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Bush Administration Rebuffed by Supreme Court

SUSAN STAMBERG, host:

More now on today's Supreme Court ruling in a key case testing the Bush administration's process for putting on trial terror suspects held at Guantanamo Bay. In a five to three decision, the court ruled that President Bush overstepped his authority in ordering military tribunals for some of the detainees. The justices said the tribunals violate U.S. law and the Geneva conventions. To talk about today's rulings, Scott Silliman - he's executive director of the Center on Law, Ethics, and National Security at Duke University. He's on the line with us from Durham, North Carolina. Good morning to you.

Professor SCOTT SILLIMAN (Center on Law, Ethics, and National Security at Duke University): Good morning. It's a pleasure to be with you.

STAMBERG: Thank you. This decision is a rebuke to the Bush administration and it's prosecution of this war against terrorism.

Prof. SILLIMAN: Well, I think it certainly is a setback for the administration with regard to military commissions. As you suggested, the court held that no statute passed by Congress - the Detainee Treatment Act or the authorization for the use of military force - specifically authorized President Bush to convene this type of military commission. It basically said it's a war court, it must follow the laws of the United States, the uniform code of military justice, and more especially common, article three of the Geneva Conventions. And that is a decision that the president had specifically made about four years ago, that the Geneva Conventions did not apply. The court in today's ruling disagreed with him.

STAMBERG: Mm hmm. And what was the problems that they saw with these military tribunals?

Prof. SILLIMAN: Well, they pointed to two specific procedural due rights processes that Hamdan - and procedurally, others - would not be afforded: one, the right to be present at all times during the tribunal. And also, the court pointed at the Admissibility of Evidence Standard - which was much less than for a court martial - and said that the president had not justified these deviations from standard court martial procedure. The court is basically driving the administration to adopt court martial procedures if it's going to prosecute those at Guantanamo Bay.

STAMBERG: And Hamdan was a former driver, a Yemeni driver for Osama bin Laden, on whose case this decision was based. Well, where does this ruling leave the administration, please.

Prof. SILLIMAN: Well, it leaves it in somewhat of a dilemma. If it's going to proceed to prosecute those at Guantanamo Bay - and I suspect that's only going to be 15 or 20 at most - then it must revise the procedures, and as the court suggested, comply more with court martial procedures, which is what we use for our own servicemen when we prosecute them. I think that's the easiest way for the administration to comply with the court's mandate. Again, a more significant point would be that the court was not persuaded by the government's argument that the Detainee Treatment Act denuded it of jurisdiction over Hamdan's case. It ruled it did have jurisdiction. That has a spillover effect into all the habeas corpus petitions, the challenges to the detention from those at Guantanamo Bay that are currently residing in the District of Columbia circuit. That opinion is yet to come. The Supreme Court's opinion today in Hamdan's case will obviously dictate that the D.C. circuit will be holding on to those cases, and they will have life breathed into them again.

STAMBERG: Yeah, very briefly now, Guantanamo does not shut down, but what about the hundreds of detainees there?

Prof. SILLIMAN: Well, obviously, that has been a continuing dilemma for the administration. I think the president has said he wants to close it. The Department of State has been working with the countries involved to try to move their citizens back. But we're been saying we want them held in restraint in those countries. I think the countries are coming back and saying you didn't - you never charged them with an offense. How can we hold them? That's a separate but related issue to the court's opinion. But today's opinion puts more pressure on the administration to do something to fix Guantanamo Bay.

STAMBERG: Thank you very much. Scott Silliman, executive director of the Center on Law, Ethics, and National Security at Duke University. Today, the court ruled against the Bush administration and its military tribunals for detainees at Guantanamo Bay. Transcript provided by NPR, Copyright NPR.

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