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U.S.: Military Tribunal Ruling Second Setback For Bush

Guantanamo Bay detention center (file photo) (AFP) WASHINGTON, June 30, 2006 (RFE/RL) -- The U.S. Supreme Court's decision that President George W. Bush exceeded his authority when he ordered military tribunals for the Guantanamo Bay detainees is the second such decision in two years against the tactics being used in the U.S.-led war on terror. The justice who wrote the five-to-three decision said the planned trials are illegal under both U.S. and international law, including the Geneva conventions. RFE/RL Washington correspondent Heather Maher asked Jack Beard, who was associate deputy general counsel in the Department of Defense from 1990-2004, what the ruling means.

RFE/RL: What exactly did the Supreme Court say today in its ruling?

Jack Beard: Like all Supreme Court decisions, it's often important to start with what they didn't decide. They did not say that military commissions cannot eventually try these individuals and they didn't say Guantanamo has to be closed down. What they did say is that the president wasn't authorized to set up these tribunals the way he did. And that if they were set up, they violated both U.S. law and international law.

RFE/RL: And how was Bush trying to set up these military commissions?

Beard: The administration has taken an expansive view of executive power in its effort to fight the war on terror, and chose, in doing that, to set up commissions with rules that were changing, in an effort to protect the secrecy of the information that was involved in these Al-Qaeda alleged cases. But in doing so, the president set up a commission that did not comport [comply] with the rules that would ordinarily apply to court marshals, and the Uniform Code of Military Justice, which Congress passed as part of its powers over military justice. And these commissions don't have some of the standard due process rights that you might find in court[s] martial, for instance, the ability of the defendants and their attorneys to have access to information. As a result of this, it didn't comply with the Uniform Code of Military Justice.

RFE/RL: One of the justices who ruled with the majority said the president did "not have a blank check" from Congress. What did he mean?

Beard: The president's argument that the authorization for the use of military force -- the legislation passed by Congress shortly after the 9/11 [September 11, 2001] attacks -- the argument that that authorized him to do this, was again struck down by the court. And that is the second time in the last two years that the court has told the president that that authorization for the use of force was not a blank check.

RFE/RL: By that you mean the 2004 case, Rasul v. Bush, in which the court ruled that foreign nationals imprisoned without charge at Guantanamo Bay were entitled to file lawsuits challenging their captivity in U.S. federal civilian courts?

Beard: Yes, and it's important to note the court [today] is not saying these people cannot continue to be detained or that there's such a thing as an enemy combatant. Rather, it's saying that due process rights do apply even to foreign nationals held in a facility that's not a U.S. territory per se, and as a result of this, due process rights that are traditionally crafted by the U.S. Congress have to be applied here.

There is a conflict -- an extraordinarily important one for American democracy -- between the courts, the Congress, and the president in this case. And the courts emphatically state they have a right to be involved. In fact, the first argument of the administration was that the court did not have jurisdiction, and the court did not go with that. So the court is making its statement, and it's also making a statement for the continuing role of Congress in these sorts of activities, and so you should expect to see the president go back to Congress and try to craft a military-commission system that more comports with due process and the sorts of traditional requirements that are applied to court marshals.

RFE/RL: What did Bush mean when, after hearing the ruling, he said that his administration is going to "work with Congress" to find a way forward?

Beard: The president and his many officers could have started this process by attempting to go to Congress and establish a system of rules tailored towards the trial of alleged Al-Qaeda operatives.

Instead of doing that, in an effort to fight the war as effectively as they could, or as freely as they could, they went ahead and argued that they had authorization already to do these sorts of commissions, that they didn't need any further authorization from Congress. That is not the case, according to the court, so if the administration wants to have a special rules with respect to secrecy, or special rules with respect to the attendance of the defendants in these proceedings, or any other procedures that deviate from court marshals that are already authorized by Congress, they're going to need to find a way to work with Congress to come up with a system that Congress approves.

Because Congress has power here, in addition to the president. And the argument that they had already given what power they had to the president in this area through the [2001] authorization of the use of military force did not prevail today for the court."

RFE/RL: In its 2001 vote to authorize military force, what specific powers did Congress give Bush?

Beard: Congress did not declare war in the traditional sense. Instead, it gave the president very broad powers to go forth and fight the individuals and organizations that were responsible for the 9/11 attacks. And the president has successfully used that authority in a very broad way before this case, arguing for instance that it authorized him to detain individuals -- including U.S. citizens -- without any further action by Congress.

And the court has been willing to go along with that, at least to a certain extent, agreeing that this did give him the considerable powers that Congress had -- their jointly controlled powers over the use of force and war -- but there's a limit to how far those rights and powers were granted in the authorization for the use of force."

RFE/RL: Secretary of Defense Donald Rumsfeld, along with others in the Bush administration, has said that because terrorists do not fight for a government, work within a formal army, and are not operating under international rules of warfare, the United States is also not bound to respect normal wartime conventions. Will this ruling change that doctrine?

Beard: In fact, the administration has tried to at least go through some of the processes of following international legal requirements. But their very broad and flexible interpretation of many of these rules is not going to be accepted by our courts and they're certainly not viewed favorably in the international community. For instance: the argument that Al-Qaeda is not your traditional combatant, or party to the Geneva Convention. Certainly there is a great deal of truth to that. But today the court went on to say that even if Al-Qaeda is not the traditional sort of enemy or a party to the Geneva Conventions, there are still portions of the Geneva Convention that would apply.

So it's not impossible for the president to engage in a policy that's strongly fights terror, but he's going to have to do it in a way that more closely comports to international law as understood by the U.S. Supreme Court and many other legal organizations and entities throughout the world.

RFE/RL: Why is the Bush administration so determined to keep these suspects out of the normal U.S. court system?

Beard: I would suggest that they would point to the [Zacarias] Moussaoui trial as an example of how difficult taking one of these individuals into our civil court system is, and how difficult it is for evidence related to the ongoing war on terror to be brought in to such a trial.

In fact in that case there was testimony being introduced, and questions about hearsay evidence, and all sorts question about classified information. So I think the administration is largely motivated by a desire to not compromise any of its efforts in the ongoing war on terror.

That would probably be the No. 1 reason why they would want to just turn these [detainees] over to the civilian court system. But on the other hand, as they are reminded by the court today, whatever process they take has to involve the sorts of due process rights that Americans expect of a democracy and that the world expects of the leader of democracy, the United States, to apply when it arrests people.