Court rules on gitmo

[Mavdog]

I anticipate the bush group will try to find some way around this ruling. one has to wonder if all this effort in getting around the law had been directed at working within the law how much more progress would have been acheived.
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Court rejects tribunals
Bush's military order went too far, justices rule
12:26 AM CDT on Friday, June 30, 2006
By CHARLES LANE / The Washington Post

WASHINGTON – The Supreme Court on Thursday struck down the military commissions President Bush established to try al-Qaeda suspects, emphatically rejecting both a signature Bush anti-terrorism measure and the broad assertion of executive power on which the president based it.

Brushing aside the administration's pleas not to second-guess the commander in chief during wartime, a five-justice majority ruled that the commissions, which were first outlined by Mr. Bush in a military order on Nov. 13, 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions.

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As a result, no military tribunal can try Salim Ahmed Hamdan – the former aide to Osama bin Laden whose case was before the justices – or anyone else, unless the president does one of two things he has resisted for more than four years: operate the commissions by the rules of regular courts-martial or ask Congress for specific permission to proceed differently.

"[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.

The decision addressed only military commissions. But legal analysts said that its skeptical view of presidential power could be applied to other areas such as wiretapping without warrants, and that its invocation of the Geneva Conventions could pave the way for new legal claims by detainees held at the U.S. base in Guantánamo Bay, Cuba.

The court's ruling shifts the spotlight to Congress, whose members face re-election this year and have largely avoided the topic of military commissions since 9/11 because of its political uncertainties. The invitation for the president to turn to Congress was extended in a short concurring opinion by one of the justices in the majority, Stephen Breyer, who made it clear that critics' concerns had penetrated deeply into the court.

"Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine – through democratic means – how best to do so," Justice Breyer wrote.

"The Constitution places its faith in those democratic means," he concluded. "Our Court today simply does the same."

The other members of the majority were Justices Anthony Kennedy, David Souter and Ruth Bader Ginsburg.

Bush's response
Perhaps the only silver lining for the administration was that the ruling did not affect the government's authority to keep terrorism detainees at Guantánamo Bay or elsewhere, a point Mr. Bush emphasized in his reaction to the decision. "We take the findings seriously," he said. "The American people need to know that this ruling, as I understand it, won't cause killers to be put out on the street."

But the court's decision was a setback for the administration. The White House's approach to the war on terrorism has been sent back to the drawing board in dealing with hundreds of people suspected of being members of the Taliban and al-Qaeda – at a time when it is under mounting international pressure to shut down Guantánamo.

This is not the situation the president envisioned when he unveiled the commissions as a tough-minded alternative to the civilian trials that the Clinton administration had used against terrorists. As first outlined in 2001, the commissions did not give defendants a presumption of innocence or guarantee a public trial.

Yet the swift and certain punishment that supporters of the commissions expected has not materialized. The commissions quickly became mired in questions about what many saw as their lack of due process for defendants and about the unilateral way in which Mr. Bush had created them.

Though the Defense Department has modified commission procedures in favor of the accused, military and civilian lawyers continue to object that defendants have no right to be present for the entire trial or to see all of the evidence against them. So far, not a single case has been decided.

Sharp dissent
Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented. Justices Scalia and Thomas read their dissents from the bench, a demonstration of their strong disapproval of the court's decision. Justice Scalia argued that the court should have stayed out of the case because of a law Congress passed late last year circumscribing the appeal rights of military commission defendants.

Justice Thomas said the court's majority "openly flouts our well-established duty to respect the Executive's judgment in matters of military operations and foreign affairs."

Chief Justice John Roberts did not participate because he served on the three-judge appeals court panel whose ruling upholding the commissions was under review.

In the courtroom on Thursday, the chief justice sat silently in his center chair as Justice Stevens, sitting to his immediate right as the senior associate justice, read from the majority opinion. It made for a striking tableau on the final day of the first term of the Roberts court: the young chief justice, observing his work of just a year earlier taken apart point by point by the tenacious 86-year-old Justice Stevens.

Though Justice Stevens, the most liberal member of the court, has sometimes employed sharp rhetoric against the Bush administration in other cases, he read a summary of his 73-page opinion Thursday in a somber, seemingly deliberately low-key manner. The written version seemed designed to pick apart the Bush case for the commissions rather than denounce it.

An existing standard
At the heart of Justice Stevens' reasoning was the observation that an existing statute, the Uniform Code of Military Justice, already prescribes broad rules for military commissions, saying that their procedures must track those of courts-martial unless doing so would be impractical.

But the administration's commissions, Justice Stevens noted, do not meet this standard, since they deprive defendants of protections that are basic to the courts-martial. The administration had cited special dangers involved in fighting terrorism, but Justice Stevens concluded that "nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case."

Additionally, Common Article 3 of the Geneva Conventions, a provision that guarantees "minimum" protections for detainees, applies to the war against al-Qaeda and is thus a part of the "law of war," Justice Stevens wrote.

This means that terrorism suspects benefit from Common Article 3's prohibition on trials by anything other than "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Since they were not properly authorized by Congress and do not match court-martial rules, Mr. Bush's military commissions do not qualify, Justice Stevens wrote.

Legal analysts said that the court's opinion could lead to a challenge to the National Security Agency's domestic surveillance program because wiretapping is covered by a pre-existing federal statute, the Foreign Intelligence Surveillance Act – just as military commissions were, in the court's view, covered by the Uniform Code of Military Justice.

"The same reasoning would seem to apply to the NSA case, because the argument that the authorization to use military force enables them to ignore FISA goes down the drain," said Joseph Onek, senior counsel at the Constitution Project, a Washington-based civil liberties organization that opposed the commissions.

[dude1394]

Yea we should have brought all of these terrorists into our legal system and gone through the crap we went through with the 19th hijacker.

Should have already military tribunal'd them, sentenced them to life in prison and been done with it.

[Mavdog]

Originally Posted by dude1394

Yea we should have brought all of these terrorists into our legal system and gone through the crap we went through with the 19th hijacker.

Should have already military tribunal'd them, sentenced them to life in prison and been done with it.

I'm surprised you even support their right to a trial