In a decision which ought to reassure those on the left who think the court has gone too conservative, the Supreme Court has ruled in the case of Hamdan vs. Rumsfeld that prisonsers held at Guantanamo Bay cannot be tried by special military tribunals. The decision was based on both provisions of the Universal Code of Military Justice and the Geneva Convention. The main point of issue being that both documents suggest that specially convened courts cannot be used to try prisoners of war who must instead be offered the same quality of justice as non-combatants, which presumably means a normal trial under a legitimately constituted judiciary with a lawyer and all the trimmings.
This argument had been struck down by a lower appeals court and was reinstated by the Supreme Court in a 5-3 decision with the Chief Justice recusing himself because the previous appeal had been heard in his court. Salim Ahmed Hamdan is a Yemeni who had been Osama bin Laden's bodyguard and driver and who was captured during the invasion of Afghanistan. Dissent from the opinion was strong, with the normally silent Justice Thomas demanding time minutes to make a statement rejecting the reasoning of the majority opinion written by Justice Stephens.
The stumbling block for the efforts to try these prisoners in special courts appears to be the failure of Congress to pass legislation authorizing these courts under the UCMJ when they authorized the invasion of Afghanistan. This oversight could be corrected in hindsight and Republicans in Congress are drafting legislation to authorize special trials. Senate Majority Leader Bill Frist commented:
''Since this issue so directly impacts our national security, I will pursue the earliest possible action in the United States Senate.”
Another option which the administration has not discussed would be returning the prisoners to Afghanistan to stand trial, where the pro-American government would be able to try them legitimately but in a very unsympathetic environment.
Of course, the one option which the administration is foolishly overlooking is putting the Guantanamo detainees on trial in US criminal courts. That would more than meet the criteria of the UCMJ and the Geneva Accords, under which they could be tried as terrorists rather than as legitimate combatants. As demonstrated in other cases American juries would be unlikely to be terribly sympathetic, but it appears that the associated publicity and potential difficulty of presenting the cases in a regular court are more than the administration wants to take on.
Taken along with the 2004 decision from the Supreme Court which determined that the GITMO detainees could not be held indefinitely without trial, this ruling puts considerable pressure on the administration to go further in resolving the status of those still being held. Many detainees have already been returned to their home countries, where some immediately resumed their terrorist activities. Those who remain are likely the most dangerous of the lot, but they're a lot less dangerous to the United States if they're in a faraway country and that would at least be some progress. It might be a good idea to keep a few for show trials under US justice and just dump the rest at this point.