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In a remarkable repudiation of the Bush administration’s exercise of power in the war on terror, the Supreme Court on Thursday ruled that the military commissions established to try Guantánamo Bay, Cuba, detainees violate both U.S. law and the Geneva Conventions.

Handed down on the final day of the Court’s term, the 5-3 decision could affect government policies beyond Guantánamo, jeopardizing U.S. interrogation techniques used on detainees and prisoners, which human rights groups say also violate the Geneva Conventions on the treatment of war prisoners.

Ruling in the long-awaited case of Hamdan v. Rumsfeld, the Court also rejected the Bush administration’s contention that Congress had stripped the Court of jurisdiction over detainee appeals in a law it passed last December. That law, the Detainee Treatment Act, does not apply to cases pending when it passed, the high court said.

“In undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction,” Justice John Paul Stevens wrote in the majority opinion. Stevens announced the decision Thursday at the Court.

Salim Hamdan, a Yemeni citizen, has been detained at Guantánamo Bay for the past four years. A driver for al Qaeda leader Osama bin Laden, he was charged with conspiracy to commit terrorist acts, and challenged the constitutionality of the military commission that was about to try him. Stevens said conspiracy alone was not the kind of violation of the law of war that should be tried by a military commission.

The Stevens opinion did not foreclose other methods of dealing with Hamdan or the other 450 Guantánamo detainees, suggesting that they could be tried in standard military courts-martial. He also indicated the commissions could be acceptable if Congress explicitly authorized them. Several members of Congress on Thursday indicated they would introduce legislation to respond to the Court’s decision, and President George W. Bush indicated he would work with them.
RELATED STORIES
• High Court Skeptical of Detainee Law (March 28, 2006)

• Legal Elite Fight Bush on Detainees (March 27, 2006)

• Enemy Combatant Case at High Court (September 26, 2005)

• Hamdan v. Rumsfeld (U.S. Court of Appeals for the D.C. Circuit opinion)

• High Court Says No to Accused Terrorist (March 9, 2005)

• Military Commissions and the War on Terror (Package of stories)


“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,” the president said at the White House. “The American people need to know that the ruling, as I understand it, won’t cause killers to be put out on the street.”

Sen. John Cornyn (R-Texas), who supported the military commissions, said the Court “opened the door to a legislative remedy, and as Congress plays a key role in this debate, we’ll work with the administration to reach a solution.” Cornyn also emphasized that the ruling did not question the administration’s power to detain terrorists. “We’re not talking about simple criminals,” added Cornyn. “These detainees include the most violent terrorists in the world.”

Administration officials said Thursday afternoon that they were studying the ruling and had not decided what course of action to pursue. “There is no particular direction we’re headed in right now except to review the decision and consider all options available to us and Congress,” said one senior administration official.

Stevens’ summary of his 73-page decision triggered angry dissents, read from the bench by Justices Antonin Scalia and Clarence Thomas. For 30 minutes, spectators in the Court chamber saw a dramatic display of tensions between the moderate and conservative wings of the Court.

For Thomas, it was the first time he had read from a dissent in his 15 years on the high court. Scalia made his pique apparent by departing from the tradition that, when justices dissent, they end their opinions by saying, “I respectfully dissent.” Scalia’s written dissent omits “respectfully,” and when he read from his dissent from the bench, he said, “I vigorously dissent.” Justice Samuel Alito Jr. also dissented, but he used the word “respectfully,” as did Thomas.

Justice Anthony Kennedy was the key vote in the decision, joining most but not all of Stevens’ opinion, but giving Stevens the majority he needed on its major points.

“Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis,” Kennedy wrote. “The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.”

Chief Justice John Roberts Jr. did not participate in the case because he joined the ruling against Hamdan when he sat on the D.C. Circuit, before he joined the Supreme Court last year.

Even though Roberts was not in the case, the Hamdan decision was viewed as a test of whether the new Roberts Court would look at terrorism cases differently or follow the recent pattern of skepticism of executive power — a path charted in part by now-retired Justice Sandra Day O’Connor.

In a nod toward O’Connor, Justice Stephen Breyer in a concurrence wrote, “The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.’ ” The “ blank check” phrase was drawn from O’Connor’s opinion in Hamdi v. Rumsfeld, a 2004 decision that also trimmed back executive power.

“The post-Rehnquist Court continues to be engaged in policing the powers of the executive,” said an elated Deborah Pearlstein of Human Rights First.

“The democratic institutions in this country are stepping forward to take their power back from a president that has tried to seize it the past five years,” said Barbara Olshansky of the Center for Constitutional Rights, which represents roughly 200 Guantánamo detainees.

The ruling also rejected the administration’s argument that the post-911 Authorization of Use of Military Force that Congress passed gave the administration all the authority necessary to create the military commissions.

“At the broadest level, the Court has rejected the basic legal theory of the Bush administration since 9/11 — that the president has the inherent power to do whatever he wants in the name of fighting terrorism without accountability to Congress or the courts,” said Covington & Burling partner David Remes, a leading strategist in the challenge to the commissions.

At 86, Stevens is the Court’s oldest and longest-serving justice. His decision contained echoes of post-World War II decisions issued close to the time when he was a law clerk for Justice Wiley Rutledge, in 1947 and 1948.

“Stevens must have felt proud and honored to vindicate the views of his former boss and mentor,” said University of Oklahoma College of Law professor Joseph Thai, who has written on Stevens’ role as a law clerk in the postwar Court.


Tony Mauro can be contacted at [email protected]. Jason McLure can be contacted at [email protected].

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