GUANTANAMO JUSTICE

The U.S. Supreme Court Thursday strongly rejected the Bush administration’s plan to try detainees at Guantanamo Bay in secret military tribunals. Such tribunals violate both American military law and the Geneva Conventions, the court concluded in a 5-3 decision. After the decision President Bush said he would work with Congress to “find a way forward.” That way is likely to be difficult.

Simply closing the prison at Guantanamo and sending the 400 prisoners back to their home countries, where many may be tortured or killed, is not a solution. Neither, however, is encouraging Congress to rewrite laws to give the president more leeway in detaining and trying prisoners.

This case involves Salim Ahmed Hamdan, a former driver for Osama bin Laden, who was captured in Afghanistan in November 2001 and taken to the U.S. prison in Cuba where he has been held since 2002.

Two years ago, in a case challenging indefinite detention without charges being brought, the court said that detainees were entitled to a judicial process that met “minimum legal standards.” Mr. Hamdan’s case challenged whether the tribunals, where he was not allowed to be present and evidence could be withheld from his lawyer, met that standard. The court said Thursday that it did not.

“Even assuming that Hamdan is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the executive nevertheless must comply with the prevailing rule of law in under-taking to try him and subject him to criminal punishment,” Justice John Paul Stevens wrote in the majority opinion. The structure and proceeding of military tribunals at Guantanamo violate the Uniform Code of Military Justice, which governs the American military’s legal system, and the Geneva Conventions, he wrote.

Chief Justice John G. Roberts Jr. did not participate because he had ruled in favor of the government as an appeals court justice last year. That ruling was overturned by the high court.

The dissenting justices said the ruling would “sorely hamper the president’s ability to confront and defeat a new and deadly enemy.” The majority properly concluded that confronting that enemy must be done within the bounds of the law.

The justices also rejected the argument that Congress, through the Detainee Treatment Act passed last year, stripped the court of jurisdiction over habeas corpus appeals by detainees at the prison camp.

The ruling offers the Bush administration a good way out of the Guantanamo problem, says Michael Greenberger, who teaches the law of counter terrorism at the University of Maryland School of Law. For those who want to close the prison – which President Bush on several occasions has said is his desire – the ruling encourages the detainees to be treated as prisoners of war who can be tried in military courts martial or civilian courts.

Since courts martial are done every day and there are established rules and procedures to follow, this could be an expeditious process even given the number of detainees, Professor Greenberger says. Some detainees are likely to be returned to their home countries under agreement currently being negotiated by U.S. officials.

The wrong solution would be for Congress to write a new law permitting the endless detentions without access to a court and the military tribunals that the Supreme Court just ruled were illegal.