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The Supreme Court has delivered a stunning setback to the Bush administration and its approach to the war on terror. The five to three decision has widespread ramifications. The Court ruled the president exceeded his power when he ordered war crimes trials for Guantanamo detainees without specific authorization from Congress.
We have two reports, the first from NPR's Legal Affairs Correspondent, Nina Totenberg.
NINA TOTENBERG reporting:
In the wake of 9/11, President Bush has staunchly maintained that he has inherent power as commander in chief to take many extraordinary steps with or without authorization from Congress, and sometimes despite contrary laws enacted by Congress. In addition, he's maintained that the courts don't have the power to review his actions. But yesterday, the Supreme Court rejected both assertions.
The immediate issue was the administration's establishment of special procedures to try accused war criminals at Guantanamo Bay, Cuba. Writing for the Court's five justice majority, Justice John Paul Stevens said that the Constitution gives Congress, not the president, the authority to make rules concerning captured prisoners and implementing the laws of war. Nothing that Congress did after 9/11, he said, authorizes the kind of sweeping power that the president claimed here. Indeed, said Stevens, both the Uniform Code of Military Justice and the Geneva Conventions require that war crimes trials be conducted by regularly constituted courts, not special courts with special rules.
The Court said that military commissions have historically been conducted within the confines of the rules laid down under the Uniform Code of Military Justice, the UCMJ. The glaring exception was the trial of Japanese General Yamashita after World War II.
Partly because of the subsequent criticism of that trial, the Court said, the UCMJ was specifically expanded to cover those accused of war crimes. The bottom line, said the Court, is that war crimes trials must be conducted under the same rules as courts-martial, though some flexibility is permitted to meet exigent circumstances.
The Court's ruling came in the case of Salim Ahmed Hamdan, the particulars of the charges against him are that he was Osama bin Laden's driver and bodyguard and helped move weapons. The Court said that nothing in the record of the case demonstrates any reason why Hamdan could not be tried under the Military Code of Justice. And the court added, the rules under which the administration sought to try Hamdan were a blatant violation of both the Military Code and the Geneva Conventions since they allow a prisoner to be excluded from the courtroom and convicted on the basis of evidence he's not permitted to see or hear, even evidence that may be the result of torture.
Administration supporters and detractors alike saw yesterday's ruling as a repudiation of the Bush administration's unilateral approach to fighting the war on terror. Former Navy Judge Advocate General John Hutson is now dean of Franklin Pierce Law School.
Professor JOHN HUTSON (United States Navy, Retired; Dean, Franklin Pierce Law School): Yet another in succession of rebukes of the administration by the Supreme Court.
TOTENBERG: Administration ally, Andrew McBride, filed a brief in the case on behalf of former Reagan and Bush administration attorneys general.
Mr. ANDREW MCBRIDE (Attorney, Wiley, Rein and Fielding): I think it's not good news overall for the president's view that the authorization for these military force and/or his own inherent power as commander in chief authorize him, for instance, to conduct the NSA spying or other programs that aren't specifically authorized by Congress.
TOTENBERG: Duke Law professor Curtis Bradley is an advocate of a strong executive.
Professor CURTIS BRADLEY (Professor of Law, Duke University): I think this decision was viewed by the Court and should be viewed be viewed as more of a separation of powers decision than a decision concerning individual liberties. There's even a footnote in the majority opinion where the Court specifically says, when Congress enacts limitations in a wartime context, normally the president is obligated to comply with them even though he's the commander in chief conducting the war.
TOTENBERG: Another aspect of yesterday's ruling speaks directly to what's known as Common Article 3 of the Geneva Conventions, which bans cruel and humiliating treatment of prisoners. Deborah Pearlstein of Human Rights First.
Ms. DEBORAH PEARLSTEIN (Director, Human Rights First):If the Court believes, and I think today suggest pretty strongly that it believes, that all of those people are protected by that provision of the Geneva Conventions, then the administration is really stuck and limited conclusively in what sort of coercive interrogation techniques it can use against detainees in its custody.
TOTENBERG: Until now, the president has suggested he's not limited in that way. In signing Senator John McCain's anti-torture bill, for instance, the president issued a statement suggesting that he would not be constrained by the law. But as Admiral Hutson observes:
Prof. HUTSON: The Supreme Court of the United States of America is saying, oh, yes, you are constrained by them.
TOTENBERG: As for the war crimes trials at Guantanamo Bay, former assistant attorney general Jack Goldsmith says the administration has some unpalatable options.
Mr. JACK GOLDSMITH (Former Assistant Attorney General): The options are to just continue to detain them, or to find a way to send them back to their countries, or to go to Congress and get some kind of different trial procedure set up to try them. Those are the basic options, and none of them are very happy options.
TOTENBERG: The author of yesterday's Supreme Court decision, John Paul Stevens, is the only veteran on the Court. President Bush isn't the first to feel Steven's sting. The justice also wrote the Court's decision requiring President Clinton to testify in the Paula Jones case.
Nina Totenberg, NPR News, Washington.
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