WASHINGTON – The Supreme Court Thursday struck down the military commissions President Bush established to try suspected members of al-Qaida, emphatically rejecting both a signature Bush anti-terrorism measure and the broad assertion of executive power upon which the president has based it.
Brushing aside administration pleas not to second-guess the commander-in-chief during wartime, a five-justice majority ruled that the commissions, which were first outlined by 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 Convention.
As a result, no military commission 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 doing for more than four years: operate the commissions by the rules of regular courts-martial, or ask Congress for specific permission to proceed differently.
“(I)n 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.
While the decision addressed only military commissions, legal analysts said its skeptical view of presidential power could be applied to other areas such as warrantless wire-tapping, and that its invocation of the Geneva Conventions could pave the way for new legal claims by Guantanamo detainees.
The court’s ruling now shifts the spotlight to Congress, whose members face re-election this year and have largely avoided military commissions since Sept. 11, 2001, because of the issue’s 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 the concerns of the critics had penetrated deeply at 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,” Breyer wrote.
“The Constitution places its faith in those democratic means,” Breyer concluded. “Our Court today simply does the same.”
The other members of the majority were Justices Anthony Kennedy, David Souter and Ruth Bader Ginsburg.
Perhaps the only silver lining for the administration was that the ruling did not affect the government’s authority to keep terrorism prisoners at Guantanamo Bay, Cuba, or elsewhere, a point 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.”
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