Ruling rattles Bush strategy

WASHINGTON — The Supreme Court's ruling that the Bush administration can't use ad-hoc military commissions to try suspected terrorists may have sweeping implications for other aspects of President Bush's war on terrorism.

The court's decision Thursday ignited debate about its full impact among lawyers, legal scholars, administration officials and members of Congress.

Some think the opinion could challenge the administration's claim the National Security Agency (NSA) has the right to eavesdrop without court approval on Americans suspected of having ties to al-Qaida or other terrorist groups.

The high court's embrace of a central provision of the Geneva Conventions on war also could bolster challenges to U.S. interrogation techniques and the use of secret prisons to detain suspected terrorists. It also could help detainees being held without charges, lawyers or trials to contest their situations, experts said.

"At this point, almost everything that could be affected by the decision is going to come to a screeching halt," said Neal Sonnett, chairman of the American Bar Association's task force on enemy combatants, referring to the treatment of detainees.

At its heart, legal experts said, the ruling rebuffed Bush's contention that the president has special powers during wartime to disregard acts of Congress and international treaties.

"I think the court's ruling is a rejection of the administration's post-9/11 legal centerpiece claim, which is the president has inherent authority in all kinds of things in the name of crisis," said Neal Katyal, the lead attorney who argued the case on behalf of detainee and plaintiff Salim Ahmed Hamdan.

"One of the potential implications is that the 'inherent authority' argument pushed by the executive branch may be in retreat," Sen. Lindsey Graham, R-S.C., agreed Friday.

The administration has contended since the Sept. 11 attacks that the Constitution gives the president as commander in chief "inherent authority" to do virtually anything he wants in the name of protecting national security in a time of war.

The Supreme Court ruled that Congress and the judiciary share authority with the executive, even in time of war.

At the same time, the court held that Congress could write a law creating new tribunals to try detainees, so long as they operate within a civil or military legal code, and leading senators intend to do so soon.

Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said Friday he doesn't take the court's ruling to mean that those being held would be off the hook simply because their rights were found to have been violated.

"They can argue that," he said, "but I think there's a basis for detaining them if they're dangerous" so long as Congress passes legislation "very promptly."

Specter introduced a bill Thursday that would authorize military commissions to handle detainees in two ways: one for those charged with specific offenses and another for enemy combatants being held indefinitely.

He scheduled hearings for July 11. The House Armed Services Committee also announced hearings for this month, and other relevant committees are expected to follow.

Legal experts cautioned that analysis of the complex 5-3 decision was preliminary, because they'd only had a day to distill it. But overall, there was widespread agreement the decision could spell more legal trouble for the administration's war on terrorism.

The majority decision, written by Justice John Paul Stevens, concluded that the administration's Guantánamo Bay tribunals violated U.S. law and the Geneva Conventions of 1949 because they didn't provide defendants with legal safeguards that civilian and military courts require and they weren't authorized by Congress.

The justices cited Common Article 3 of the Geneva Conventions. Article 3 prohibits the "passing of sentences" without a judgment from "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Article 3 also prohibits torture and other "degrading treatment," and holds that a humanitarian agency, such as the Red Cross, may be called to ensure that the Geneva protections are being obeyed, although the provision is not mandatory.

Some legal scholars said that could encourage current and former detainees to bring cases against the government for employing harsh interrogation techniques at Guantánamo Bay and other U.S.-run prisons.

Administration lawyers said the decision applies only to Hamdan and a limited group of prisoners at Guantánamo: the nine other detainees who have been charged with war crimes and 40 to 80 more who are in the pipeline to face similar charges.

But officially, the U.S. Justice Department said Friday it has yet to make a determination on how broadly the decision will be applied.

Some administration supporters predicted the ruling would undermine public support for the president's claim of special wartime powers.

"It's a major setback for the president. The advocates of diminishing his office now have a powerful public-relations tool to say that the most powerful court in the land has said he is a law breaker," said Douglas Kmiec, a professor of constitutional law at Pepperdine University Law School and a legal counsel for former Presidents George H.W. Bush and Reagan.

McClatchy correspondent Stephen Henderson contributed to this report.

Material from the Los Angeles Times is included in this report.