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Guantanamo Attorney: The Supreme Court Ruling on Tribunals Proves “The Entire Structure of the War on Terror is Unlawful”

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In a landmark decision, the Supreme Court has rebuked the Bush administration for forming military tribunals to try detainees at Guantanamo Bay. In a 5-3 ruling, the court said the military tribunals violated both the Uniform Code of Military Justice and the Geneva Convention. We speak with Barbara Olshansky, an attorney with the Center for Constitutional Rights which filed two briefs in the Hamdan case, and has represented scores Guantanamo detainees. [includes rush transcript]

In a major defeat for the Bush administration, the Supreme Court has ruled against the use of military tribunals to try Guantanamo detainees. The White House established the tribunals in the months after 9/11 for detainees captured in the so-called war on terror. The tribunals placed several restrictions on the suspects, including limited access to the evidence used against them. In a five to three vote Thursday, the Court ruled the practice violates US and international law. Chief Justice John Roberts recused himself from the case. He had previously taken part in a federal appeals court decision that had rejected a challenge to the legality of the commissions.

The ruling came in the case of Salim Ahmed Hamdan, a Yemeni citizen accused of being an active member of Al Qaeda. Hamdan has been seeking the military to either dismiss his case or try him in a normal military tribunal or federal court. This is former Guantanamo prisoner Moazzam Begg.

  • Moazzam Begg:
    “I was held next to Salim Hamdan in Guantanamo for a period of two months and he often told me about how hard they were working together with Charles Swift in trying to obtain his rights. But we all remained skeptical because we felt that it was the United States government in one sense trying to feel good about itself in offering these types of laws and telling the detainees that at least you have the ability to defend yourself in this way which wasn’t true at all.”

The Supreme Court ruling was hailed by human rights groups, legal experts, and other former detainees. In a statement, the freed British detainee Shafiq Rasul–who spent two years at Guantanamo without charge–said: “This is another step in our collective efforts to see that those we left behind are treated fairly under international law.”

President Bush took questions from reporters shortly after the verdict was announced. He was at the White House in a joint appearance Japanese Prime Minister Junichiro Koizumi.

  • President Bush, joint press conference with Japanese Prime Minister Junichiro Koizumi.

For more on the Supreme Court ruling we are joined by a leading human rights attorney:

  • Barbara Olshansky, attorney with the Center for Constitutional Rights. The Center filed two briefs in this case, and has represented many Guantanamo detainees. Olshansky is the author of “The Case for Impeachment.” Her forthcoming book out next month is called “Democracy Detained: Secret Unconstitutional Practices in the U.S. War on Terror.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is former Guantanamo prisoner, Moazzam Begg.

MOAZZAM BEGG: I was held next to Salim Hamdan in Guantanamo for a period of two months and he often told me about how hard they were working together with Charles Swift in trying to obtain his rights. But we all remained skeptical because we felt that it was the United States government, in one sense, trying to feel good about itself in offering these types of laws and telling the detainees that at least you have the ability to defend yourself in this way, which wasn’t true at all.

AMY GOODMAN: The Supreme Court ruling was hailed by human rights groups, legal experts, and other former prisoners. In a statement the free British detainee, Shafiq Rasul, who spent two years at Guantanamo without charge said, quote, “This is another step in our collective efforts to see that those we left behind are treated fairly under international law.” President Bush took questions from reporters shortly after the verdict was announced. He was at the White House in a joint news appearance with the Japanese Prime Minister Koizumi.

REPORTER: You’ve said that you wanted to close the prison at Guantanamo Bay, but you were waiting for the Supreme Court decision that came out today. Do you intend now to close the Guantanamo Bay quickly? And how do you deal with the suspects that you said were too dangerous to be released or sent home?

PRESIDENT GEORGE W. BUSH: Yeah, I — thank you for the question on a court ruling that literally came out in the midst of my meeting with the prime minister. And so, I haven’t had a chance to fully review the findings of the Supreme Court. I, one, assure you that we take them very seriously. Two, that to the extent that there is latitude to work with the Congress to determine whether or not the military tribunals will be an avenue in which to give people their day in court, we will do so.

The American people need to know that this ruling, as I understand it, won’t cause killers to be put out on the street. In other words, there’s not a — it was a drive-by briefing on the way here. I was told that this was not going to be the case. At any rate, we will seriously look at the findings, obviously. And one thing I’m not going to do, though, is I’m not going to jeopardize the safety of the American people. People have got to understand that. I understand we’re in a war on terror, that these people were picked up off of a battlefield, and I will protect the people and, at the same time, conform with the findings of the Supreme Court.

REPORTER: Do you think the prison will close?

PRESIDENT GEORGE W. BUSH: Well, I haven’t had a chance to fully review what the court said, Terry. I wish I had, and I could have given you a better answer. As I say, we take the findings seriously. And, again, as I understand it — now, please don’t hold me to this — that there is a way forward with military tribunals in working with the United States Congress. As I understand, certain senators have already been out expressing their desire to address what the Supreme Court found, and we will work with the Congress. I want to find a way forward.

In other words, I have told the people that I would like for there to be a way to return people from Guantanamo to their home countries, but some of them — people need to be tried in our courts. And that’s — the Hamdan decision was the way forward for that part of my statement, and, again, I would like to review the case. And we are. We’ve got people looking at it right now to determine how we can work with Congress if that’s available to solve the problem.

AMY GOODMAN: President Bush speaking Thursday at the White House. He was asked a follow-up question later in his news conference.

REPORTER: Yes, Mr. President, we can assume you’ve at least been given some of the broad strokes of the Supreme Court’s decision on Guantanamo —

PRESIDENT GEORGE W. BUSH: I just gave you the answer on that. I’ll be glad to answer another question — I gave you the broad strokes I’ve been given.

REPORTER: Right, but this — can you comment on what looks like a judicial repudiation of your administration’s policy on the treatment of terror suspects post-9/11?

PRESIDENT GEORGE W. BUSH: Matt, I can’t — I wish I could comment, and would, obviously. I’m a person who generally comments on things. I haven’t been briefed enough to make a comment on it, except for the following things. I’m sorry you had to waste your question, but we will conform to the Supreme Court, we will analyze the decision. To the extent that the Congress has given any latitude to develop a way forward using military tribunals, we will work with them.

As I understand, a Senator has already been on TV. Haven’t seen it, hadn’t heard what he said, but as — they briefed me and said he wants to devise law in conformity with the case that would enable us to use a military tribunal to hold these people to account. And if that’s the case, we’ll work with him. But, you know, that’s — I can’t comment any more than I have just done in the first question. Otherwise I would have. I just hadn’t been fully briefed enough to answer your question, Matt.

AMY GOODMAN: Barbara Olshansky joins us in our Firehouse studio. She’s attorney with the Center for Constitutional Rights. The Center filed two briefs in this case and has represented a number of Guantanamo prisoners, over 250. She is the author of The Case for Impeachment. Her forthcoming book out next month is called Democracy Detained: Secret Unconstitutional Practices in the U.S. War on Terror. We welcome you to Democracy Now!, Barbara.

BARBARA OLSHANSKY: Thank you for having me.

AMY GOODMAN: First, your response to this landmark ruling of the Supreme Court.

BARBARA OLSHANSKY: You know, for us, I think it was a tremendous reaffirmation that — of the institutions and how they can work in the country. The fact that the judiciary was willing to step up to the plate and look at what the executive is doing and do the right thing, take the action to make sure that the executive complies with the law. And for me, although it sounds so basic, it’s something that we were watching erode over the last five years, and so that was, you know, probably the most heartening part of it, and that they were willing to look at it in its entire scope.

And what this decision says in very sort of calm, rational, historical terms is that the entire structure of the war on terror is unlawful, that it was based on a premise, an idea of an enemy combatant, which is a status that was created by the President, that it was intended to take place on an island that was outside the law somehow, and that the President could create all of the laws that applied there, like it was his own constructed universe.

And what this decision does in a very rational way is say you can’t do that. No piece of what you have done is lawful. And it’s quite an astounding decision for that reason. It really goes to, as you said, every part of the war on terror.

JUAN GONZALEZ: But at the same time, it does appear that Congress is poised possibly to make some of the very things that the Supreme Court declared unlawful lawful. Certainly in December, when it passed — when it eliminated habeas corpus for detainees at Guantanamo, it signaled that it was ready to do so. And now, as the President said, Arlen Specter is already readying a bill to fix some of the problems that the Supreme Court saw in the President’s actions here.

BARBARA OLSHANSKY: Yeah, that’s true. We had about five minutes of elation before we heard about the proposed legislation. And that is true. I think Congress is going to be very cautious. I know that Senator Specter has said that he’s going to convene hearings of the judiciary committee, which didn’t happen last time. It gives us an opportunity to have a role and to make clear what the ramifications are of everything that would happen.

And also, this decision makes clear that anything that comes out of this is bound by the Geneva Conventions. And for us at the Center for Constitutional Rights, that has been our rallying cry from the beginning, is that the law applies and that the Geneva Conventions — we signed and ratified them. We helped make them in 1949. And they apply wherever we act. There’s no corner of the globe where people are unprotected, and that’s what this court says. The next time you try and do something, you better look at these, you better look at the four Geneva Conventions. You’ve got to look at Common Article 3. You can’t create something out of whole cloth.

AMY GOODMAN: But let’s talk about who this applies to. You’re talking about the U.S. Supreme Court saying the military tribunals are unconstitutional, are a violation of Geneva Conventions. But that’s, what, ten people?

BARBARA OLSHANSKY: That is ten people that are designated.

AMY GOODMAN: Ten prisoners.


AMY GOODMAN: There are hundreds of prisoners at Guantanamo.

BARBARA OLSHANSKY: That’s true. And the decision actually applies to everyone, because what the court is saying is not just that this commission was improperly constructed, but that the conventions apply to the war on terror, because whether or not we are in an international armed conflict with another recognized country or, the way that the Bush administration wants to see it is, it’s sort of a war when it comes to his commander-in-chief powers, but not a war when he has to comply with the laws of war. What the court says here is, if you’re going to call it a war, you have to comply with the Geneva Conventions for everyone. And that really is the tenor of this decision.

And it affects everyone in Guantanamo, also because the Detainee Treatment Act, that effort in the end of last year to strip everyone of their right to go to court to challenge their detention, you know, the court said, 'You know what? That didn't work. You can’t do that retroactively. The statute doesn’t say that. The congressional history doesn’t look like that. We’re not even going to get into the issue that you want to strip the writ of habeas corpus from people, something that we’ve had for over 800 years. We’re going to just tell you this is not what Congress did, and you can’t do that.’ And so that means that all of those Geneva Convention rights that we alleged in the habeas petitions, all of the domestic rights that we’re still asserting, they’re still in play, and all of those people in Guantanamo, they have the right to their habeas hearing now.

JUAN GONZALEZ: I would like to get back to this issue of the Geneva Conventions, because it seems to me that increasingly this is a huge debate in American society about how international law affects U.S. law, and the Bush administration has been pretty vocal in not recognizing international law. In essence, is the court possibly setting up a possible future conflict between a congressional law that is passed, that then goes in violation of the Geneva Conventions?

BARBARA OLSHANSKY: Well, you know, Juan, that’s a very good question. I think, you know, there is a body of law that talks about that, about repudiation of international law. And I think that down the road somewhere — I don’t know that it’s going to be in this case — that might happen, depending on who we have in Congress. I think that issue of the recognition of international law in this country is a gigantic one.

I think, you know, we know that our law says that the treaties we sign become our federal law. Right? That is part of our Constitution. It says it in the Constitution. If we sign and ratify the Geneva Conventions, then they are as if they are a federal statute. You know, they provide those rights. And that’s what this court said.

And this court also said that it undid something that the Lower Court did. It said that those rights in the Geneva Convention that are individual based, like your right not to be interrogated brutally or to be housed decently, to have food and water, they’re individually enforceable in a court. And so, this court and the Rasul court two years ago were saying these are our laws, and the entire _Hamdi_decision is based on international law. And so, what this court is saying is, 'You know what? We can't repudiate these types of agreements. We just can’t.’ And in that way, thank goodness, the court is in concert with what the rest of the world is thinking.

AMY GOODMAN: We’re talking to Barbara Olshansky. She is the attorney for the Center for Constitutional Rights. The organization has been representing hundreds of people at Guantanamo. Her forthcoming book is called Democracy Detained.

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