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Supreme Court Rules Against Bush on Guantanamo


This is MORNING EDITION from NPR News. I'm Steve Inskeep.


And I'm Susan Stamberg. The Supreme Court today ruled against President Bush on the war crime trials of Guantanamo detainees. The Justices ruled five to three that the president overstepped his authority in ordering the trials, which the court says are illegal under U.S. law and the Geneva conventions. NPR's Nina Totenberg joins us from the court. Nina, tell us what the justices said that the president did wrong.


Well, the big thing he did wrong was to not go to Congress to ask for permission to have these tribunals and to use certain procedures. Justice John Paul Stevens, writing for the five justice majority, has issued a very lengthy opinion, some 73 pages. And there are impassioned dissents from Justices Scalia and Thomas, who both spoke from the bench this morning. Essentially, Justice Stevens said that the - yes, the president can order military tribunals under the uniform code of military justice, but unless he gets specific authorization from Congress or makes some sort of showing of necessity - which he didn't do here - he can't deviate in a substantial way from the way military trials are normally conducted. And the president has done that here.

He has set up a system, Justice Stevens pointed out, where the accused can be excluded from the trial, doesn't know the evidence against him in some cases. In fact, as Justice Stevens observed, in this case - this case was involving Osama bin Laden's driver - he had already been excluded from just the jury selection in his trial

The way this system is set up has given the appointing - what's called the appointing authority, Justice Stevens said - such extraordinary power that the president - through his appointed individuals - ends up sort of as judge, jury, and executioner. And he can't do that, certainly not without Congressional authority, which he doesn't have.

STAMBERG: Yeah, but now Nina, does this mean there will be no trials for the detainees at Guantanamo?

TOTENBERG: Well, it may mean that, unless the president now goes to Congress to get specific authority. One of the things that has happened in this case is that Congress has basically abdicated any responsibility to set up procedures. There haven't been hearings, there haven't been any, you know, any attempt to do that. The president hasn't suggested a model. Congress hasn't had hearings on any sort of models, and that may now have to happen. What the court said is you can detain these people as long as hostilities continue, but you can't impose criminal punishment based on a trial system that violates our laws.

STAMBERG: Yes, and now at the center of this case, a Yemeni citizen - as you said, he was bin Laden's driver. His name is Salim Ahmed Hamdan. Tell us about this case, his case.

TOTENBERG: Well, he was charged with conspiracy to violate the laws of war. And Justice Stevens said - writing for himself and three other justices a plurality - that even that charge is a violation of the Geneva Conventions, because the Geneva Conventions don't recognize conspiracy, that they require overt acts, and that nothing that Hamdan is charged with doing - driving Osama bin Laden, helping to move equipment around and military supplies - that none of that is considered an overt act that is a violation of the laws of war.


TOTENBERG: But that's just a plurality of the court. Justice Kennedy didn't join that part of the opinion. He didn't agree with it, he just said I don't think we have to go that far yet.

STAMBERG: Yeah. Now, we only have eight justices voting on this. How come?

TOTENBERG: Because Chief Justice Roberts participated in this case when he was at the lower court, the court of appeals. And that judgment was reversed by the United States Supreme Court today.

STAMBERG: So he had to recuse himself...


STAMBERG: ...in this one. Well, thank you very much. NPR's legal affairs correspondent, Nina Totenberg.

TOTENBERG: Thank you.

STAMBERG: To recap, the Supreme Court ruling against the Bush administration and its proposed military tribunals for detainees at Guantanamo Bay. The court said the president overstepped his authority, and that the tribunals are illegal under U.S. law and the Geneva conventions. We'll have more on this court decision later this hour. Transcript provided by NPR, Copyright NPR.

Nationally renowned broadcast journalist Susan Stamberg is a special correspondent for NPR.
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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