the administration is that you can no longer decide arbitrarily what you want to do with people," Mr. Ratner said in a telephone briefing for reporters. "It upheld the rule of law in this country and determined that the executive has gone beyond the constitution and international law."
Michael Greenberger, who teaches the law of counterterrorism at the University of Maryland law school, said the court could easily have found technical reasons to avoid so sweeping a ruling.
"Obviously they felt strongly not only about the legal issues involved but about what this meant for the United States' position as the pre-eminent supporter of the rule of law worldwide," Mr. Greenberger said.
He said the ruling showed that "it's not enough to repeat the mantra that we're fighting a war on terror and therefore all power resides in the executive branch."
Despite the rebuff to administration policies, Mr. Greenberger said, the ruling may clear the way to a resolution of the murky status of detainees held at Guantánamo, in Afghanistan and in secret detention centers run by the Central Intelligence Agency.
"The court really rescued the administration by taking it out of this quagmire it's been in," he said.
See also our last post on the Hamdan case [8].
See our last post [9] on the detainment scandal.
