Bush Administration Rebuffed by Supreme Court

In a 5-3 decision, the Supreme Court rules that President Bush overstepped his authority in ordering military tribunals for some Guantanamo detainees. Duke University's Scott Silliman tells Susan Stamberg that the Bush administration will now have to go back to the drawing board to find a solution for the detainees.

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SUSAN STAMBERG, host:

More now on today's Supreme Court ruling in a key case testing the Bush administration's process for putting on trial terror suspects held at Guantanamo Bay. In a five to three decision, the court ruled that President Bush overstepped his authority in ordering military tribunals for some of the detainees. The justices said the tribunals violate U.S. law and the Geneva conventions. To talk about today's rulings, Scott Silliman - he's executive director of the Center on Law, Ethics, and National Security at Duke University. He's on the line with us from Durham, North Carolina. Good morning to you.

Professor SCOTT SILLIMAN (Center on Law, Ethics, and National Security at Duke University): Good morning. It's a pleasure to be with you.

STAMBERG: Thank you. This decision is a rebuke to the Bush administration and it's prosecution of this war against terrorism.

Prof. SILLIMAN: Well, I think it certainly is a setback for the administration with regard to military commissions. As you suggested, the court held that no statute passed by Congress - the Detainee Treatment Act or the authorization for the use of military force - specifically authorized President Bush to convene this type of military commission. It basically said it's a war court, it must follow the laws of the United States, the uniform code of military justice, and more especially common, article three of the Geneva Conventions. And that is a decision that the president had specifically made about four years ago, that the Geneva Conventions did not apply. The court in today's ruling disagreed with him.

STAMBERG: Mm hmm. And what was the problems that they saw with these military tribunals?

Prof. SILLIMAN: Well, they pointed to two specific procedural due rights processes that Hamdan - and procedurally, others - would not be afforded: one, the right to be present at all times during the tribunal. And also, the court pointed at the Admissibility of Evidence Standard - which was much less than for a court martial - and said that the president had not justified these deviations from standard court martial procedure. The court is basically driving the administration to adopt court martial procedures if it's going to prosecute those at Guantanamo Bay.

STAMBERG: And Hamdan was a former driver, a Yemeni driver for Osama bin Laden, on whose case this decision was based. Well, where does this ruling leave the administration, please.

Prof. SILLIMAN: Well, it leaves it in somewhat of a dilemma. If it's going to proceed to prosecute those at Guantanamo Bay - and I suspect that's only going to be 15 or 20 at most - then it must revise the procedures, and as the court suggested, comply more with court martial procedures, which is what we use for our own servicemen when we prosecute them. I think that's the easiest way for the administration to comply with the court's mandate. Again, a more significant point would be that the court was not persuaded by the government's argument that the Detainee Treatment Act denuded it of jurisdiction over Hamdan's case. It ruled it did have jurisdiction. That has a spillover effect into all the habeas corpus petitions, the challenges to the detention from those at Guantanamo Bay that are currently residing in the District of Columbia circuit. That opinion is yet to come. The Supreme Court's opinion today in Hamdan's case will obviously dictate that the D.C. circuit will be holding on to those cases, and they will have life breathed into them again.

STAMBERG: Yeah, very briefly now, Guantanamo does not shut down, but what about the hundreds of detainees there?

Prof. SILLIMAN: Well, obviously, that has been a continuing dilemma for the administration. I think the president has said he wants to close it. The Department of State has been working with the countries involved to try to move their citizens back. But we're been saying we want them held in restraint in those countries. I think the countries are coming back and saying you didn't - you never charged them with an offense. How can we hold them? That's a separate but related issue to the court's opinion. But today's opinion puts more pressure on the administration to do something to fix Guantanamo Bay.

STAMBERG: Thank you very much. Scott Silliman, executive director of the Center on Law, Ethics, and National Security at Duke University. Today, the court ruled against the Bush administration and its military tribunals for detainees at Guantanamo Bay.

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'Hamdan v. Rumsfeld': Legal Issues & Ramifications

Salim Ahmed Hamdan

Salim Ahmed Hamdan, seen here in an undated photo handed out by his defense lawyers. Getty Images hide caption

itoggle caption Getty Images

Ruling: The Supreme Court ruled that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

Read the Court's Ruling

In a 5-3 vote, the Supreme Court ruled that President Bush overstepped his authority in ordering military tribunals for Guantanamo detainees. The court ruled that the tribunals violate U.S. laws and the international Geneva Conventions. Read the court's ruling:

Vote: Split 5-3, with moderate Justice Anthony Kennedy joining the court's more liberal members in ruling against the Bush administration. Chief Justice John Roberts recused himself from the case because, as an appeals court judge, he had backed the government over Hamdan. The Supreme Court's ruling overturned that decision. Justices Clarence Thomas, Antonin Scalia and Samuel Alito dissented.

Case Background: The case involves Osama bin Laden's one-time driver, a Yemeni citizen named Salim Ahmed Hamdan. The U.S. government says Hamdan was a confidant and bodyguard of bin Laden and helped transfer weapons from the Taliban to al-Qaida. Hamdan claims he was just a chauffeur. He says he was trying to return home in 2001 when he was captured by the Northern Alliance in Afghanistan and turned over to the U.S. military for bounty. Hamdan has spent four years in the U.S. prison in Cuba. He faces a single count of conspiring against U.S. citizens from 1996 to November 2001.

Legal Issues Involved: The Hamdan case tested the legality of the commissions set up to try Guantanamo detainees. The president claimed that his inherent executive powers allow him to try detainees such as Hamdan held at Guantanamo outside traditional military or civilian courts.

The White House argued that presidential authority was reinforced by Congress' Authorization for Use of Military Force, passed in the wake of the Sept. 11 attacks.

The administration said the detainees are not prisoners of war but "unlawful combatants," and as such, are not entitled to the protections of the Geneva Conventions.

In its 5-3 ruling, written by Justice John Paul Stevens, the Supreme Court forcefully rejected that argument. In a separate opinion, Justice Stephen Breyer wrote:

"Congress has not issued the executive a 'blank check,"' adding: "Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here. Nothing prevents the president from returning to Congress to seek the authority he believes necessary."

Justice Stevens suggested that, if the U.S. government wishes to proceed with prosecutions of Guantanamo detainees, it would be best off using regular military courts-martial trials.

Scott Silliman, executive director of the Center on Law, Ethics and National Security at Duke University, estimates that such prosecutions would likely affect only 15 to 20 Guantanamo detainees at most. But in a conference call Thursday, some military and Justice Department officials said that as many as 80 could face some sort of legal action. Approximately 450 men are held at the U.S. prison camp.

Jurisdiction: In December 2005, Congress passed the Detainee Treatment Act, which stripped the federal courts of jurisdiction over at least some pending cases involving Guantanamo detainees. That made the Supreme Court's jurisdiction a key question in the Hamdan case.

But in its ruling, the Supreme Court asserted its right to review such cases.

"The Court's duty," Stevens wrote, "in both peace and war, [is] to preserve the constitutional safe-guards of civil liberty. " He added: "The Government has identified no countervailing interest that would permit federal courts to depart from their general duty to exercise the jurisdiction Congress has conferred on them."

The ruling also affects the dozens of habeus corpus petitions from Guantanamo prisoners challenging their detention that are currently before the District of Columbia Circuit Court. Thursday's opinion means that the Circuit Court does indeed have jurisdiction to hear those petitions.

Prior Cases: Two years ago, the high court rejected President Bush's claim that he had authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. This follow-up case focuses solely on trials planned for some of those detainees.

Compiled from NPR staff and wire reports. The Associated Press contributed to this report.

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