• This is a rush transcript from "The Journal Editorial Report," June 14, 2008.

    PAUL GIGOT, HOST: Up next on "Journal Editorial Report," the Supreme Court deals a major blow to the war on terror. What this week's ruling means for the 270 terror suspects at Guantanamo Bay.

    Plus, worried about $4 a gallon gasoline? Wondering what Congress is doing about it? A look at where we could be drilling and why we're not.

    And scrapping the SAT. Why some schools are no longer requiring the standardized tests and what it means for college admissions.

    But first, these headlines.


    GIGOT: Welcome to "Journal Editorial Report." I'm Paul Gigot.

    In a major setback for the Bush administration and Congress, the Supreme Court ruled this week that detainees held at Guantanamo Bay, Cuba, have a constitutional right to challenge their detentions in federal court. The ruling invalidates portions of the Military Commissions Act of 2006, which created military tribunals to hear the cases of terror suspects. It was a 5-4 decision with Justice Anthony Kennedy joining the four liberal justices on the court.

    David Rivkin served in the Justice Department under President Reagan and the first President Bush and joins me from Washington.



    GIGOT: Most of the media is portraying the ruling as a big setback for the Bush administration. Do you agree and how so?

    RIVKIN: No. It's actually a setback for both political branches if you look at the court's rhetoric, the majority opinion's rhetoric, it manifests profound disdain for the Congress and President. It's one of the worst examples — frankly one of the two or three worst decisions in court's entire history. It manifests judicial aggrandizement as its worth. This is what this case is really about. And it's going to have very bad practical consequences.

    GIGOT: But, David, two years ago in the Hamdan ruling, the court or four Justices invited Congress to work with the administration to work out details on these military tribunals. So that's what Congress and the White House did, they worked out the details. Now the court says the details aren't adequate. What grounds do they use to justify?

    RIVKIN: An excellent question, Paul. The dissenting opinions call it the bait and switch tactic. In the Hamdan case, the court said both political branches should work it out. No intimation that they constitutional considerations here.

    Here, what the five Justices have done, in an opinion written by Justice Kennedy, they basically have a cursory review of the procedures set in the Military Commissions Act. They find them to be adequate. Remarkably, they don't define which procedures are adequate.

    Again, the clear sense you get from here is this is all not about detainees. This is all about judicial supremacy. They want to a seat at the table. The reason, Paul, they won't just have with the statute, they said it clearly, because if Congress gives them the power by statute to be involved. Let's be clear, there was judicial review and opportunities for the detainees to get into court. If it's statute. Congress can take it back the next day. If it's constitutionally, the court is always at the table.

    GIGOT: Justice Kennedy writes and quotes the Constitution, which says, you know, the language directly in the Constitution says that the writ of habeas corpus can only be suspended in cases of rebellion or invasion when the safety of the United States is threatened. Now he writes there's no rebellion or invasion now so why should the writ be suspended?

    RIVKIN: Two answers. First of all, the Constitution does not apply overseas to the government's conduct in protecting aliens. Remember, the Constitution is a compact between the Americans and their government. The Constitution applies to Americans over time. The Constitution applies to non-Americans, on American soil.

    GIGOT: This decision would apply to Hamid Sheikh Mohammed and other conspirators on the 9/11 episode. These are all foreign nationals, right?