President George W. Bush faced stark and difficult choices yesterday after the U.S. Supreme Court ruled that special military tribunals created to try terrorism suspects imprisoned at Guantanamo Bay were illegal under both U.S. law and the Geneva Conventions.
The long-awaited decision won't close Guantanamo or the other secret prisons run by the Bush administration. But it will force the President to confront the reality that his conduct of the war is under relentless attack at home and abroad and must be reshaped to conform with the rule of law.
With the tribunals outlawed, the Bush administration is left with few options, none of them very appealing. It could charge detainees with war crimes and try them in military courts martial, or pursue civilian charges in federal courts. Both would require meeting much tougher standards of evidence and far greater public scrutiny. Or the administration could seek to persuade Congress to pass laws legitimizing special military tribunals that meet the standards set yesterday by the court.
Omar Khadr, the only Canadian at Guantanamo and one of only a handful charged under the now-outlawed military tribunals, "returns to the status of an uncharged detainee," said Muneer Ahmad, his lawyer. He urged the Canadian government to intervene. "It's untenable to let one of its citizens languish any longer," he said.
In effect, the court ruled for Osama bin Laden's driver, Salim Ahmed Hamdan, a Yemeni, finding that he has fundamental legal rights that can't be swept aside, and against the President of the United States, who argued that the war on terrorism is so unlike previous conflicts that the previous laws don't apply.
"This marks a high-water mark in American history," said Lieutenant-Commander Charles Swift, Mr. Hamdan's military lawyer, who challenged the controversial tribunals created outside the U.S. judicial system to try detainees held at the U.S. naval base in Cuba.
"It means that we can't be scared out of who we are, and that's victory, folks," an exultant and uniformed LCdr. Swift said after the court's ruling. He acidly noted that he, like the commander-in-chief, was duty-bound to uphold the Constitution.
A chastened Mr. Bush said he would abide by the ruling.
"The American people need to know that this ruling, as I understand it, won't cause killers to be put out on the street. People got to understand that we're in a war on terror, that these people were picked up off of a battlefield, and I will protect the people and at the same time conform with the findings of the Supreme Court," he said.
The White House was left struggling to find some solace in the ruling. "Nobody gets a get-out-of-jail-free card," said Tony Snow, spokesman for the President. "This will not mean closing down Guantanamo."
In fact, if the Bush administration opts to treat detainees as ordinary prisoners of war, with all the status and protections afforded by the Geneva Conventions, then it can hold them indefinitely, or until the war ends, without charge. Denying detainees Geneva status has been U.S. and Canadian policy based on the claim that they were not lawful combatants fighting in uniform for a nation state.
Yesterday's ruling rejected, at least in part, that claim.
Detainees are "entitled to [the Geneva] Conventions' full protections until adjudged, under it, not to be a prisoner of war," the court said.
Mr. Khadr's lawyer said the court did more than just outlaw military tribunals for the 10 detainees charged to date.
"It reined in the executive branch after years of it running amok," Mr. Ahmad said. "As such, it's a stinging rebuke to the administration."
Civil-rights groups hailed the ruling. "The government's misuse of military tribunals is consistent with a larger pattern of abuse of power," said Steven Shapiro, the national legal director for the American Civil Liberties Union. "This is an administration that prefers to act outside the law and without judicial scrutiny. The court properly rejected that anti-democratic view."
In the majority ruling, Justice John Paul Stevens wrote: "We conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate the international agreement that covers treatment of prisoners of war, as well as the Uniform Code of Military Justice."
But dissenting justices, including Clarence Thomas, were sharply critical of the majority, in effect accusing them of being soft on terrorism. Reading part of his dissent from the bench, the first time he has every done so, he rejected the conclusion of "this court [that] would hold that conspiracy to massacre innocent civilians does not violate the laws of war. This determination is unsustainable," Justice Thomas said.
"We are not engaged in a traditional battle with a nation state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of Sept. 11, 2001."
That argument -- essentially Mr. Bush's justification for setting up Guantanamo, allowing dubious methods of interrogation, and using executive authority in wide-ranging ways -- was rejected by most of the justices, at least with respect to military tribunals.
In any event, the fundamental thrust of the court's ruling sweeps aside the Bush administration's central argument that terrorism suspects aren't entitled to normal trials because they don't qualify as legitimate combatants as defined by the Geneva Conventions.
