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-Caveat Lector- High court test in terror panel case:
U.S. justices won't duck
Bush military commissions issue
Washington -- A long-awaited test of the judiciary's power during wartime came to the Supreme Court on Tuesday, and, contrary to the urging of the Bush administration, the justices do not seem inclined to duck it.www.ctrl.org DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance—not soap-boxing—please! These are sordid matters and 'conspiracy theory'—with its many half-truths, mis- directions and outright frauds—is used politically by different groups with major and minor effects spread throughout the spectrum of time and thought. That being said, CTRLgives no endorsement to the validity of posts, and always suggests to readers; be wary of what you read. CTRL gives no credence to Holocaust denial and nazi's need not apply.During a 90-minute oral argument on the legality of the military commissions President Bush has set up to try suspected terrorists, most members of the court resisted -- sometimes sharply -- the administration's request to dismiss the case because of a new federal law circumscribing appeals by suspected terrorists.
Justice Anthony Kennedy told Solicitor General Paul Clement that he has "trouble with the argument" that, because of the new law, court challenges to the commissions must wait until the trials are over.
"I had thought that the historic function of habeas corpus is to ... test the jurisdiction and legitimacy of a court," Kennedy said. Habeas corpus is the legal vehicle through which prisoners challenge the lawfulness of their detention by the executive.
The court's defense of its own turf does not bode well for the Bush administration's arguments in defense of the military commissions, but it was still unclear how the justices might ultimately rule.
Kennedy pitched one approach, under which the court might uphold the military commissions, as the administration wants, but require that they proceed in accordance with the Geneva Convention, an international treaty that protects war detainees, as its opponents urge. Then, he suggested, the court could "just remand it for (a lower court) to go into all these arguments."
Other members of the court seemed attracted to invoking the Geneva Convention, saying that the administration's position creates a double standard because it accuses alleged terrorists of violating the laws of war while denying them the protections of international law.
"I don't see how you can have it both ways," Justice David Souter told Clement.
Chief Justice John Roberts is not participating in the case because, as an appeals court judge, he was part of the panel whose ruling in favor of the commissions is under review at the Supreme Court now. If the remaining eight members of the court split 4-4 on the merits, the lower court's ruling would be affirmed.
In a Nov. 13, 2001, military order, Bush declared that military commissions would try and sentence foreign terrorism suspects for alleged war crimes.
The commissions immediately came under fire from civil libertarians and other critics who argued that the president's order was not properly authorized by Congress, violates the Geneva Convention, and provides for no effective appeals.
The case before the court Tuesday arises from a petition for habeas corpus brought by Salim Ahmed Hamdan, a former chauffeur for Osama bin Laden. He is one of 10 Guantanamo detainees scheduled to face military trials so far. No commission has yet reached a judgment in any case.
The Bush administration argues that military commissions are a time-honored instrument of warfare, amply authorized by the president's constitutional powers as commander in chief, laws on military justice and a Sept. 14, 2001, congressional resolution sanctioning war in response to the al Qaeda attacks of Sept. 11.
A decision in the case is expected by July.
The case is Hamdan vs. Rumsfeld, No. 05-184.
--------------
The law vs. the government
IF POLITICS MAKES FOR strange bedfellows, as the saying goes, so does the law. In Tuesday's arguments of a landmark Supreme Court case challenging President Bush's power to deal with "enemy combatants" any way he sees fit, several justices appeared to be allied with Osama bin Laden's former driver. That may be because the court itself, and the nation's judicial branch, seemed to be as much in the government's cross hairs as any alleged terrorist.
In the aftermath of the 9/11 terrorist attacks, both the White House and Congress have tried to curtail judicial review of proceedings against detainees picked up on the battlefield (a somewhat amorphous concept in this war) and now held at Guantanamo Bay or elsewhere. Salim Ahmed Hamdan, the plaintiff in the case, is to be tried by a special military tribunal that does not provide the same procedural safeguards accorded defendants in a court-martial, or as required under the Geneva Convention. His lawyers are challenging the legality of this makeshift judicial system, but late last year Congress passed a law limiting access to the federal courts for those detained in the war on terrorism.The arguments before eight justices — Chief Justice John G. Roberts Jr. recused himself because he ruled on this case while an appellate judge — exposed the case's procedural and jurisdictional complexities.
Did Congress intend to impose its new limits on judicial review to cases already being litigated? Based on the tenor of their questions, a majority of the justices appeared offended by the government's notion that Congress can retroactively take away someone's right to his day in court. Indeed, it is not clear that Congress could do so under the Constitution, even for future cases.
For their part, [Republican] justices Antonin Scalia and Samuel A. Alito Jr., comparing this case to run-of-the-mill criminal cases, suggested that Hamdan should not be bringing this suit until convicted of a crime, if then. But that makes no sense if the issue at stake is the legal competence of the tribunal itself. There have been military tribunals in the past for enemy combatants who were not prisoners of war covered by the Geneva Convention, most recently during World War II. But there is some doubt whether Hamdan can be tried solely on conspiracy charges in such a court. Conspiracy is not recognized as a "crime of war" that these tribunals are designed to adjudicate.
It is always dangerous to make assumptions about the outcome of a case based on the justices' questions. But it was heartening to hear a majority of justices practically bristle at the government's assertion that the court should have no say on the boundaries of presidential authority in this war. The court should not allow the other two branches of government to usurp its constitutional role.-------------
Court Appears Wary of Terror War Tribunals
Most justices seem open to a prisoner's claims thatnew presidential powers go too farWASHINGTON — The Supreme Court gave a skeptical hearing Tuesday to the Bush administration's claim that the president has the power on his own to create and control special military tribunals to punish foreigners he deems to be war criminals.
Five of the eight justices hearing the case commented that the laws of war and the Geneva Convention set basic rules of fairness for trying alleged war criminals.And they questioned whether the president was free to ignore those basic rules — as well as the rules of American military law.
The justices' skepticism suggested a second setback might be looming for the administration's legal strategy in the fight against terrorism. Two years ago, the high court said war — even a new kind of war on terrorism — did not give the president a "blank check" to make new legal rules for capturing and holding prisoners.
The case heard Tuesday concerned the rules for punishing these prisoners. But the tenor of the argument suggested the court would again reject President Bush's claim of unilateral power to try and punish alleged Al Qaeda conspirators.
"If you defer to this system and give the president the ability to launch all these military tribunals … you will be countenancing a huge expansion of military jurisdiction," Georgetown University law professor Neal K. Katyal told the justices.
Justice Stephen G. Breyer appeared to agree. "If the president can do this, well then he can set up a [military court] to go to Toledo Ohio, [arrest anyone] and not have any trial at all," he said.
Katyal was representing Salim Ahmed Hamdan, a native of Yemen and a former driver for Osama bin Laden. Hamdan was picked up in Afghanistan in 2001, and has been held since then at the military jail for terrorism suspects at Guantanamo Bay, Cuba.
The administration, led by Defense Secretary Donald H. Rumsfeld, has charged him with being a war criminal for having conspired with Al Qaeda to kill Americans.
But the case of Hamdan vs. Rumsfeld is not a test of whether Bin Laden's driver is guilty as charged. Rather, it is a test of the president's power to act as lawmaker, prosecutor, judge and jury in the war on terrorism.
Hamdan's lawyer says he has no objection to having his client tried under the rules of courts-martial used by the U.S. military. Most lawyers say these trials are fair because the prosecutors and judges have some independence from the command structure and because the defendant can confront and challenge the evidence used against him.
The Geneva Convention says foreign prisoners of war can be tried as war criminals, but they should be tried by reputable courts with established rules of fairness.
But in November 2001, President Bush issued an order saying his administration would not follow the Geneva Convention. Instead, his order said, terrorists and captured Al Qaeda operatives would be tried in special military tribunals.
The president reserved for himself the power to define which offenses would be crimes, who would prosecute the cases, what rules would be followed and who would serve as judge and jury. And after the trial, those convicted could appeal their cases to the president.
This system is "literally unburdened by the laws, Constitution and treaties of the United States," Katyal said.
U.S. Solicitor General Paul D. Clement, representing the administration, said that ever since Gen. George Washington had a British spy tried and hanged, the "commander in chief … has exercised the authority to try enemy combatants by military commissions."
The case is complicated by the fact that in December, Congress passed a law saying the courts had no jurisdiction to hear claims from Guantanamo prisoners. Clement said Hamdan's appeal should be dismissed.
New Justice Samuel A. Alito Jr. agreed that the high court should not rule on the issue now. "In a criminal litigation, review after a final decision is the general rule," he said. If Hamdan is convicted, he could file an appeal in the federal courts, Alito added.
But most of the other justices disputed the idea that Congress could bar the Supreme Court — or any federal judge — from hearing a writ of habeas corpus from a person held in U.S. custody.
In old English law, people imprisoned by the king could file a writ of habeas corpus — a request to come before a judge. The U.S. Constitution adopted the idea and says "the writ of habeas corpus shall not be suspended [except] in cases of rebellion or invasion."
President Lincoln suspended habeas corpus during the Civil War.
Hamdan filed a writ of habeas corpus to challenge the military trials, but Clement cited the action by Congress taking away the court's authority to hear it.
"I have trouble with that argument," Justice Anthony M. Kennedy said. "The historic [writ] of habeas is to test whether or not you are being tried by a lawful tribunal."
Justice Antonin Scalia disagreed. "We don't intervene on habeas corpus…. We wait until the proceeding's terminated."
Kennedy disputed that. "If a group of people decides they're going to try somebody, we wait until that group of people finishes the trial?" he asked.
Justices David H. Souter, Ruth Bader Ginsburg and John Paul Stevens joined Breyer and Kennedy in clashing with the government's lawyer.
Chief Justice John G. Roberts Jr. was missing from the argument because he had ruled on the case while he was a U.S. appeals court judge.
If the court were to split 4-4, the government would win. But it sounded as though five of the justices were inclined to deal the administration a defeat.-------------
Guantánamo's day of reckoning in supreme court
· Case pits presidential powers against law of war
· Detainee argues tribunals are unconstitutional
Suzanne Goldenberg in Washington
The Guardian (UK), March 29, 2006
The US supreme court was urged yesterday to rein in President George Bush's use of his powers as a wartime president, challenging his order to dispatch al-Qaida suspects to trial before military tribunals.In arguments that could redefine the balance between presidential power and the laws of war, lawyers for Salim Ahmed Hamdan, an inmate at Guantánamo, told the court that Mr Bush had violated basic military protections with his November 2001 executive order setting up the tribunals.
Mr Hamdan, a Yemeni accused of driving a pick-up truck for Osama bin Laden, was captured in Afghanistan in November 2001 and charged with war crimes. The Bush administration claims he conspired with the al-Qaida leader to carry out attacks in the US. He says he was merely working to support his family, and needed the $200-a-month salary.The case challenges the Bush administration's justification for holding people without recourse to US courts or the Geneva convention.
Terror suspects brought before the tribunals do not have the right to an attorney of their choice or to see the evidence against them. Even if they are acquitted and freed, the verdict can be reversed by the defence secretary, Donald Rumsfeld.
Mr Hamdan's lawyers contended yesterday that that makes the tribunals unconstitutional because they allow the president to define the crime, and select the prosecutor and judges who act as jury.
"This is a military commission that is literally unburdened by the laws, constitution and treaties of the United States," one lawyer, Neal Katyal, told the court.
To date, none of the 500 or so detainees at Guantánamo have appeared before a military tribunal, although 10 have been consigned for trial.
Under questioning from justices Antonin Scalia and Samuel Alito, Mr Katyal rejected the administration's argument that Mr Hamdan should wait until after his appearance before a tribunal to challenge the president's definition of the laws of war. "The government has had four years to get their charges together on Mr Hamdan," he said.
"We are talking about just a set of core ideas that every country around the world is supposed to dispense when they create wartime trials, and even that minimum standard the government doesn't want to apply here."
Lawyers for the Bush administration say the president derives his authority for the executive order from his powers as commander in chief. In addition, they note that Congress recently enacted legislation barring Guantánamo detainees from being heard in the US courts.
The chief justice, John Roberts, has withdrawn from the case because he ruled on Mr Hamdan while serving on an appeals court. But Justice Scalia has resisted demands to withdraw from civil rights organisations, members of Congress, and a group of retired US generals and admirals. He came under a barrage of criticism after comments at an appearance at the University of Freiburg in Switzerland this month were reported by Newsweek magazine.
In his discussions, Justice Scalia reportedly said terror suspects did not deserve the right to a trial, adding that he had a son who had served in the US military in Iraq: "I had a son on that battlefield and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy."
Lawyers for the detainees had been looking forward to yesterday's proceedings as a chance to begin pulling down the legal framework claimed by the Bush administration in its conduct of the "war on terror".
The case has attracted several prominent supporters, including the former secretary of state, Madeleine Albright. In a speech on Monday, a military lawyer for Mr Hamdan, Navy Lieutenant Commander Charles Swift, said all he wanted was a full trial. "When our citizens are abroad and these things are done, how will we say it was wrong?" he said.
But it is not entirely clear that the supreme court will emerge with a firm directive when it hands down its decision later this year. The withdrawal of Chief Justice Roberts brings the membership of the court down to eight, deepening the potential for a deadlock.
More importantly, the detainees may have been shortcircuited by a law passed by Congress last December which barred the use of torture, then added a rider denying Guantánamo detainees the right to have their cases heard in US federal courts.
Backstory
The establishment of military trials at Guantánamo Bay defines the Bush administration's view of the sweeping powers of a US president in wartime. In November 2001, President Bush signed an order setting up military commissions to try suspected members of al-Qaida, saying the terror suspects were not entitled to Geneva convention protection.
He said they were not part of a regular army nor US citizens entitled to a US court hearing. No trial has taken place under the commissions, which bear no relation to courts martial. Suspects are not guaranteed a lawyer and do not see all the evidence. Any commission decision can be overturned by defence secretary, Donald Rumsfeld
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