US: With the legality of the camp unclear, the case for keeping it open is weaker, writes Denis Staunton
Yesterday's supreme court decision declaring military tribunals at Guantánamo Bay illegal is a major setback for President George Bush's drive to expand presidential authority since the attacks of September 11th, 2001. Although the court did not order the closure of the Guantánamo detention centre, it will increase domestic and international pressure on Washington to end what has become a political and moral eyesore for America.
The case of Salim Ahmed Hamdan, a 36-year-old Yemeni who has admitted acting as Osama bin Laden's driver, raised core constitutional questions about the president's claim to wartime powers to lock up individuals without traditional protections such as jury trial, and the applicability of international treaties such as the Geneva Conventions to prisoners the US describes as "unlawful combatants".
Mr Hamdan was captured by Afghan Northern Alliance fighters in November 2001 following the US overthrow of the Taliban and subsequently handed over to US forces, who sent him to Guantánamo in 2002.
Mr Hamdan denies any involvement in the September 11th terrorist attacks and says he was trying to make his way home from Afghanistan when he was captured.
On November 13th, 2001, Mr Bush issued a military order declaring that military commissions would try foreign terrorist suspects for alleged war crimes and sentence them to punishments including death.
Mr Hamdan became the first Guantánamo inmate to be chosen for such a trial when he was charged in July 2004 with conspiracy to commit terrorism and war crimes.
Military prosecutors alleged that Mr Hamdan delivered arms, ammunition and other supplies to al-Qaeda fighters, picked up weapons at Taliban warehouses and drove or accompanied bin Laden to appearances at al-Qaeda training camps and other events.
Earlier in 2004, Mr Hamdan had filed a petition for habeas corpus, challenging the legality of his detention. In November that year, the US district court granted the petition in part, ruling that Mr Hamdan could not be tried by a military commission unless a competent tribunal determined that he was in fact an "unlawful combatant", and not a prisoner of war under the Geneva Convention.
The Bush administration appealed and the US court of appeals ruled last year that the Geneva Convention does not apply to al-Qaeda members and that the military commissions were authorised by Congress.
Yesterday's judgment overturns that decision, declaring that the commissions were not authorised by Congress and that inmates at Guantánamo must be tried in accordance with the Geneva Conventions or the US Uniform Code of Military Justice. The court also denied the government's motion to drop the case under the terms of the December 2005 Detainee Treatment Act, that denied jurisdiction to federal courts to hear habeas corpus challenges by detainees held at Guantánamo Bay.
The court held that the provision did not apply to the Hamdan case because it was pending before the provision became law.
In effect, the ruling means the provision does not apply to the hundreds of detainees who had filed such challenges to the legality of their detentions before Mr Bush signed the legislation last December.
The court left open the possibility of Congress introducing legislation to authorise military commissions at Guantánamo, and Republicans yesterday signalled their determination to act swiftly to do just that. The ruling makes clear, however, that such legislation would have to resolve fundamental inadequacies in the current commissions, which do not allow defendants to hear all the evidence against them or to be present throughout their trial.
The supreme court judgment comes as senators and congressmen, including Republicans, are expressing unease at the expansion of presidential power since September 11th, 2001.
Mr Bush has used his war-time powers to justify, among other things, the National Security Agency's eavesdropping without a warrant on phone calls made to and from US citizens.
This week, Republican senator Arlen Specter said he was considering introducing legislation to allow Congress to sue the president over his use of "signing statements" to assert his authority to ignore aspects of some legislation passed by Congress.
Yesterday's decision will have no immediate effect on the fate of the 450 inmates detained at Guantánamo, none of whom knows how long they will be held and most of whom have not been charged with any crime.
Mr Bush has stated repeatedly in recent weeks that he wants to close the camp and the US is negotiating with a number of countries about the repatriation of some citizens. However, the White House said yesterday that some detainees would face trial - in civilian courts, at courts martial or in military tribunals if Congress authorises a new system.