Supreme Court blocks Gitmo war tribunals

Graphic showing the breakdown of today's decision by the Supreme Court against the Bush administration's desire to try Gitmo suspects by military tribunals. From New York Times

This is a big setback for the Bush administration. From the New York Times:

The Supreme Court today delivered a sweeping rebuke to the Bush administration, ruling that the military tribunals it created to try terror suspects violate both American military law and the Geneva Convention.

In a 5-to-3 ruling, the justices also rejected an effort by Congress to strip the court of jurisdiction over habeas corpus appeals by detainees at the prison camp in Guantanamo Bay, Cuba.

And the court found that the plaintiff in the case, Salim Ahmed Hamdan, a former driver for Osama bin Laden, could not be tried on the conspiracy charge lodged against him because international military law requires that prosecutions focus on specific acts, not broad conspiracy charges.

President Bush today said that he would comply with the ruling and would work with Congress "to have a military tribunal to hold people to account'' that would meet the Court's objections.

The majority ruling was written by Justice John Paul Stevens, who was joined in parts of it by Justices David H. Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Anthony M. Kennedy wrote a concurring opinion.

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.

Salim Ahmed Hamdan is seen in this undated file photo. (AP Photo/photo courtesy of Prof. Neal Katyal)

This is a huge setback for the Bush administration. The administration had originally wanted to strip all civil and legal rights away from these prisoners--first by declaring them "enemy combatants" of which they claimed were not prisoners of war, and thus not protected under the Geneva Conventions. In other words, the administration wanted to lock up these "terror" suspects and throw away the key. If the administration was legally forced, by the Supreme Court, to provide some type of trial or hearing for these terror suspects, they wanted to concentrate that hearing within the executive branch with these military tribunals, of which they can control these hearings, and control the "evidence" presented at these hearings. The Bush administration wanted to circumvent the judicial branch by keeping these terror suspects out of the court system, where these suspects would have greater legal rights of counsel, and the legal ability to confront and question the evidence presented against them--no executive excuses of denying to present evidence against the suspects on the grounds of "national security," or that such presentation would divulge "intelligence-gathering" assets.

So what is next here? Consider this from The Washington Post:

About 450 detainees captured in the war on terrorism are currently held at the U.S. naval base in Cuba. Trying them before military commissions would place them under greater restrictions and afford them fewer rights than they would get in federal courts or regular military courts.

According to Hamdan's military lawyer, Lt. Cmdr. Charles Swift, he now must be tried either in a federal court or before a properly constituted court martial.

Swift told reporters that the ruling demonstrates the ruling demonstrates the strength of the U.S. justice system. "It makes us unique, it makes us stronger, and it means that we will ultimately win every struggle," he said.

"I am ready to defend [Hamdan] in a fair trial," Swift said, adding that he has no preference on whether it takes place in federal court or a court martial. If the government wants to pursue a conspiracy charge, a federal court would be the proper venue, he said. "If they want to charge him with a war crime, I'm ready to defend him in a court martial."

In this January 2003 US Navy file photo, Al-Qaeda and Taliban detainees in orange jumpsuits sit in a holding area at Camp X-Ray at Naval Base Guantanamo Bay, Cuba. (AFP/HO/File/Shane T. McCoy)

President Bush has basically four choices here for Hamden, and for the rest of the Gitmo detainees. He can try Hamdan in a federal court. He can also try Hamden in a military court martial. Either of these trials will provide Hamdan with greater legal rights than under the military tribunals. President Bush may attempt to introduce legislation into Congress, giving him the authority to create these military tribunals for Hamdan and the Gitmo detainees. However, Congress will never be able to pass such legislation during this midterm election year, and if any such legislation is introduced, it could be met with strong Democratic opposition--perhaps to the point where the Democrats would filibuster this legislation. The fourth option is that the Bush administration would be forced to release Hamden and the rest of the 450 Gitmo detainees.

The ball is back in the Bush administration's court.