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Supreme Court Blocks Guantanamo Trials; Flooding Continues on East Coast

Aired June 29, 2006 - 10:00   ET


DARYN KAGAN, CNN ANCHOR: Coming up this hour, some flood victims in the east having given the all clear to go home if they have homes to go back to. Live reports from the flood zones straight ahead.
A war-time president, a war powers issue. Is President Bush overstepping his authority? The nation's high court decides on military trials for detainees this hour. Our Bob Franken is inside the U.S. Supreme Court. We will go there live.

And the crisis deepens in the Mid East. The search for a missing soldier continues. A live report from Gaza is just ahead.

Many swollen rivers and creeks along the East Coast are receding this morning, but the flooding crisis is far from over. Residents in Wilkes-Barre, Pennsylvania, will be allowed to go back to their homes in about two hours to survey the damage. Cleanup is certain to be long and difficult. Losses for some families cannot be measured. At least 12 people are known to have be killed across the stricken region.

Let's begin with Mary Snow. Her last name is Snow, but today she's covering rain and floods. She is in Plains, Pennsylvania, a town along the Susquehanna River.

Good morning, Mary Snow.


And, you know, a lot of residents here very thankful there is no rain. And what a difference a day makes. We're going to show you here in Plains, Pennsylvania. We couldn't even stand in this parking lot yesterday. And to give you an idea of just how high the water was. This bus stop was pretty much underwater for the most part.

We're about a half mile away from the Susquehanna River. The water has been receding pretty quickly. And, as you mentioned, the mayor of Wilkes-Barre, just nearby, has lifted a evacuation order. That goes into effect for about 200,000 people in the county. You can still see some of the remnants of the flooding. Some residents just getting back into their homes, discovering a mess. Some expressing relief but that feeling is bittersweet.


ROBIN WILLIAMS, RESIDENT: It really came in quick and then this morning the water just -- I can't believe how quick it's gone back out.

JEANNE CHOPKA, RESIDENT: Noone knows how bad it is to be in a flood unless you're in it. And every time it happens, you just die a little bit.


SNOW: Some of the residents making their way through this water to about 20 homes behind us. One resident said she found about four feet of water in her basement. Others are finding mud. Yet others are saying they have a real problem with sewage backing up.

So while there is relief, there is a very long road ahead for some of the residents here and a very serious storm. At least four people we know of, officials tell us, were killed in this area. And that includes a boy who was found yesterday after he was playing near the Susquehanna River.


KAGAN: And, Mary, most of these folks you're talking to, do they say they have flood insurance?

SNOW: They have and this is an area that is prone to floods. They've been through this the past couple of times in their lifetimes at least. The worst time came, of course, in 1972 with Tropical Storm Agnes. They do have flood insurance but really wearing down.

And one thing they say is that they haven't seen this much rain. It's been raining here for almost a week. And, you know, they are used to these kinds of things but not quite this much.

KAGAN: All right, Mary Snow, thank you. Live along the Susquehanna River.

SNOW: Sure.

KAGAN: Well, flooding has put more than a dozen New York counties under a state of emergency this morning. We're seeing dramatic images of some of the damage. Goodness. An entire building just washing away. The flood waters washing away a restaurant in one town. The two-story building collapsed into a creek. Our Allan Chernoff has been surveying the damage. He joins us now from Binghamton, New York, along the Pennsylvania border.

Good morning.

ALLAN CHERNOFF, CNN CORRESPONDENT: Good morning to you, Daryn.

And would you believe another bright, beautiful, sunny day just like yesterday but all of this flood water that we're still seeing is from the three prior days of rain. In fact, more than four inches on Tuesday, a new record for the city of Binghamton. And, of course, this flood has simply been devastating.

Let's have a look at this house. Just to the right of me over here, you see still surrounded by flood waters, totally devastated. And 15,000 households have been evacuated in this area. Households just like that. They remain without power. So it still is a very difficult situation. At least four people have died in the region as a result of traffic accidents.

But, having said that, we can say the situation is certainly improving because by the hour we're seeing the flood waters receding and very, very rapidly. I'd estimate probably by a foot each hour where we're standing right now. In fact, all of this area, this front lawn of the home before which I'm standing, this was entirely covered with water yesterday.

And if we walk on to the street -- and, by the way, this street extends for a good 90 yards. It's supposed to extend 90 yards to the river but most of it is covered by water. But right over here is one spot where the water did rise to yesterday. And you see the rocks brought up.

And even further, all the way back here, we still have some debris. Here's some wood that was brought up by the water. And you can see now till the water front a good 60 feet.

So, Daryn, the water, as I said, receding very rapidly and that's certainly very welcome news here.

KAGAN: All right, Allan, while we watch you walk around town there, I want to go ahead and bring Chad Myers in, our severe weather expert. Chad wanted to ask you a question.


CHAD MYERS, CNN METEOROLOGIST: Allan, I want to get back to the fact of the flood wall and how that -- the mayor said that it saved the city of Binghamton. Where are you and where is this flooding that we're seeing here clearly not protected by a flood wall, right?

CHERNOFF: Right. Actually we're very close to where the flood walls are. But at this particular place where we are there is no exact flood wall. And let me just walk into the water so you can get a little more of a sense of what remains.

MYERS: Be carefully out there.

CHERNOFF: Because you can see that this normally would be totally, totally land. Just totally dry. But a pond has been created here by the flood water.

The flood walls are 25 feet around Binghamton, around the river here, the Susquehanna. But in this particular area, as you said, there is no flood wall. So, as a result, the water has just flowed right all the way here. A good 100 yards away from the normal banks of the Susquehanna River. But, again, the mayor did say, and we could clearly see yesterday, that those flood walls were holding back the waters and preventing the entire city from being flooded.

KAGAN: All right, Allan, thank you. Let's keep going here with Chad.

So, Chad, what can these areas expect today?

MYERS: Well, this Binghamton area actually had a record level for the Susquehanna. As long as they have been keeping records, the water has never been that high.

KAGAN: Chad, let me jump in here because we have breaking news out of the U.S. Supreme Court and I believe it's on the case concerning enemy combatants. Bob Franken from inside the U.S. Supreme Court.


BOB FRANKEN, CNN CORRESPONDENT: We have just been handed the case and we're going to need to go through it. But the bottom line is, is that a lower court ruling that had said that the military commissions, the so-called tribunals, that were trying enemy combatants in Guantanamo Bay no longer can go forward. The judgment of a lower court that they could go forward has been reversed. Reading from this, it says the case is remanded, meaning that it has to go back to the lower court.

It was decision that was presented after arguments in March. The military commissions, the president, had said that he wanted to try the case before these tribunals and we're seeing here as we read the opinion, it is one that has just come out. It was a 5-3 decision saying that because UCMJ Article 36 that's the University Code of Military Justice -- has not been complied with here, the rules specified for Hamdan's commission trial are illegal. The procedures governing such trial historically have been the same as those governing courts martial. Although this uniformity principle is not inflexible, it does not preclude all departures from court martial procedures. Any such departure must be tailored to the expediency that necessitates it.

In other words, these commissions are not properly constituted. They do not have the proper regulations and, therefore, are not valid. We're going to have to read the decision further to see if the administration is being given the opportunity to restart the commissions, to come up with new rules. But the fact that they relied on a court martial as the procedure that is supposed to be followed suggests, and it's going to take further reading, that the Geneva Convention is involved here. It's the Geneva Convention that requires prisoners of war are subject to the same rules that a court-martial is subjected to. The administration has always rejected the idea that Geneva Convention applies to the so-called enemy combatants.

We'll be back with you in a few minutes, Daryn.

KAGAN: OK, Bob, good work there breaking the story. We'll let you go so you can read more on that. We have other players to look at the story. But basically to give you some background here. This, of course, goes for the case of Salim Ahmed Hamdan who is a Yemeni who was a driver and a personal bodyguard for Osama bin Laden. He is being held at Guantanamo Bay and was to be detained -- and is detained as an enemy combatant and go through a war tribunal. And that is what the U.S. Supreme Court has ruled on here.

Let's go ahead and bring in our legal analyst, Jeffrey Toobin.

Jeff, you're just hearing all this as Bob is reporting it from the Supreme Court. But what do you hear from all that?

JEFFREY TOOBIN, CNN CORRESPONDENT: Well, what I hear is that this is a major defeat for the Bush administration which had put forth this plan both in the setting of this case, but also in the international community as a model of American justice. And now the Supreme Court has said no good. Back to square one. Come up with a better system.

And, you know, it was only about 10 days ago that President Bush was in Vienna being pressed by foreign leaders, saying what are you going to do about Guantanamo? Why isn't that a stain on America's record? And President Bush said, oh, we're waiting to hear from the Supreme Court. Now they've heard. Now they've got to start over.

KAGAN: Quickly, what do you make of the 5-3 decision. Chief Justice John Roberts did not participate in this decision because he previously had ruled on it as a federal appeals court judge.

TOOBIN: Interestingly, he had ruled in favor of the Bush administration. So five of his new colleagues went the other way. Doesn't matter if you get five votes or nine votes, the majority rules at the Supreme Court. So the Bush administration has got to now, for a second time -- in 2004 the Supreme Court also rejected the Bush administration's earlier plans for dealing with enemy combatants. Now they've got to go back again.

KAGAN: All right, Jeff, back to you in just a moment.

Right now, though, back to the Supreme Court. Bob Franken reading through the decision as it comes down.

Bob, what do you have?

FRANKEN: Well, what we discussed earlier, when I was describing the initial look at it, that the Geneva Convention must be applied here. That has been reinforced, as we read the opinion which, by the way, was written by Justice Stephens who is one of the more liberal, if not the most liberal member of the bench. He says, it must be understood -- talking about the military commissions -- must be understood to incorporate that least the barest of those trial protections that have been recognized by customary international law. And many of these described here are in Article 75 of Protocol One to the Geneva Convention of 1949, which were adopted in 1977.

This is a spectacular ruling in that it applies Geneva Conventions in an area where the administration has claimed from day one, certainly since the first time I've been down at Guantanamo Bay, that the Geneva Conventions at least must be applied in the case of the proceedings that are held. The administration has always insisted that the Geneva Conventions are not relevant here because these are not prisoners of war, they are a special category in the war on terror.

KAGAN: Bob Franken, we will be back to you as you read through more of the decision.

Right now to the White House and reaction to this ruling from the Supreme Court and Elaine Quijano.


ELAINE QUIJANO, CNN CORRESPONDENT: Daryn, good morning to you.

It's likely that we'll hear our first reaction from President Bush himself who is at this hour in the Oval Office meeting with Japan's prime minister. At 11:30 Eastern is when there is scheduled to be a joint press availability. The two leaders will come before the cameras and answer reporters questions in the East Room here at the White House.

But Guantanamo and the issue of the U.S. detention center there continues to be the main sticking point between the Bush administration and international allies. Particularly, President Bush is fresh off that meeting last week in Vienna with European Union leaders where officials say the president himself actually raised the issue of Guantanamo. Publicly, the president reiterated what he has said in recent weeks, that he would like to see the facility closed eventually.


GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: I'd like to end Guantanamo. I'd like it to be over with. One of the things we will do is we will send people back to their home countries. We've got about 400 people there left. Two hundred have been sent back. Four hundred are there mainly from Saudi Arabia, Afghanistan and Yemen.

There are some who need to be tried in U.S. courts. They're cold-blooded killers. They will murder somebody if they're let out on the street and yet we believe there ought to be a way forward in a court of law and I'm waiting for the Supreme Court of the United States to determine the proper venue in which these people can be tried.


QUIJANO: And, Daryn, still awaiting reaction here at the White House. Again, that news conference set to take place at 11:30 Eastern Time. But certainly this not the outcome that the Bush administration had hoped for.

One other note. The president will likely be hearing more about this next week. He will be traveling to Russia for the G8 Summit. But before that, he'll be stopping in Germany to meet with a new chancellor there, Angela Merkel. And despite having a close, personal rapport with President Bush, she certainly has not shied away from raising this issue with him.


KAGAN: That is true. Elaine Quijano at the White House, thank you.

And, good point. That news conference begins in an hour and 15 minutes. You'll see that live right here on CNN.

Right now I'd like to welcome in Jeff Greenfield.

And, Jeff, if you can take a larger view of what we've learned so far about this decision. It appears what you have is the U.S. -- you have the U.S. Supreme Court -- all right, I guess we don't have Jeff Greenfield. Let me go back to . . .

JEFF GREENFIELD: No, I'm here, Daryn.

KAGAN: All right, Jeff, we'll go back to you in a moment.

Bob Franken at the U.S. Supreme Court.


FRANKEN: Sifting through all this. One of the arguments that the administration has made is that Congress, at least implicitly, had authorized it to take various actions in the war on terror because of legislation that was passed early on. Quoting now from the opinion. "The military commission at issue here," speaking of the trial set-up, "is not expressly authorized by any congressional act." So that is a repudiation of the administration's position, as well as a repudiation of the administration's position that the Geneva Conventions that are designed to protect prisoners of war don't apply here.

KAGAN: Bob, thank you. We'll be back and forth to you as you read on. Now to outside the U.S. Supreme Court, our Pentagon correspondent Jamie McIntyre, who attended the arguments.

I'd like to get your take on that. But first, what this basically means. I mean Guantanamo Bay is not going anywhere. This is saying, you can't do the court -- the war tribunal that they had suggested in terms of . . .


KAGAN: Yes, exactly.

MCINTYRE: Exactly, Daryn.

This ruling does not affect the future of Guantanamo Bay per say. Its clear that the administration would like, at some point, to close Guantanamo Bay, but that's sort of like saying the U.S. wants to get out of Iraq. The big question is how and when they close Guantanamo. And what they were hoping was that these military commissions would be a way forward for them to start processing and trying some of the detainees there. But what the Supreme Court has said is that military commission process that you've set up is not constitutional. It's a 5-3 ruling.

And, as you said, I attended the original arguments on this. And it's always difficult to predict how the Supreme Court is going to rule. You can't read too much into the questions. But it was clear during that hour and a half long debate presentation before the Supreme Court a few months ago that there were at least five justices who were highly skeptical of the government's contention that these military commissions adequately protected the rights of the detainees. And they particularly seemed to take on umbrage at the idea that Congress had preempted the Supreme Court's authority to intervene.

And we see in the decision today that both of those principles have essentially been struck down. What this means essentially is that the Pentagon's going to have to go back to the drawing board. They're going to have to come up with a new -- the Pentagon and the Justice Department -- come up with a new process for granting some sort of judicial process to the detainees. One that in the view of the courts will provide the appropriate constitutional protections. And, of course, lawyers for the defendants have complained all along that these procedures for these military commissions did not follow the, you know, the basic protections that they needed in order to defend their clients, including U.S. military attorneys who are defending some of the detainees at Guantanamo Bay.

So we're going to have to see an overhaul of the process. Nobody's going to be released from Guantanamo. Guantanamo's not going to close. But the idea that they were going to proceed with these commissions, well, that's not going to happen now.

KAGAN: All right, Jamie McIntyre at the Pentagon.

I'd like to welcome our viewers who are tuning in with us from all along the world watching on CNN International.

We continue our coverage of this historic decision out of the U.S. Supreme Court dealing with this idea of military tribunals that would deal with the detainees at Guantanamo Bay.

Back to our senior legal analyst Jeffrey Toobin.

Jeff, so really what this does, it puts those at Guantanamo Bay in limbo because all the Supreme Court has said, well you can't do that, you have to come up with a different idea.

TOOBIN: Well, they've been in limbo basically since this place opened in 2002. There have not yet been any of these trials because the legal machinations have been going. And now the Supreme Court, for the second time, has said to the Bush administration, you haven't done enough to protect the rule of law at Guantanamo. Here, in 2004, in the Hamdan case, they said, look, some sort of protections apply. The Pentagon and the Justice Department went back and they came up with a system that was tested this year, 2006.

Now the Supreme Court said, not good enough. Doesn't comply with the Geneva Convention. Doesn't comply with the American Constitution. Go back to the drawing board. We'll see whether the next rules work. In the meantime, year after year, 400 people are still there and they'll have some more protections ,presumably, under the rules that will be put in place but it's going to take a long time.

Jeff, quickly, a primer here. Some of the terms we're throwing around here. Geneva Convention. Enemy combatant. Prisoner of war. We've hard from the Bush administration Geneva Convention does not apply because these are not prisoners of war in the Bush administration's view. What's the difference here and why is the court ruling it this way, that the Geneva Convention, in the eyes of the court, does matter?

TOOBIN: OK. Just in sort of the big picture here. When someone's arrested in the United States, they're protected by the American legal system and the Miranda warnings and all the systems that we're familiar with. And people who are prisoners of war, in a normal -- in a war, they are protected by the Geneva Convention, which is a treaty signed by many countries, including the United States, which says how prisoners of war should be treated. Those are sort of the extremes.

What the Bush administration said is, we are going to treat these people at Guantanamo Bay neither as American criminal defendants nor as prisoners of war and invent what is mostly a new category -- enemy combatants. People who have even less rights than criminal defendants or prisoners of war. What the Supreme Court has said is, you haven't given them enough rights. They can't be treated the way you're saying you want to treat them. They've got to be more like prisoners of war as defined by the treaty, which the United States signed, known as the Geneva Convention.

KAGAN: All right, Jeff, thank you for that.

Let's go back to the U.S. Supreme Court and Bob Franken who continues to read through the decision.


FRANKEN: Let me just reinforce what Jeff is just saying about what this does not say. It does not talk about what's going to happen with Guantanamo Bay. Reading from Justice Stephens' Opinion. "We do not today address the government's power to detain him," meaning the defendant Hamdan, "for the duration of active hostilities. But an undertaking to try Hamdan and subject him to criminal punishment, the executive is bound to comply with the rule of law. Therefore, the question about what is going to happen at Guantanamo Bay continues to be an open question."

We have to remind everyone here that the president only recently has said he was looking for guidance about the fate of Guantanamo Bay. Looking for guidance in the form of this ruling from the Supreme Court. Which was interesting, by the way, because the administration had argued in court that the court didn't really have a role here.

In addition to which, and this is the kind of thing that I would call on Jeff to explain. The United States we have a set of laws, the conspiracy statutes, but the Supreme Court ruled that there is no international law, no international conspiracy law, so the conspiracy charge against Hamdan was invalid. What was so interesting about that is, as I waited today, I spoke to the Dutch lawyer who had written the brief on that case and that was their argument, you can't try the man for conspiracy because there's no international standard. The justices, obviously, went along with that rule. As you know, there's a huge debate going on about the applicability of international law. The justices, obviously, relied heavily on it starting with the Geneva Convention.


KAGAN: All right, Bob, we'll be back to you very quickly.

Let's welcome in Jeff Greenfield to take a better picture here. I think we have your audio situation fixed.

Jeff, what appears that we have is the U.S. Supreme Court limiting the powers of a war-time president.

GREENFIELD: Yes. And, Daryn, this is something that is highly unusual. Generally speaking, when a president asserts war-time powers, the courts back away. They say, this isn't our turf. When Lincoln suspended the writ of habeas corpus during the civil war, somebody brought that to the court. The court backed off. When the Japanese-Americans were interned in World War II in the Koramatzu (ph) case, the Supreme Court said, not our turf.

The only time I can remember, and Professor Toobin might correct me, where the court has explicitly said to a president, you can't do something, during the Korean war, President Truman, during a steel strike, tried to seize the steel mills and draft the workers into the army on the ground that we needed the steel for the war. And the court said, you don't have to power to do that.

But for the court to step in here and say these military tribunals you created, no go, in the midst of what I guess you can call a permanent, ongoing war with no end in sight, no borders, no limits. I think the court was saying, as it did a couple of years ago in the case of permitting people to challenge their detention, look, even in a war the president does not have total power.

And there's a piece in Mr. Toobin's magazine, "The New Yorker," this week that suggests that at least some of the people in Guantanamo, according to military intelligence people, may be there even though they hadn't done anything. So I think the court is looking at this and saying, yes, you've got a lot of power, Mr. President, in fighting terror and prosecuting the war, but you don't have unlimited power to create a wholly new mechanism out of old clothes.

KAGAN: Right. But just to be clear, it is dealing with a much narrower question. It's not looking at the whole question of Guantanamo Bay. It's looking at this judicial process that's to come out of this and you haven't gotten that piece of it correct. GREENFIELD: That's right. And even in the case where they slapped down the president, they said the president's right to detain these people, we're not challenging that. And I'm not sure whether or not the president can either say, OK, if I can't try them, I'll just keep holding them until the war on terror is over. I'm not sure the court would let him do that but this is a very gray area we're in, Daryn.

KAGAN: Well, as Jeff Toobin was pointing out, they were in limbo, those at Guantanamo Bay, and that limbo continues as they try to figure out what to do with them.

Let's go back outside the U.S. Supreme Court and to our Jamie McIntyre, chief Pentagon correspondent.


MCINTYRE: Well, Daryn, just gain reading through the decision, it's a multi-part decision. I think I said before that the majority was five justices. Actually there are five justices for various parts of the decision. But in many cases there are four justices with one concurring with other parts -- some parts and the other.

It's interesting, though, one of the things that they decided was that, in this case, the defendant, Hamdan, who was identified as a driver and bodyguard for Osama bin Laden, was not charged with an offense they said that was triable by a military commission. Among the charges he was charged with was conspiracy and the court specifically ruled that that is not something that could be tried by a military commission. In fact, they say that he's not -- was not detained for a specific overt act. He was captured in Afghanistan after September 11th. And so they also say that in that case military commission would not be appropriate way to try him.

But you can see, basically, the court has taken the position that the entire procedure is inadequate and it's going to have to be revamped. And what that means for the detainees at Guantanamo Bay that are between -- well up to 500 at this point -- is that they remain in an indeterminate state while the government has to go back to the drawing board and come up with new procedures to either repatriate them to other countries, to let them go or to come up with a new procedure for trying them. And what the court is saying is that that procedure has to be consistent with the uniform code of military justice or the U.S. legal system and it has to be consistent with the Geneva Conventions. And those are standards that, at the moment, have not been met.

KAGAN: OK, Jamie, stay with us for a second.

I want to explain to our viewers at home and those watching around the world some basics here.

Nine justices on the U.S. Supreme Court but the chief justice, John Roberts, did not participate in this decision because last year when he was a federal appeals court judge he participated in another ruling on the same defendant Hamdan. Now, Jamie, back to you. If you can explain a little bit more. This decision was 5-3. But you're saying parts of it looks like it's split 4-4. And that's what we were waiting to see. Because if there was a tie, this was going in go in favor of the Bush administration.

MCINTYRE: Well, no, I'm just saying that if there had been a tie, it would have essentially left a lower court ruling stand.

KAGAN: Right.

MCINTYRE: The one that Chief Justice Roberts ruled in favor of the government on.

All I'm saying is that while you can find five justices in favor of various parts of this, it's actually a complicated decision. It's broken down into five or six different parts. In many cases, there are four justices who have written the main opinion and then there are justices like Kennedy who have concurred with parts of the opinion and not others. I just wanted to indicate that it's not quite as simple as just saying it's a 5-3 decision.

KAGAN: OK. Thank you for that.

Let's go back inside the U.S. Supreme Court. That's where our Bob Franken is. He's been taking us through this coverage as he has a chance to read through the decision and as news unfolds and breaks.

Bob, now what do you have?

FRANKEN: Well, Jamie make the good point about how this is a very fractured decision, but you end up with an effective decision which says that the Geneva Convention must be applied and that the United States has not properly formed the military commissions. It did not say that there cannot be military commissions.

What's interesting about this is the fact that in the opinion, the prevailing opinion by Justice Stephens, he also says that Congress had not properly done what it was supposed to do when it passed this legislation that was supposed to negate the need for the proceeding entirely. "Congress's rejection," he wrote, "the very language that would have achieved the result the government had urged weighs heavily against the government's interpretation." Meaning that the so-called Detainee Treatment Act was not something that should be applied.

What is so interesting about this is that we had not only a confrontation between two branches of government, but all three with the judicial branch of government saying, wait a minute, we are the ones who have to take precedence and ruling on the legality of this. The administration, the executive branch, and the legislative branch of the Congress are going to have to take a secondary role, at least for now, based on our ruling.

This is as fundamental as Marbury versus Madison, which goes all the way back to 1791, which is the ruling which established the Supreme Court's authority to make this kind of interpretation.

KAGAN: Good point to go to our Jeff Greenfield.

Jeff, this falls clearly into an ongoing debate and argument and discussion we see taking place in this country where you're looking at the power of the different branches of government. Bob making that interesting point. It's not just the court slapping down the executive branch, but a legislative branch as well, at a time when a lot of conservatives in this country are concerned with the power of the courts.

GREENFIELD: Absolutely. And not only that. But even before 9/11, there were people, Dick Cheney was one of the most prominent of them long before he became vice president, who were arguing that ever since Watergate that Congress had been eating away at the legitimate power of the president and that it was an important policy goal to reassert the power of the executive.

After 9/11, for obvious reasons, that power -- that argument took on enormous potency. And you are finding some people, even on the conservative side of the spectrum, who are very worried.

I was just down in Washington Monday talking to a couple of Republican senators who felt as a general proposition that the executive branch, this executive branch in particular, was asserting powers that were almost limitless in the field of how you wage a war on terror. Now, you know, you don't have to be paranoid and think that the Bush administration will try to arrest the editors of the "New York Times" as enemy combatants. That's kind of out of cloud cuckoo land. But the idea that the executive can, on its own, assert almost limitless power to deal with people it regards as enemy combatants, is one that where the Congress has looked at -- they've been worried about it.

But, frankly, I think the political picture of trying to tell a president what he can't do when he's allegedly waging war on terror, that also weighs heavily on the Congress. They don't particularly want to be seen as impeding the president's power to fight this battle.

KAGAN: All right, Jeff, thank you.

And we are at the half hour, which means we're exactly one hour away from President Bush's news conference. He'll be holding that news conference with the prime minister of Japan, and you will see that live here on CNN.

And, of course, our lead story, as we talk to viewers across the country and all around the world on CNN International News, out of the U.S. Supreme Court, as the court rules that the president overstepped his authority, the court says, in ordering military war crimes tribunals for those who are being held at Guantanamo Bay. The detainees there.

Let's bring in our senior legal analyst Jeffrey Toobin as we look at this decision and what it means -- Jeff.

TOOBIN: Well, this is a long-running drama. And, you know, as Jeff Greenfield was just saying, you know, there have been two big themes in the Bush administration that have really begun since 9/11. One is executive power, restoring executive power versus Congress in the courts. Another is American power versus international institutions.

And in both of these areas, the Supreme Court rejected the Bush administration here. It said executive power is not enough. You need the courts involved. You need Congress involved to deal with how these prisoners are going to be treated. And American law alone is not what controls the fate of the prisoners in Guantanamo, also international treaties like the Geneva Convention.

So in the big picture, this is a rejection by the Supreme Court of the Bush administration's position on two really major confrontations that have been going on for the past five years.

KAGAN: Let me ask you on this legal point. This case, of course, focusing on Salim Ahmed Hamdan, who was a bodyguard and driver for Osama bin Laden. He's been held for four years on this one conspiracy count. This decision also saying you can't do a conspiracy count because you don't have a conspiracy law in international law. So what does this decision mean for this particular man?

TOOBIN: Well, I think that's going to be a hard question. And I can't tell you the answer. Certainly, his lawyers will go into federal district court almost immediately and say, look, judge, let this guy go. And the administration will either have to file new charges that comport...

KAGAN: As we saw in the case of Jose Padilla. When it didn't work one way, as an enemy combatant, they said, OK, well, we change our mind. We're going to do regular criminal charges.

TOOBIN: Right. I am willing to bet you, Daryn, one way or another we are not going to have an O.J. Simpson moment where Mr. Hamdan is just going to be walking out of the prison -- walking out of Guantanamo tomorrow. The Bush administration, given what they said about this man,they are going to keep him in there one way or another. They're going to have to figure out another reason to do it.

KAGAN: So beside talking about what is in this decision, also important to focus on what is not in this decision. It's not about Guantanamo Bay. It's not saying whether you can have that or not.

TOOBIN: Well, it's not saying -- it's not saying you can't have some sort of facility. But it is saying if you are going to have a Guantanamo Bay, you have to follow the -- these rules. And...

KAGAN: Well, but doesn't it say -- not if you're going to have a Guantanamo Bay, but if you're going to have a certain judicial system for the people who are being held there?

TOOBIN: Right.

KAGAN: And the Bush administration put forward, OK, we're going to do it this way. All the court's saying is, no, you can't do it that way. You got to go back and try it again.

TOOBIN: Correct. That's right. I mean, the issue of whether you can have a place like Guantanamo Bay, you know, off the mainland of the United States, that wasn't at issue in this case. What is at issue is the Bush administration saying look, we have a procedure in place for treating the people in Guantanamo Bay. And the Supreme Court said, nope, not good enough, try again. That's the only thing that was decided today.

KAGAN: All right. Jeffrey Toobin, thank you so much.

Once again, huge news coming out of the U.S. Supreme Court concerning military war crimes tribunals and can you have them? High court says as it's planned now, no, you can't. Our coverage will continue.

Also, in less than an hour, President Bush will be holding a previously scheduled news conference. You'll see that live right here on CNN.

Other news ahead. Washed away homes and businesses, succumbing to floodwaters in the East. An update is just ahead.

You're watching CNN, the most trusted name in news.


KAGAN: Welcome back to CNN LIVE TODAY.

We continue our breaking news coverage out of the U.S. Supreme Court. The high court ruling that President Bush overstepped his presidential authority when the administration wanted to set up military war crime tribunals for detainees at Guantanamo Bay. We've been watching this story develop at the Supreme Court and also talking with our senior legal analyst Jeffrey Toobin.

Jeff, a 5-3 decision. You say that doesn't really matter, as long as it wasn't a tie?

TOOBIN: And you know, politics is never far from the Supreme Court. Here you have the opinion written by John Paul Stevens, 86 years old. The only appointee to the court by President Ford. Someone who started in the court as a sort of core moderate who is now become the leader of the liberal wing of the court. As I say, 86 years old. His retirement has been rumored for a long time, but he is in robust health. He looks very healthy. And he's obviously full of vigor. And he's the only member of the Supreme Court who drafts all his own opinions. Doesn't use his law clerk.

KAGAN: How does it work, Jeff -- how does it work that the most liberal member would end up drafting this majority opinion? How do they decide?

TOOBIN: Good question, Daryn. The way it works is the senior justice in the majority, whether it's the chief justice or the longest serving justice, gets to assign the opinion. John Roberts, the chief justice, didn't participate in this case. Not a factor.

Justice Stevens was the senior justice; that is, the longest serving justice in the majority. He assigned the opinion to himself. That's often how it works. They assign themselves the best opinions and the most important cases. That's what Stevens did. No surprise there. And he took, apparently, full advantage.

KAGAN: There you go. Back to right outside the court, our Pentagon correspondent Jamie McIntyre was inside the court when these arguments were made a couple months ago, and joins us for our coverage -- Jamie.

MCINTYRE: Yes, and as I was saying, Daryn, you know, again, it's impossible to predict a Supreme Court decision based on the kinds of questions the justices ask during the oral arguments. But you could see in this case that there were -- you could count -- five justices who were highly skeptical of the government's position that these military commissions were, in fact, constitutional, and that the court's jurisdiction has essentially been preempted by an act of Congress. Very skeptical questioning about that.

The only real support coming from Antonin Scalia and the other new justice, Justice Alito. The rest of them remained very skeptical. And of course Justice Roberts, the new chief justice, recused himself from this case because he ruled in the government's favor in a lower- court decision.

So this is one of the rare instances really where the decision has come down pretty much the way it was telegraphed during the oral arguments.

Again, a repudiation of the executive's contention that essentially it can setup the process of commissions. Set the rules, decide which defendants are going to appear before them. And now they're going to have to go back to the drawing board and come up with new procedures for trying these people, something that is more in conformance with the uniform code of military justice, with the Geneva Convention, and they may also have to provide more access to the federal courts as the detainees challenge their detention.

KAGAN: Jamie, real quickly, you have the decision there with you?


KAGAN: So did the 5-3 breakdown like you were saying, that it was Justice Scalia and Alito, and who would be the third that was on that 5-3 split?

MCINTYRE: Well, it's -- there are four justices who sort of tended to agree to the major part of the decision, and those are Justice Stephens, Justice Souter, Ginsburg and Breyer. Then you get into the breakdown of various justices like Kennedy who concurred with parts of the decision and not with others. So that's -- again, it gets to be a little complicated, but it's basically a 5-3 decision. KAGAN: Which would be consistent how we're seeing the court now develop, as Justice Kennedy kind of becomes that swing vote that Justice Day O'Connor was before she retired.

Jamie, thank you. We'll be back to you.

But now other breaking news to get to.

Looking at live pictures. This is Philadelphia. Yes, Delaware River, as we're looking as the water makes its way southward. The flooding story far from over.


KAGAN: Boy, it is a hopping news day, because now we have news out of the Veteran's Affairs department. Remember the laptop that was lost, leading to exposing millions of veterans to I.D. theft. Well, the head of that department now announcing that that laptop has now been found.

Let's listen to him.


JIM NICHOLSON, HEAD OF VETERAN AFFAIRS DEPT.: The subject hard drive and laptop computer that was stolen from A V.A. employees home has been recovered. It's been confirmed that that has been recovered. The investigation continues to see whether or not this information has been compromised in any way or copied.

There is reason however to be optimistic. I want to thank the law enforcement community that's been involved in this. They've done a terrific job and collaboration.


KAGAN: Well, once again, that's Jim Nicholson, the head of the Veteran's Affairs Department. The laptop that had all that I.D. information of the millions of veterans across the U.S., the laptop or hard drive has been found. And you can hear Nicholson say unclear whether the information has been compromised. More on that story as it develops.

Now back to our flooding story. One of the towns being hit and threatened, Bloomsburg, Pennsylvania. I have with me on the line right now the mayor, Mayor Claude Renninger.

Mr. Mayor, thank you for being with us.

MYR. CLAUDE RENNINGER, BLOOMSBURG, PENNSYLVANIA: Good morning. Glad to help you out.

KAGAN: Yes, I wish it was under dryer circumstances we could talk to you.

Tell us about the status of your town right now, sir. RENNINGER: Actually it's very dry out there as far as it looks in the atmosphere. Our problems are in the river, and the stream that connects to the river which multiplies the effect that has happened here in Bloomsburg.

KAGAN: And I just want to explain to our folks at home. We're talking to the mayor of Bloomsburg, but we're looking at pictures closer to Philadelphia.

Now, I understand Mr. Mayor, your town doesn't have a natural protection from the flooding.

RENNINGER: We are the only major community in a 50-mile stretch of the Susquehanna River that is unprotected by levees, or walls or some form of community flood protection.

KAGAN: And how has that played out in the past?

RENNINGER: That has been a major problem and expenditure for three of our major industries. One of the major suppliers of general motors carpeting for vehicles is located in the west end of our town. And that's the type of industry that requires on-time delivery, and they have to make every effort to get back in production as soon as they can.

KAGAN: What about drinking water in your town, sir?

RENNINGER: Drinking water became a more severe problem than ever in any previous flood. Our water-filtration plant is located along the creek that had record flood levels, and it's not in operation right now. The National Guard has brought in there have been -- Coca- Cola company has donated water bottle for the community. And we have other industries and companies helping us out with that matter.

It's the distribution of that the requirement for manpower to cover the west end of town where over 470 homes are located.

KAGAN: Have you evacuated those homes, sir? Or are you telling people to stay put?

RENNINGER: It was a voluntary evacuation. Police notified homeowners of the need to evacuate. Obviously there are many who don't. And they present problems for our fire department and rescue people. We've had Coast Guard helicopters in here, rescuing people who did not heed the recommendations to evacuate. And that presents a problem.

KAGAN: Boy, this is a busy day in your town. And more might be to come. We're going to let you go, and wish you well in dealing with the crisis there.

Thank you. That's Mayor Clause Renninger of Bloomsburg, Pennsylvania.

Once again, big news out of the U.S. Supreme Court today as the high court tells the Bush administration you cannot have war crimes tribunal to deal with Guantanamo Bay detainees. That is coming out of the Supreme Court. Coming out of the White House, a previously scheduled news conference set to begin in about 43 minutes with President Bush and the prime minister of Japan. You'll see that live right here on CNN.

Other news to get to as well. Israeli incursions into Gaza is getting more intense. The search for a missing soldier enters a fifth day. -Fast moving developments from the Mideast.

You are watching CNN, the most trusted name in news.


KAGAN: We continue to follow this ruling out of the U.S. Supreme Court. The high court ruling that President Bush overstepped his presidential authority by setting up a war crimes tribunal situation for Guantanamo Bay detainees. That coming out of the high court in the last -- well, in the last hour. We expect a news conference with President Bush, previously scheduled. That will start at the bottom of the next hour.

And meanwhile, let's go for reaction at the White House with our Elaine Quijano -- Elaine.

QUIJANO: Good morning to you, Daryn. Well, still awaiting reaction from the White House. As you noted that news conference is likely where we will hear from President Bush and he will be asked, likely, about this issue.

But one thing certainly that President Bush has said time and time again is that he views this war on terror as a different kind of war. In fact, in Vienna last week during a meeting with European Union leaders, the president reiterated that, saying that for Europe, September 11th was a moment, but for him and members of his administration and the United States, that, in fact, it was a change of thinking.

Now, though, the stunning blow to the executive authority. It is certain that President Bush, again, Daryn, will be asked about this at that news conference coming up in about 40 minutes -- Daryn.

KAGAN: Well, and tell us a little bit more about that news conference with the prime minister of Japan.

QUIJANO: Well, that's exactly right. An arrival ceremony took place this morning on the south lawn of the White House. Plenty of pomp and circumstance for the man that President Bush calls one of his best friends in the international community, and that is Japanese Prime Minister Junichiro Koizumi. Now, the president, with this visit, is essentially saying thank you and farewell to his best friend, who will be stepping down after five years in office. He'll be stepping down in September.

Now, in addition to being very close political allies, the two leaders actually have an extremely close personal affinity. In fact, that affinity was evident right from the start of their relationship back in 2001, when the two leaders met for the first time in Camp David and bonded over a game of catch. And their relationship only strengthened after the September 11th attacks, when Prime Minister Koizumi reached out to President Bush and assured him of Japan's strong support in fighting the war on terror.

As you know, Daryn, a number of Japanese troops have been in Iraq to help with humanitarian efforts taking place there. And even the talk of Tokyo's recent announcement of a withdrawal certainly no surprise to Washington. But one issue on the table today is North Korea. The two leaders certainly have been in sync when it comes to that issue.

But perhaps the highlight of this, after the news conference today, there will be a dinner tonight. But the two leaders will head over to Graceland. Prime Minister Koizumi is actually a huge Elvis fan, in addition to liking Westerns, as well as baseball. He really likes Elvis and so President Bush, about a year ago, according to a senior administration official, said, well, why don't we take him to Graceland? That is what's going to be happening. And we're told, Daryn, by this senior official, that on Air Force One on the way over, they'll be playing Elvis movies.

KAGAN: All right. They're making the pilgrimage, as we like to say here in the south. Going to Graceland. All right, thank you, Elaine.

And once again, you will see that news conference live here on CNN. It begins at 11:30 a.m. Eastern.

News continues. We are back after this.


KAGAN: A major morning of news as we push into this next hour. The biggest story coming out of the U.S. Supreme Court, as the high court sends the Bush administration back to the drawing table and how to deal legally with the detainees at Guantanamo Bay. More ahead on that, as well as looking forward to President Bush's news conference with the prime minister of Japan. That is set to start at 11:30 a.m. Eastern. You'll see that live here on CNN.



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