Washington – The Supreme Court declared Thursday that President Bush overstepped his authority in the war against terrorism, ruling that he does not have the power to set up special military trials at Guantanamo Bay without the approval of Congress.
In a 5-3 decision, the high court said the planned military tribunals lack the basic standards of fairness required by the nation’s Uniform Code of Military Justice and by the Geneva Conventions.
The ruling is the most sweeping legal defeat for the administration in the 5- year-old war on terrorism, and it rejects the president’s broad claim that the commander in chief can make the rules during an unconventional war.
Since 1929, the Geneva Conventions have set rules for the conduct of wars and the treatment of prisoners, but Bush and his top advisers had maintained that the rules did not apply to terrorists.
Justices John Paul Stevens, Stephen Breyer, Anthony Kennedy, David Souter and Ruth Bader Ginsburg were in the majority.
Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented. Scalia said the court had no authority to decide the case.
Chief Justice John Roberts took no part in the decision because he was on the U.S. Court of Appeals last year when the issue was considered, and he voted then to uphold the president’s special military trials.
The practical impact of Thursday’s decision may be limited.
The court said al-Qaeda suspects could be tried under the rules for courts-martial used by the U.S. military or under new rules passed by Congress.
The ruling does not free any of the accused terrorists, as the president noted shortly after the ruling, nor does it change the status of the several hundred detainees at the detention camp at Guantanamo Bay.
The opinion was delivered by 86-year-old Justice Stevens, the court’s last veteran of World War II.
He set forth a view of the Constitution in wartime that stood in sharp contrast to the one put forth by the president and his lawyers.
The Constitution gives Congress the power to make laws and set rules for handling wartime captives, Stevens said. It says Congress shall “make rules concerning captures on land and water” and also says Congress shall define the “offenses against the law of nations.”
Despite that wording, the president contended that as commander in chief of the armed forces, he had the power on his own to decide how suspected terrorists would be held, how they were to be treated, how they would be tried and what offenses amounted to war crimes.
In November 2001, the White House issued an executive order announcing that the Pentagon would set up special military commissions to try al-Qaeda suspects. The president said that he did not need the approval of Congress and that the federal courts had no jurisdiction over the cases.
Moreover, the White House said the Geneva Conventions did not apply to terrorists because this was not a conflict between nations and their armies.
In the surprisingly sweeping decision, the justices rejected all of the key assertions made by the president and struck down the military commissions set up by the Pentagon.
Civil libertarians hailed the ruling as a repudiation of the president’s willingness to set aside established U.S. and international laws in the war against terrorism.
Bush said he plans to work with lawmakers.
“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,” he said.
Two key Senate Republicans, Lindsey Graham of South Carolina and Jon Kyl of Arizona, said they were disappointed with the decision but intended to pursue legislation.
“We believe the problems cited by the court can and should be fixed,” they said in a joint statement.
