Bush gets it from his SC: Guantanamo terror trials illegal

It was also the most significant rebuff to date to Bush’s effort to expand presidential power in the course of waging that struggle. And the reasoning adopted by the majority called into question the justification Bush has used for other programs that have come under Congressional scrutiny, like the warrantless wiretapping conducted by the National Security Agency.

In a concurring opinion, Justice Anthony M. Kennedy said the administration had failed to prove a “practical need” that would justify trying the detainees in courts that provided a lesser standard of justice than Congress had authorized.

The lawsuit brought by the petitioner in the case, Salim Ahmed Hamdan, a former driver for Osama bin Laden who was captured in Afghanistan in 2001, did not challenge his detention in the prison camp in Guantanamo Bay, Cuba, and does not affect the government’s ability to hold prisoners there.

But while the court’s ruling represented a decisive rejection of the administration’s approach to the handling of terror suspects, legal experts said it might also open the way out of a legal morass created by contradictory court rulings and inconsistent policies.

The justices appeared to indicate that the government had a choice of trying the detainees in traditional courts-martial or of seeking Congressional approval of an alternative system. “Nothing prevents the president from returning to Congress to seek the authority he believes necessary,” Justice Stephen Breyer wrote in his own concurring opinion.

Bush, in preliminary remarks after what he called a “drive-by briefing” on the ruling, hinted at such an outcome, saying “the Hamdan decision was the way forward,” and that he would work with Congress to “have a tribunal to hold people to account” while meeting the court’s directive.

Justice Stevens was joined in parts of the majority ruling by Justices David H. Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Breyer and Justice Kennedy both wrote concurring opinions.

Justices Antonin Scalia, Clarence Thomas, and Samuel J. Alito Jr. dissented. Chief Justice John G. Roberts Jr. did not take part in the case, since he had ruled in favor of the government as an appeals court justice last year.

Justice Thomas took the unusual step of reading his dissent from the bench, the first time he has done so in his 15 years on the court. He said that the ruling would “sorely hamper the president’s ability to confront and defeat a new and deadly enemy.”

The majority opinion rejected the administration’s claims that the tribunals were justified both by Bush’s inherent powers as commander in chief and by the resolution passed by Congress authorizing the use of force after the Sept. 11. There is nothing in the resolution’s legislative history “even hinting” that such an expansion of the president’s powers was considered, he wrote.

“The only reason offered in support of that determination is the danger posed by international terrorism” he said. “Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.” Justice Scalia responded in scathing language to the majority’s reasoning on this point. He quoted Bush’s order creating the tribunals, which declared them to be necessary “for the effective conduct of military operations and to prevent terrorist attacks.”

“It is not clear where the Court derives the authority—or the audacity—to contradict this determination,” Justice Scalia wrote.

JOHN O’NEIL & SCOTT SHANE