Guantanamo Tribunals Ruled Illegal

The U.S. Supreme Court has at last let the dust settle on the controversial decision by the Bush administration to try terrorism suspects by military commissions, without due process of law. In the aftermath of 9/11, President George W. Bush assumed exceptional powers, refusing to accord any of them with the traditional prisoner of war (POW) status. Instead, His administration invented a completely new category, qualifying all arrested suspects to be "unlawful combatants" or "enemy combatants."

These prisoners, the Bush administration explained, are too dangerous to fall under any of the categories of prisoners spelled out in the Geneva Conventions that govern the laws of warfare. The administration further explained that as a result, these suspects couldn't be tried in normal constituted courts using due process of law.

The Supreme Court passed the historic verdict in response to a challenge from the ex-driver of Osama bin Laden, Salim Ahmed Hamdan, who claimed his trial was in outright violation of the Geneva Conventions. In his challenge, he demanded to be tried in a civilian court instead of before a military panel. The court ruled in his favor.

In its celebrated verdict, the court said:

"Whether or not the government has charged Hamdan with an offence against the law of war, cognizable by a military commission, the commission lacks power to proceed ... because its structure and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949 ... Even assuming Hamdan is a dangerous individual ... the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment."

Five of the eight judges ruled in the affirmative; three others voted against. But as it stands in common law jurisdiction, majority judgment carries the day.

It is suspected that the choice of constructing the detention facility in Guantanamo was purposely intended to evade any existing law. Guantanamo is in Cuban territory, but the U.S. has autonomy to operate there. The resulting confusion is that neither Cuban nor U.S. domestic law can be directly invoked.

As a result, Guantanamo came to incarnate a land where there is no law. Most of the 460 inmates remaining in the facility who are suspected to have links to al-Qaida or the Taliban have never been charged. More so, there are allegations of serious torture by U.S. servicemen. Even before the verdict, many the world over already considered Guantanamo to be a mockery of U.S. justice.

The court's decision indicated that the tribunals were illegal in that they were not set up with the approval of the congress. More so, the court ruled that they denied the basic human rights of the defendants, most importantly the right of a defendant to hear all evidence levied against him, and the right to be present at his own trial.

"The court's conclusion ultimately rests upon a single ground: Congress has not issued the executive a blank check," the court said, adding that the president lacked the powers to create the military commissions, and that he had overstepped his authority.

The three dissenting judgments came from Antonin Scalia, Clarence Thomas and Samuel Alito, generally considered the most conservative of the justices.

Justice Thomas, for example, wrote that "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous."

The court decision, however, did not imply the closure the Guantanamo facility. It only determined it to be illegal under domestic and international law.

Speaking shortly after the ruling, Bush, though welcoming the verdict, indicated that he would explore other avenues to push forth for the commissions.

"We will seriously look at the findings, obviously. And one thing I'm not going to do, though, is I'm not going to jeopardize the safety of the American people. People have got to understand that. I understand 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 ... The ruling, as I understand it, won't cause killers to be put out on the street," Bush said.