A Project of the American Enterprise Institute and the Federalist Society

Justices Bar Guantanamo Tribunals

Wall Street Journal

June 30, 2006

By Jess Bravin

In a withering opinion handed down on the last day of its term, the Supreme Court declared unlawful the Bush administration's military tribunals, an alternative legal system established to prosecute enemy prisoners without granting them traditional rights found in courts-martial. The tribunals were among the first and most far-reaching of White House responses to the Sept. 11, 2001, terrorist attacks.

The 5-to-3 ruling specifically repudiated the tribunals in Guantanamo Bay, Cuba, finding that by denying fundamental rights to defendants, they violated the Uniform Code of Military Justice and the Geneva Conventions. But it also raised questions about the logic behind the aggressive legal strategy the administration has used to expand executive authority on multiple fronts, including warrantless surveillance of targets within the U.S., and the broad monitoring of international financial transactions.

The victor in the legal case was a former driver for Osama bin Laden, Salim Ahmed Hamdan, who was caught when the U.S. invaded Afghanistan.

But while he can no longer be tried before a tribunal, there is little chance that he -- or the approximately 450 other men held at Guantanamo -- will be set free, either. The court didn't address the legality of holding enemy combatants while hostilities continue, but rather said that if they are to be prosecuted for war crimes, the proceedings must obey the laws of war. The ruling "won't cause killers to be put on the street," President Bush said at a news conference.

The tribunals, known formally as military commissions, were conceived as a response to the challenges of prosecuting suspected international terrorists. While promising defendants a "full and fair" trial, Mr. Bush's Nov. 13, 2001, order establishing the panels of military officers permitted them to exclude the accused from proceedings and deny defendants access to prosecution evidence as well. It let the panels consider virtually any evidence they considered "probative," including hearsay. Moreover, the order denied defendants the right of appeal to independent courts.

The justices made the administration's choices clear: It can prosecute the enemy prisoners under the Uniform Code of Military Justice, which effectively requires proceedings akin to a court-martial. Or it can persuade Congress to adopt a different legal regime for them. Making its own rules outside congressional authority was illegal, the justices found.

Mr. Bush suggested that his next step would be to try to work with Congress to craft a legally acceptable way to proceed, an initiative Senate Majority Leader Bill Frist said he would pursue quickly after the July 4 recess. The president said that "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." (Read the full text of Mr. Bush's remarks9.)

To White House lawyers, the "global war on terrorism" Mr. Bush declared invoked his presidential war powers in a battle that rages continuously around the world. Administration lawyers contended that the constitutional clause designating the president "commander in chief of the Army and Navy" should be read expansively, so that the Executive Branch could take virtually any steps it deemed necessary for national security. At various times, administration lawyers have argued that this power permitted the president to disregard laws prohibiting torture -- and, in this case, provisions of the Geneva Conventions and other treaties protecting prisoners.

In the November 2001 decree, styled a "military order," Mr. Bush authorized military commissions to try defendants he selected, according to rules he created, for crimes he defined. But Justice John Paul Stevens, in a 73-page opinion for the court joined in most part by four other justices, went piece-by-piece through the legal theories the president had asserted, finding in each instance that they ran afoul of law and precedent.

Describing the opinion as a "limited" one, Justice Stevens said the court merely was affirming that if the president sought to prosecute enemy prisoners, he must do so in accord with existing laws of war, not create new ones he found "more convenient." A plurality also found that the charge against Mr. Hamdan, conspiracy, wasn't a war crime.

Still, the ruling cast doubt over another widely disputed legal claim the administration has made -- that the Geneva Conventions of 1949, which forbid "humiliating and degrading treatment," do not protect prisoners held at Guantanamo. While the administration contended that the treaty's enforcement was a matter between governments, the court read the conventions as a codification of the laws of war that Congress had incorporated into American military law. Attorneys contesting the broader policies of detention and interrogation at Guantanamo are likely to seize on yesterday's opinion.

The case brought a contentious end to the first term of the Roberts Court. Justices Antonin Scalia, Clarence Thomas and Samuel Alito vigorously dissented, contending the Detainee Treatment Act, a law signed Dec. 30 that provides Guantanamo prisoners with limited access to the courts, required dismissal of the case, and castigating the majority's "audacity" in second-guessing the president.

Justice Thomas, in a 49-page dissent, said the laws of war are "flexible" tools that evolve to meet the needs of new conflicts. The commissions were an appropriate response to the present conflict, he wrote, where "we are not engaged in a traditional battle with a nation-state, but with a world-wide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of Sept. 11."

Broader Question

The ruling has nothing to say about the broader question of Guantanamo, used to house prisoners swept up in counterterrorism operations. To many critics of the U.S., the base has become synonymous with prisoner abuse and superpower arrogance. Authorities including the British attorney general and the United Nations Committee Against Torture have called for the prison's closure.

Mr. Bush himself has said he'd like to close it, but deflected questions about how he might do so until the Supreme Court ruled on the commissions. With that decision now in, Washington is sure to feel pressure to act on the base. Yet the logistics are daunting. A State Department spokesman said "the administration wants to reduce as soon as we can the population of Guantanamo in ways that [are] responsible and that respect the concerns of the countries involved and take full account of the threat that the people in Guantanamo present."

Many prisoners, held at the outset because interrogators deemed them violent threats, are embittered men who might take up arms against the U.S. if freed. Others could face persecution in their homelands if freed. The U.S. is under treaty obligations to avoid returning people to places where they may be tortured.

Mr. Hamdan's lawyers have said all along they would be satisfied to face a court-martial. That is an option that many military lawyers have endorsed, saying the criminal-justice system used by military since World War II is a workable balance between individual rights and national-security concerns.

But officials familiar with the Guantanamo prosecutions say court-martial rules could jeopardize convictions by forcing exclusion of certain evidence. This might include statements taken through interrogations of al Qaeda leaders held elsewhere, unless defendants had a chance for cross-examination. Officials are loath to produce such prisoners for questioning by defense attorneys.

Yesterday's decision was the most recent instance of a pendulum swing away from Mr. Bush's post-9/11 claim of new executive powers, and toward the other two branches of the federal government.

Two years ago, the high court tried to set limits on the Guantanamo detentions, rejecting the administration's claim that enemy prisoners there had no rights that federal courts could recognize. That opinion, by the now-retired Justice Sandra Day O'Connor, established court jurisdiction over the isolated base in southern Cuba. While stopping short of dictating what process was due the prisoners, Justice O'Connor said "a state of war is not a blank check for the president."

Her phrase was pointedly echoed yesterday in a concurring opinion by Justice Stephen Breyer that three others joined. "The court's conclusion," he wrote, "ultimately rests on a single ground: Congress has not issued the Executive a 'blank check.'"

Many legal observers had seen the 2004 opinion as a warning to the administration that it should replace its treatment of enemy prisoners with a clear and consistent system authorized by Congress. The White House declined, worried that such a move would implicitly concede a congressional role in defining the president's war powers.

Justice Department lawyers sensed that the high court was growing unreceptive to administration theories. Last year, faced with probable Supreme Court review of the detention of a U.S. citizen without charge as an enemy combatant, the administration ducked. The prisoner, Jose Padilla, was sent from a military brig to a civilian court in Miami, to stand trial on terrorism-related charges.

The treatment of enemy prisoners provoked rebellion in Congress, which last year overwhelmingly passed legislation aimed at ensuring compliance with treaties barring torture. Republican Sens. John McCain of Arizona, once a Vietnam prisoner of war, and Lindsey Graham of South Carolina, who as an Air Force Reserve officer sits as a military judge, led the charge for the legislation, which the president signed rather than see a possible veto overridden. It afforded the prisoners limited appeal rights.

Pennsylvania Republican Arlen Specter, chairman of the Senate Judiciary Committee, said yesterday's ruling could undermine the White House on other anti-terror powers. "The decision that the president lacked the authority to establish military commissions," he said, "may have some weight as we consider collateral matters, for example, on the electronic surveillance" by the National Security Agency.


Mr. Bush hasn't easily or often compromised with his critics in the legislative and judicial branches. Repeatedly since 9/ 11 he has defended his claims to executive power in the name of protecting Americans, evidently gambling that, in the court of public opinion at least, his view was more likely to prevail. He and fellow Republicans are trying to make that debate -- between security and civil liberties -- a defining theme of this year's congressional elections.

Mr. Bush struck a similar tone in his response to the court decision yesterday, saying: "One thing I'm not going to do is...jeopardize the safety of the American people." He added: "We're in a war on terror. These people were picked up off the battlefield."

As for the judiciary, Mr. Bush has placed on the bench judges who tend to share his views of executive power. The justice he named to replace Justice O'Connor, Samuel Alito, was a dissenter yesterday, and in his rulings and writings has embraced a broad view of executive authority.

Mr. Bush's other high-court appointee, Chief Justice John Roberts, recused himself because he had ruled on the Hamdan case as a lower-court judge last year. He had backed the White House position. This was the ruling his new Supreme Court colleagues rejected.

Mr. Hamdan, 36, was sent to Guantanamo in June 2002 and was among the first four prisoners Mr. Bush designated for trial. He was represented by a Navy lawyer -- assigned by the government -- and by a Georgetown law professor. Like other defense lawyers at Guantanamo, they didn't limit themselves to contesting their clients' guilt but assaulted the very legitimacy of the military panels.

In November 2004, U.S. District Judge James Robertson in Washington, D.C., held that the Uniform Code of Military Justice required that military trials comport with the Geneva Conventions -- and that since the commissions didn't, they were unlawful. His order, delivered as a hearing was under way in Guantanamo, led to a shutdown of the trials while the government appealed. In July 2005, a three-member panel of the U.S. Court of Appeals for the District of Columbia -- the one including then-Judge Roberts -- unanimously reversed Judge Robertson.

As the Supreme Court reviewed that ruling, the administration ramped up proceedings at Guantanamo. While barred from moving forward with the Hamdan prosecution, it pressed other cases and planned to spend the entire month of June conducting proceedings. Those plans were canceled on June 10 after three Guantanamo prisoners -- none among the defendants -- committed suicide. Yesterday's decision makes it unlikely the trials ever will resume in the form the president envisioned.

Dismantled Construct

In the ruling, Justice Stevens, joined by Justices Breyer, David Souter, Ruth Bader Ginsburg and in large part by Anthony Kennedy, painstakingly dismantled the legal construct on which the White House built its military panels.

The administration had maintained the commissions were consistent with military practices dating to the Revolutionary War. The 2001 commission order was modeled on one issued in 1942 by President Franklin Roosevelt that led to the trial and execution of a team of Nazi saboteurs who had landed in the U.S. Administration lawyers relied heavily on the 1942 Supreme Court case upholding that procedure as legal justification for the system it set up at Guantanamo.

Justice Stevens wrote that the administration had misread history. He said military commissions were a creature of "military exigency" that battlefield commanders could convene when other courts were unavailable. He cited a Civil War case where the court rejected the Lincoln administration's effort to try Confederate sympathizers by military panels. And he wrote that the administration had interpreted the Nazi saboteur case, known as Quirin, as a greater grant of executive power than it truly was.

Besides the inherent power claimed by the president, the administration argued that Congress implicitly had authorized the military commissions in September 2001 when it passed a resolution permitting a military response to the terrorist attacks. But Justice Stevens found "there is nothing in the text or legislative history of the [resolution] even hinting" that Congress intended to change the existing system of military law.

As codified in the Uniform Code of Military Justice, the court found, military commissions must follow court-martial procedures, including guarantees the defendant can attend all trial proceedings and see all prosecution evidence, unless some reason makes it "impracticable." Justice Stevens said the president had failed "to satisfy the most basic precondition" to establish the commissions outside congressional authorization.

"Hamdan's tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities," he wrote. "The only reason offered" for using a commission "is the danger posed by international terrorism." He said that "without for one moment underestimating that danger, it is not evident to us why" it should require "variance from the rules that govern courts-martial."

Nuremberg Precedent

Even if all the other criteria were met, a plurality found, the single charge levied against Mr. Hamdan -- conspiracy -- wasn't a war crime. The Nuremberg tribunal after World War II had rejected the charge, Justice Stevens wrote, and it is not listed in any "of the major treaties governing the law of war." He said that "Hamdan is charged not with an overt act for which he was caught red-handed in a theater of war and which military efficiency demands be tried expeditiously."

In its charge sheet, Justice Stevens wrote, the government recited much about al Qaeda in general but said little about Mr. Hamdan's alleged role. "There is no allegation that Hamdan had any command responsibilities, played a leadership role or participated in the planning of any activity," the court said.

The four "overt acts" alleged against him included acting as Mr. bin Laden's "bodyguard and personal driver," transporting weapons, accompanying Mr. bin Laden when he "encouraged attacks against Americans" and receiving "weapons training at al Qaeda-sponsored camps," the court noted. It said none of those allegations "is itself a war crime."

Through his attorneys, Mr. Hamdan has acknowledged serving as Mr. bin Laden's driver but denied involvement in terrorism. Guantanamo's chief military prosecutor, Col. Moe Davis, said the bin Laden driver was deeply involved in the terror chief's plots. "He's no Morgan Freeman," Col. Davis says, referring to the chauffeur the actor played in the movie "Driving Miss Daisy."

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