The Pentagon’s action came in response to the June 28 rulings by the U.S. Supreme Court, which decided, in three cases, that U.S. citizens ordered detained by the president as “enemy combatants” must be given their day in court.

The court also ruled that all of the alleged members of al-Qaeda and the Taliban being held at the Guantánamo prison camp have the right to use U.S. courts to challenge charges against them. Most of the prisoners have been held for two years or more without charges and have been denied access to attorneys or visits by relatives.

Under the order for the hearings, signed by Deputy Secretary of Defense Paul Wolfowitz, each of the detainees will be informed that the newly set-up military tribunal will review their status and that they have a right to a separate hearing in federal court.

In the Pentagon review, defendants would be allowed to present testimony, evidence, and call “readily available” witnesses. However, they would not have an attorney—only a military officer acting as a “personal representative.” The tribunal review would be conducted by three commissioned military officers.

With its rulings, the Supreme Court told the ruling class that the executive branch of the government is going too far in undermining democratic rights under the banner of the “war on terrorism.”

“Executive Branch Reined In,” read the headline of a Washington Post story on the court decision. The article noted that the measures taken by the government immediately after the Sept. 11, 2001, attacks on the World Trade Center and Pentagon have become increasingly difficult to justify nearly three years later. “The justices suggested several times in their opinions,” wrote the Post, “emergency measures that might have been within the president’s power in the days and weeks just after 9/11 now must be reconciled with American norms of due process.”

“We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the nation’s citizens,” wrote Justice Sandra Day O’Connor.

On Nov. 10, 2003, the court decided over the objection of the administration to hear two appeals on behalf of 16 of those detained at the Guantánamo prison camp. And last December a federal court in New York ruled that the so-called enemy combatants could not be held indefinitely without charges or a trial in which they have the chance to defend themselves.

The Bush administration has argued that since the prisoners are detained outside U.S. territory they are not entitled to access to U.S. courts nor to protections afforded prisoners of war.

At the center of the cases was that of Yaser Esam Hamdi, a U.S. citizen who was captured on the battlefield in Afghanistan during the U.S.-led war to overthrow the Taliban regime. Justices Antonin Scalia and John Paul Stevens wrote that the U.S. constitution forbids the president from doing anything but charging Hamdi with a crime such as treason or releasing him, unless Congress specifically authorizes executive detention.

The court also ruled that Hamdi must be granted a hearing but did not specify how such a hearing would take place. In a concession to the administration, the court agreed that the usual presumption of innocence in Hamdi’s case could be suspended, admission of hearsay evidence could be accepted, and the court indicated that a military tribunal could suffice for Hamdi’s day in court.

The court returned the case of Abdullah al-Muhajir, also known as José Padilla, to the lower courts on jurisdictional grounds. It said that the New York court to which his attorney appealed for an order for his release did not have the authority to rule. Padilla’s attorney will now have to resubmit his appeal to a federal court in South Carolina.

Padilla, a U.S. citizen, was arrested in May 2002 upon his return to the United States from Pakistan. He is charged with having met with leaders of al-Qaeda and with planning to explode a radiological bomb in a U.S. city. Following his arrest, Padilla was taken to New York as a material witness in the September 11 attacks. Two days before a judge was to hear a challenge to his detention, the Bush administration declared him an “enemy combatant” and transferred him to a Navy brig in South Carolina.

Attorneys representing those held at Camp Delta and their families said they will quickly seek review of the detentions. Until now the few that have been allowed have met with their clients only at the discretion of the Pentagon and their discussions were videotaped.

The court’s ruling did not affect the legality of military tribunals at Camp Delta or those being detained by the CIA at undisclosed locations.

The day following the high court’s decision, the Pentagon announced the appointment of a five-member military tribunal to try three of those detained at Guantánamo. They are David Hicks of Australia, Ali al-Bahlul of Yemen, and Ibrahim al-Qosi of Sudan. On July 7, the Pentagon announced that nine other unnamed individuals are eligible to be tried by the tribunal. One military lawyer assigned as a defense attorney has filed a petition in federal court seeking to halt the trials on the grounds that they violate U.S. and international laws.  
 
 
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