Supreme Court rejects Guantanamo Bay detainee tribunals

The Supreme Court yesterday struck down the military commissions President Bush established to try suspected members of al-Qaeda, emphatically rejecting a signature Bush anti-terrorism measure and the broad assertion of executive power upon which the president had based it.

Brushing aside administration pleas not to second-guess the commander in chief during wartime, a five-justice majority ruled that the commissions, which were outlined by Bush in a military order on Nov. 13, 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions.

First, “[a] military commission, (except where
otherwise authorized by statute), can legally assume
jurisdiction only of offenses committed within the field of
the command of the convening commander.” Winthrop
836. The “field of command” in these circumstances means
the “theatre of war.” Ibid. Second, the offense charged
“must have been committed within the period of the
war.”28 Id., at 837. No jurisdiction exists to try offenses
“committed either before or after the war.” Ibid. Third, a
military commission not established pursuant to martial law or an occupation may try only “[i]ndividuals of the
enemy’s army who have been guilty of illegitimate warfare
or other offences in violation of the laws of war” and mem-
bers of one’s own army “who, in time of war, become
chargeable with crimes or offences not cognizable, or
triable, by the criminal courts or under the Articles of
war.” Id., at 838. Finally, a law-of-war commission has
jurisdiction to try only two kinds of offense: “Violations of
the laws and usages of war cognizable by military tribu-
nals only,” and “[b]reaches of military orders or regula-
tions for which offenders are not legally triable by court-
martial under the Articles of war.” Id., at 839.29