Try, Try Again

generic guantanamo bay Salim Ahmed Hamdan supreme court CBS/AP

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.


For the second time in two years, the United States Supreme Court has told the executive branch that it may only go so far, and no further, in prosecuting the legal war on terrorism when those efforts dramatically infringe upon the vital rights of individuals.

For the second time in two years, a majority of Justices has stood up to the White House and declared that it alone does not get to redefine and expand the scope and authority of its constitutional powers under the guise of fighting an endless war against a murky enemy.

There is nothing mysterious about Thursday's monumental ruling on the rights of terror detainees at Guantanamo Bay, Cuba. If White House officials were "shocked" by it, as some early reports indicated, they should not have been. Even after they were told by Justice Sandra Day O'Connor in June 2004 that the war on terror did not give the President a "blank check" to limit constitutional rights, they were seeking legal legitimacy for (or, more precisely, no judicial intervention precluding) an audacious military-justice program that was unprecedented in our nation's history.

That explains why Justice John Paul Stevens' 73-page majority opinion was replete with reasons why the law does not support the executive branch's strategy of trying to prosecute the men at Gitmo through extraordinary means even though the White House and military officials could have achieved the same results using conventional rules. As Justice Anthony Kennedy said in his concurrence, "… a case that may be of extraordinary importance is resolved by ordinary rules."

In the end, all the Court's majority did was tell President Bush and his lawyers that they must employ more traditional means to prosecute the detainees; that there is a baseline level of rights and protections to which even suspected war criminals and terrorists are entitled and which the Supreme Court will enforce.

And after all of today's shouting has died down, and the gears of government kick back into action, for the men at Guantanamo Bay this ruling does ensure that Salim Ahmed Hamdan and his fellow detainees get more due process from their prosecutors and judges once they are tried.

It's a ruling, then, that has little practical short-term impact on the lives of detainees even as it causes immediate ripples of angst and anger and action in certain circles of power.

The ruling surely means many different things to many different people. To President Bush and his political and legal allies, the 5-3 ruling is a crushing blow to Administration authority and prestige. With the help of a pliant Congress, the White House had hoped to bully its way through this case by arguing that the courts have no authority to second-guess presidential decisions about the fate of these men, who either are terror suspects, prisoners of war, common criminals, or some combination thereof.

That dog no longer hunts. Any ambiguities or uncertainty about the Court's unwillingness to defer to the executive branch in all things terror-related ends today with this ruling. From here on in, all three branches of government will have a loud say in how the legal war on terrorism is fought.
  • Sean Alfano

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