This copy is for your personal, non-commercial use only.

A Supreme Rebuke
Bush Loses Guantanamo Case
by MARJORIE COHN

In the most significant rebuff to George W. Bush’s assertion of executive power since he declared his "war on terror," the Supreme Court called a halt to Bush’s kangaroo courts at Guantánamo Bay.

Justice Stevens wrote for the 5-3 majority, "We conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the [Uniform Code of Military Justice] and the Geneva Conventions." Justices Ginsburg, Breyer, Souter and Kennedy joined Stevens in the majority opinion.

One of Hamdan’s lawyers, Georgetown University Law School Professor Neal Kayta, called the ruling a "rebuke" to a system of "fake courts."

Shafiq Rasul, speaking for himself and two other former Guantánamo detainees, said, "We are ecstatic at today’s outcome. This is another step in our collective efforts to see that those we left behind are treated fairly under international law."

Michael Ratner, president of the Center for Constitutional Rights, which represents nearly half of the Guantánamo detainees, was "thrilled" by the Court’s decision. "What this says to the administration is that you can no longer decide arbitrarily what you want to do with people. It upheld the rule of law in this country and determined that the executive has gone beyond the constitution and international law."

In November 2001, Bush set up military commissions to try Guantánamo prisoners charged with crimes. Of the more than 700 men and boys who have been housed there in the last four and half years, only 10 have been charged with criminal offenses.

Bush charged Salim Ahmed Hamdan, Osama bin Laden’s driver, with one count of conspiracy "to commit . . . offenses triable by military commission." Before yesterday’s landmark ruling on his petition for a writ of habeas corpus, Hamdan was awaiting trial in a military commission.

The Bush administration filed a motion to dismiss Hamdan’s challenge to the military commission after Congress passed the Detainee Treatment Act on December 30, 2005. In the DTA, Congress purported to strip US federal courts of jurisdiction to hear habeas corpus petitions filed by Guantánamo detainees.

But the Court held Congress did not intend to deny federal court jurisdiction to detainees like Hamdan, whose cases were already pending on the date the DTA was enacted.

Although this is a narrow ruling, leaving open the door for Bush to argue that Congress effectively denied other detainees the right to file future challenges to their confinement, the Court clearly stated it was reserving any decision on whether Congress could constitutionally deny a prisoner the right to federal habeas corpus jurisdiction.

Unlike the Uniform Code of Military Justice, Bush’s military commissions would allow a defendant to be convicted by evidence he never sees in a proceeding he cannot attend with evidence that does not meet federal evidentiary standards. This includes statements obtained by coercion. The majority held Bush failed to show it would be impracticable to furnish defendants in military commissions safeguards commensurate with those guaranteed by the UCMJ.

One of the most critical parts of the Court’s decision was its ruling that Common Article 3 to the Geneva Conventions applies to al Qaeda. Common Article 3 prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Article 3 Common requires that prisoners be treated humanely; it forbids outrages on personal dignity, in particular humiliating and degrading treatment. The Pentagon had planned to eliminate any reference to Common Article 3’s protections from its interrogation regulations. But the Supreme Court has now affirmed that all prisoners, not just prisoners of war, must be treated humanely. This is bound to put a severe crimp in the Bush administration’s cruel and torturous interrogations.

Arguing out of both sides of his mouth, Bush had maintained the Geneva Conventions didn’t apply to al Qaeda because they weren’t prisoners of war. But Bush also asserted that Common Article 3, which applies to conflicts "not of an international character," doesn’t apply to al Qaeda. The Court shot down that argument, holding that "the term ‘not of an international character’ is used in contradistinction to a conflict between nations.’" Bush can’t have it both ways.

Justice Kennedy, in a separate concurrence joined by Justices Souter, Breyer and Ginsburg, noted that Common Article 3 "is part of a treaty the United States has ratified and thus accepted as binding law." The target of recent conservative attacks for his willingness to cite treaties, Justice Kennedy was spot on here.  For while treaties are international law, they are also part of US law under the Supremacy Clause of our Constitution.

Interestingly Justice Alito, who filed a separate dissent from the Court’s decision, did not dispute the notion that Common Article 3 applies to al Qaeda, a proposition the Bush administration has strongly denied.

The Court also held that Congress’s Authorization for the Use of Military Force, passed shortly after the September 11, 2001 attacks, did not expand Bush’s authority to convene military commissions that do not comport with UCMJ safeguards. This is an important precedent that opponents of Bush’s warrantless surveillance of Americans can cite in opposition to administration claims that the AUMF authorizes the spying program.

Four justices – Stevens, Souter, Breyer and Ginsburg – notably cited Protocol I of the Geneva Conventions, Article 75. It incorporates trial protections, including the right to be tried in one’s presence. Although the US has not ratified Protocol I, they wrote, "it appears that the Government ‘regard[s] the provisions of Article 75 as an articulation of safeguards to which all persons in the hands of an enemy are entitled.’" Article 75, the four justices said, is "indisputably part of the customary international law."

The dissent by Justice Thomas shows that he continues to be the Bush administration’s toady.  In Hamdi v. Rumsfeld  two years ago, he said, "This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision." Yesterday, Justice Thomas wrote in his Hamdan dissent that the Court’s opinion "openly flouts our well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs."

In contrast, Justice Breyer’s concurrence harked back to the majority opinion in Hamdi, saying, "The [Hamdan] Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.’"

Most importantly, the Supreme Court reiterated that, "Nobody in enemy hands can be outside the law." Now Bush can no longer deny the Guantánamo detainees basic due process. This decision is a significant victory for justice and the rule of law.

MARJORIE COHN is a professor at Thomas Jefferson School of Law, president-elect of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists.