High court says tribunals were illegal

WASHINGTON — The Supreme Court ruled Thursday that President Bush overstepped his constitutional authority by creating military tribunals for prisoners at Guantánamo Bay, Cuba.

The 5-3 decision, written by Justice John Paul Stevens with an important concurrence by Justice Anthony Kennedy, essentially said the tribunals violated U.S. law and the Geneva Conventions of 1949 because they didn't provide the safeguards that either civilian or military courts required.

The ruling overturned an appeals-court judgment that the tribunals were lawful. The case, Hamdan v. Rumsfeld, involves Salim Ahmed Hamdan, 36, a Yemeni the government believes was Osama bin Laden's driver and bodyguard in Afghanistan. He has been in jail since 2002, when he was captured and sent to Guantánamo.

Once Bush decided Hamdan should be tried by military tribunal, the detainee sued, challenging the president's claim of authority.

Hamdan said that since he was being tried for conspiracy — not a violation of the laws of war — he couldn't be subject to a military tribunal. He also said the tribunals the president set up violated basic procedural rules in military and civilian law.

A district court sided with Hamdan, but the U.S. Circuit Court of Appeals for the District of Columbia reversed the ruling.

The high court on Thursday rejected all the government's arguments regarding Hamdan.

"The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ (Uniform Code of Military Justice) and the four Geneva Conventions signed in 1949," Stevens wrote.

The justices pointed out that Congress could have authorized the president to conduct proceedings, but it didn't.

Stevens' and Kennedy's opinions relied heavily on the significance of constitutional restraints on executive power and the important role that the courts and Congress must play in that regard, even in times of war.

Kennedy was explicit Thursday about the dangers he thought the president's unilateral actions in the Hamdan case posed.

"Concentration of power puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution's three-part system is designed to avoid," he wrote. "It is imperative, then, that when military tribunals are established, full and proper authority exists for the Presidential directive."

Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer joined Stevens and Kennedy to form the court majority. Chief Justice John Roberts took no part in the case because he previously had ruled on it as an appellate judge.

Justice Antonin Scalia dissented strongly, saying the court had no jurisdiction to hear the case. A 2005 law that prevented Guantánamo detainees from appealing their status in federal courts barred the justices from getting involved, he said.

Justice Clarence Thomas penned a nearly 50-page dissent, objecting to the court's decision to second-guess the president. He called the ruling "so antithetical to our constitutional structure that it simply cannot go unanswered."

Thomas read part of his dissent aloud from the bench, the first time he has done that in his 15 years at the high court.

Justice Samuel Alito wrote a dissent arguing that the tribunals were legal.