Bush Vows to Pursue Detainee War Trials

President Bush said he will press Congress for a law specifically authorizing military tribunals for Guantanamo Bay detainees in response to today’s Supreme Court ruling.

After a Supreme Court decision overruling war crimes trials for Guantanamo Bay detainees, President Bush suggested Thursday he would seek Congress’ approval to proceed with trying terrorism suspects before military tribunals. “To the extent that there is latitude to work with the Congress to determine whether or not the military tribunals will be an avenue in which to give people their day in court, we will do so,” he said. “The American people need to know that the ruling, as I understand it, won’t cause killers to be put out on the street.”

Bush said little more, saying he had received only a “drive-by briefing” on the ruling just out earlier Thursday morning.

The Supreme Court decided that Bush’s proposed trials for certain detainees at the controversial U.S. prison in Cuba were illegal under U.S. law and international Geneva conventions. A separate opinion, written by Justice Stephen Breyer, appeared to invite Bush to go to Congress to seek the authority to change that, and Bush’s short answer indicated that is his intention.

The president declined to say whether the decision would prompt him to more quickly follow through on his promise to close the prison, as many world leaders and human rights groups have urged. “We will seriously look at the findings,” Bush said. “And one thing I’m not going to do, though, is I’m not going to jeopardize the safety of the American people. People 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.” [emphasis mine]

The right sentiment, methinks.

I should add, however, that SCOTUS didn’t demand that the inmates be released, merely that they could not be subject to military tribunals.

UPDATE: Anderson, commenting below, believes the last sentence above is overbroad. Here’s what Stevens actually wrote:

For the reasons that follow, we conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions. Four of us also conclude, see Part V, infra, that the offense with which Hamdan has been charged is not an “offens[e] that by . . . the law of war may be tried by military commissions.”

I suppose rather than “the inmates” and “they,” I should merely have referred to “Hamden” and “he.” The broader application of this ruling is not entirely clear, especially given a plurality ruling.

FILED UNDER: Congress, Law and the Courts, Terrorism, , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Andy Vance says:

    I will drive to my house tonight, and at the same time I will not run over any old ladies…again.

  2. Obviously the left will think that congress would turn Bush down or if not, this will create a groundswell of righteous indignation on the part of voters to change the majorities. I suspect that congress would pass the military tribunal legislation fairly quickly, largely on party lines with blue state republicans being balanced by red state democrats.

    But what if the senate decided to raise the stakes and hold impeachment hearings on the supreme court justices failing to follow the 2005 legislation. In short, impeaching the justices for failing to follow the law. Or perhaps a lesser approach would be to add to the new legislation wording that said deliberately misinterpreting the statute would be cause for impeachment. In short, how touchy is congress likely to be about the justices misreading the 2005 legislation?

  3. Zelsdorf Ragshaft III says:

    I wonder where in the Constitution, the SCOTUS finds the jurisdiction to decide what the Commander in Chief of the Military has to do with people it captures on the battle field, let alone the power to decide who treaties are enforced.

  4. Anderson says:

    I should add, however, that SCOTUS didnâ??t demand that the inmates be released, merely that they could not be subject to military tribunals.

    NO. Jesus, JJ, the nutjobs are having a field day as it is; don’t encourage them.

    The above-bolded language is in error. All the Court ruled was that, on the present state of the law, the inmates CAN be tried by military tribunals which are in accord with the laws of war, including the UCMJ and Common Article 3.

    Zelsdorf, if you’re really curious, Justice Stevens’s opinion for the Court will direct you to just the Constitutional provisions you seek. Oh, and you might look at Marsbury v. Madison.

  5. Ugh says:

    But what if the senate decided to raise the stakes and hold impeachment hearings on the supreme court justices failing to follow the 2005 legislation. In short, impeaching the justices for failing to follow the law.

    Except that they didn’t fail to follow the law. Congress specifically applied two of three provisions to pending cases, and was silent on the third, which covered Hamdan. The court took their silence to mean that Congress did not want to apply that particular provision retroactively, especially in light of longstanding rules of interpretation against applying laws retroactively or to pending cases unless Congress specifically applies them in that manner.

  6. Anderson says:

    Glad to see the update, JJ, but I don’t find a single word in any opinion to suggest that inmates couldn’t be tried in military tribunals complying with the law. It would be falsifying the holding of the Court to say it rejected military tribunals. The Addington-invented commissions of the Nov. 13, 2001 order were *all* the Court addressed.

    Whether Hamdan could be charged with conspiracy in said tribunals is an open question, since Kennedy didn’t feel it needed to be addressed.

    Between the lines, of course, you and I can guess that he was charged with “conspiracy” for want of even *secret* evidence that would prove more than “Hamdan hung with some really bad dudes.”

  7. Ugh,

    That is your interpretation. The senate might have another interpretation. Certainly 3 justices don’t agree with you. If congress ever wanted to pick a turf war with the supremes, this would be the case to do it (since the executive branch is likely to back them). Just wondering out loud.

  8. Ugh says:

    If congress ever wanted to pick a turf war with the supremes, this would be the case to do it (since the executive branch is likely to back them).

    But they won’t because either (1) Congress can change the law and the President can use the now-proscribed procedures to try the detainees; or (2) the President can revise the procedures to conform to the UCMJ and laws of war and try the detainees under those procedures. Based on the reaction from Bush and Frist, it seems they’re going with (1).

    I haven’t had time to read the dissents, but I thought Scalia’s general position was that the Court had no jurisdiction whatsoever over anything that went on at Gittmo (at least with respect to non-citizens, and maybe even citizens), and therefore he wouldn’t need to reach the retroactivity question.

    In any event, it’s a pretty damning cross-reference. Essentially, Congress says “a, b, and c are prohibited.” In another section of the law, Congress says “b and c are prohibited retroactive to 2004,” but says nothing about a. How do you interpret the silence on a? That its retroactive too but Congress simply “forgot” to make it so? Talk about judicial activism.

  9. legion says:

    Ummmm. no, no, and no.

    If the 2005 legislation were the only legal issue, then this never would have made it to the SCOTUS in the first place – but it’s not. Congress passed that specifically to forbid SCOTUS review of GITMO detainee habeas & military tribunal issues, and that’s within Congress’ power. Unfortunately, the specific way the administration implemented the tribunals (as Anderson notes) was in conflict with CA3 of the Geneva conventions which, being a fully-ratified treaty, is also federal law.

    Congress can take things out of the SCOTUS ballpark that aren’t explicitly put there by the Constitution, but playing referee when federal laws conflict IS explicitly the role of the federal judiciary. Nothing Congress does (short of successfully amending the Constitution itself) can take away the court’s power to do exactly what it did today – they didn’t rule contrary to the 2005 act, they just ruled that military tribunals protected by that act also had to follow pre-existing federal law (e.g., CA3).

  10. Excellent post. You’re one of my daily (if not more often) reads.

    I’ve linked to this post here: http://consul-at-arms.blogspot.com/2006/06/re-bush-vows-to-pursue-detainee-war.html

  11. Herb says:

    As an American, I am deeply offended by the decision by the SCOTUS today. I,under no circumstances can not and should not accept that a bunch of foreign bloodthirsty killers who make a practice of beheading their innocent prisoners and subjecting them to unthinkable torture should have the same rights I have as a citizen. There is absolutely no logic or common sense to this decision other than the exercising of a radical left wing extremist court that answers to no one. And, any supreme court judge that says they do is “Just No Damned Good” and should be run out of the country.

    I wonder what the 5 justices would have to say if they or their families suffered the injustices dished out by the Islamic extremist they are protecting. I wonder what they would have to say if they were denied US Government protection from the wrath of these same extremist they ruled are equal to the same rights as law abiding US Citizens that never harmed anyone. I wonder how they would rule if an airplane crashed into the Supreme Court building like happened at the world trade center towers.

    I bet I know how they would feel and rule and you do to.

    The 5 justices that made this ruling today have demonstrated that they are the “Bastards of Our Country”

  12. The “foreign bloodthirsty killers” don’t have all the rights you have as a citizen; even under a UCMJ court martial, where there is nominally a presumption of innocence, the defense doesn’t get nearly the opportunity to present evidence and witnesses that it would in a civilian criminal prosecution. People in the military who are familiar with courts-martial have often likened them to railroadings. Trust me, there will be no OJs out of Gitmo.

    Having said that, previously this administration asserted the “right” to hold any U.S. citizens it decided (under its unsupervised discretion) to be “enemy combatants” without trial indefinitely (and then to try them in Gitmo-style kangaroo courts whenever it got around to it), at least until the Supreme Court slapped them down in Hamdi last year. I guess it’s a good thing (a) Hamdi was handed down and (b) you didn’t wind up on the wrong side of someone in the national security apparatus with the power to toss you under the Navy brig in Charleston indefinitely.

  13. Anderson says:

    I,under no circumstances can not and should not accept that a bunch of foreign bloodthirsty killers who make a practice of beheading their innocent prisoners and subjecting them to unthinkable torture should have the same rights I have as a citizen.

    Then you’ll be overjoyed to learn that the Court held no such thing. The prisoners get to be tried according to “the laws of war” and are not, on this case, entitled to trial in civilian courts.

    There is absolutely no logic or common sense to this decision other than the exercising of a radical left wing extremist court that answers to no one.

    Spoken like one who’s read the decision. Or not.

    It upsets Herb no end that the Court doesn’t act like al Qaeda.

  14. Anderson says:

    I guess itâ??s a good thing (a) Hamdi was handed down and (b) you didnâ??t wind up on the wrong side of someone in the national security apparatus with the power to toss you under the Navy brig in Charleston indefinitely.

    I dunno … what would Herb’s tune be if he’d spent a few months in Padilla’s old cell?

    “A conservative is a liberal who’s been mugged; a liberal is a conservative who’s been arrested.”

  15. anjin-san says:

    I guess it should be no suprise that the Bushites are upset that the checks and balances of the constitution are actually working as the founding fathers intended them to.

    There is an old saying that when you point your finger at another and accuse them of something you are often, in reality, describing yourself. I think of this whenever Bush and his minions break out the “they hate freedom” line.

  16. legion says:

    You just keep believing, Herb. Regardless of what those treasonous “facts” say…

  17. Herb says:

    Chris Lawrence:

    Let’s hear you say that when some terrorist beheads your children and wife.

    Anderson:

    It sure is good to know that we in America have “Constitutional Experts” like you to defend our rights as well as the rights of terrorists who are out to kill you.

    Maybe someday, some “Upholders of Criminals Rights” will learn that “It is impossible to win an “Ally Fight” by being “Fair”.

    Then again, some of you don’t have the intelligence to learn a thing.

    Like I stated previously, 5 of the Supreme Court Judges are the “Bastards of America”

  18. Ugh,

    I don’t think you quite caught the concept of my impeachment pondering. Congress obviously acted to limit the jurisdictional scope in the matter.

    “[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” seems fairly clear to me.

    But what you bring up is a matter of interpretation. From reading other accounts, it looks like Kennedy was striving to limit the scope of the jurisdictional restriction as much as a matter of policy (checks and balances tension). Now congress can certainly pass a new law. But what if they decided that rather than passing a new law, they decided that the court should have just read the already passed law more clearly (again clearly in the sense of how congress may see it vs the justices).

    I doubt very much that this will be done. The political ramifications would favor the GOP in the short term, but not the long term. Even so, it is interesting to speculate about.