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Court Rejects Guantanamo War Crimes Trials


From the studios of NPR West, this is DAY TO DAY with a big decision from the Supreme Court on this final day of the term.

I'm Alex Chadwick.


I'm Madeleine Brand.

The court ruled that the military tribunals established by President Bush to try detainees at Guantanamo Bay are illegal. We'll hear the President's response and get the views of a man who was held at Guantanamo for years.

CHADWICK: First, for details of the ruling, we're joined by Dahlia Lithwick, legal analyst for the online magazine Slate and for DAY TO DAY. Dahlia, welcome back. Tell us about the issue in the case of Salim Ahmed Hamdan and what does the court say about it?


Well, at it's narrowest, Alex, the issue was simply about Osama bin Laden's driver and the sorts of military trials that the Bush Administration invented from whole cloth to try him, and 10 others at Guantanamo. The legal question was, does the President have the authority to sort of sidestep all the existing trials and create this new system of military tribunals? At the broadest, the question really was a test of the President's extremely broad theory of his own power at wartime. And the decision was just a repudiation of that theory. It went way farther than most court-watchers I think expected.

The court largely said that these trials are illegal under military law. They're illegal under the Geneva Convention. They're not authorized by the congressional authorization of use of military force that happened after 9/11. And that the court was not stripped of jurisdiction to hear claims from people who had pending cases. So it's very, very broad and sweeping rebuke to the President's theory that he could sort of just invent a new trial system.

CHADWICK: This opinion is written by Justice John Paul Stephens. The vote was 5-to-3, Chief Justice Roberts not taking part because he ruled on the case when he was an appeals court judge. But what about the three dissenters in this case, Dahlia?

LITHWICK: That's right, Alex. And it's worth noting that Roberts' position at the appeals court was reversed by the court today. The dissenters were very angry. In fact they read their defense from the bench for quite a long time this morning. Justice Scalia was very upset. He said the court just did not have jurisdiction to hear this case. Congress had stripped it of the jurisdiction to hear it. Justice Thomas went farther. He essentially said this was an absolutely impermissible encroachment on the President's war powers, and those powers, he says, at this moment should've been at their zenith.

CHADWICK: Wow. Well, in the case of the detainees held at Guantanamo, there still are hundreds of people there and there are, well, there's some sort of trial or tribunal or something coming up for about a dozen of them. So what happens now to these people there?

LITHWICK: It's really important to be clear, Alex, that this does not affect the rest of the detainees at Guantanamo. The court expressly said today that the administration could hold Hamdan quote "for the duration of active hostilities." So the court was not saying they can't be held. What the court said was, if you're going to have trials, they have to meet some minimum threshold of fairness. So essentially now the choice is for these 10 detainees or so, either try them in an existing - either a courts-marshal system or a civilian court, or ship them off to be tried somewhere else, or hold them till the end of the war. For the rest of the Guantanamo detainees, it's not clear that much is going to change.

CHADWICK: Well, when you say they can hold them for the duration of the war, how do we know there's ever going to be an end to this war? I mean the war on terrorism, I don't know that anyone thinks it's going to be over at some point.

LITHWICK: Well, that's certainly a problem, but the court was quite clear today in saying that they could be held for the duration of those hostilities. So the court did not address the problem of holding these detainees as a whole. As they said, what they wanted to do is make sure if you're going to put them into courts, they darn well better be courts that are fair.

CHADWICK: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine Slate and for DAY TO DAY. Dahlia, thank you again.

LITHWICK: My pleasure, Alex. Transcript provided by NPR, Copyright NPR.