U.S. military tribunals in Guantanamo Bay lack Congressional authorization, violate U.S. law and Geneva Conventions

June 29, 2006 The United States Supreme Court has ruled that the military commissions set up in the Guantanamo Bay detainment camps in Cuba, to try terrorist suspects are not authorized by the Congress’ Joint Resolution authorizing military action in Afghanistan, and that the President does not have the legal authority to establish military commissions without express authorization from Congress. The court also found the military commissions, as presently administered, to be in violation of the Geneva Conventions, to which the United States is a party.

The case, titled Hamdan v. Rumsfeld, focused on an Yemeni citizen who is alleged to have been a bodyguard and driver for Osama bin Laden and was captured in Afghanistan in November 2001 and held at Guantanamo since June 2002.

On November 13, 2001, President Bush issued a Military Order declaring that military commissions would try foreign terrorist suspects for alleged war crimes. These military commissions would differ from traditional courts of law in that: they would allow hearsay evidence; would be allowed to consider classified evidence during closed sessions, without providing the suspect a chance to hear the evidence or defend himself against it; and they would be allowed to use evidence coerced through torture.

The court denied the government's assertion that it lacks authority to review decisions by the D.C. Circuit Court because the Detainee Treatment Act of 2005 only strips the Supreme Court of appellate jurisdiction over cases filed after its enactment.

Turning to the merits of the petitioner, it found that the crime Hamdan is charged with - conspiracy - is not a crime that violates the law of war and thus should not be tried by a military commission.

The court conceded that Congress has the prerogative to establish commissions such as the one desired by the Bush administration but found that it has not yet done so. The Supreme Court ruled 5-3 with Associate Justices Breyer, Ginsburg, Stevens, Souter and Kennedy in the majority; Alito, Thomas, Scalia dissented and Chief Justice Roberts recused (he had earlier sided with the government on the appellate level).

Nine other detainees face charges before the military commissions. The Department of Defense had previously announced that it planned to charge an additional 60 of the 460 detainees remaining at Guantanamo before military commissions.

Reactions
Lt. Cmdr Charles Swift, Hamdan's military counsel who filed the request, said: "All we wanted was a fair trial and we thank the Supreme Court. Yes it is a rebuke for the process. [...] It means we can't be scared out of who we are."

President George W. Bush said that his administration "will work with Congress" to address the issue and added 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".

Senator Patrick Leahy (D-VT) said that "for five years, the Bush-Cheney administration has violated fundamental American values, tarnished our standing in the world and hindered the partnerships we need with our allies. This arrogance and incompetence have delayed and weakened the handling of the war on terror, not because of any coherent strategic view it had, but because of its stubborn unilateralism and dangerous theory of unfettered power".

Senator John Warner (R-VA) said he doesn't regard the decision as "a blow" but rather as "an interpretation of the law".

Senate Majority leader Bill Frist (R-TN) promised to introduce a bill after the July 4 holiday recess that would allow Congress to re-establish the military commissions.

"I will introduce legislation, in consultation with the Administration and my colleagues, that authorizes military commissions and appropriate due process procedures for trials of terrorist combatants," Frist said.

If a Frist bill is successful in becoming congressional law, along with backing from the executive branch, it would have the effect of over-turning the Supreme Court ruling.