Monday, March 27, 2006


By William Fisher

This week the U.S. Supreme Court will hear what will almost certainly be one of the landmark cases of the past fifty years.

Their decision will determine whether the Supreme Court will continue to assert its authority to review and check the executive’s power to detain and try individuals caught up in the “war on terror.”

The case is called Hamdan versus Rumsfeld. The Hamdan is Salim Ahmed Hamdan, who has been a prisoner at Guantanamo Bay, Cuba, since 2002. The Rumsfeld is Defense Secretary Donald Rumsfeld, whose department has jurisdiction over all detainees held at U.S.-controlled military prisons.

Since the Court agreed to hear Hamdan’s case, the administration of President George W. Bush filed an extraordinary motion to dismiss it. The government argues that a law passed by Congress late last year was intended to deny the right of habeas corpus to all prisoners in U.S. custody -- including not only new cases, but those that were pending at the time Congress acted. The Bush administration contends that Congress intended to strip the high court of its jurisdiction to hear any challenge arising out of the detentions at Guantanamo Bay.

But according to Deborah Perlstein, an attorney with legal advocacy group Human Rights First, “Apart from the weakness of the Administration’s case on the merits, the statute passed by Congress last year makes clear its intent to apply only to cases arising after Hamdan’s.”

Perlstein told us, “It’s hard to see even this new Court accepting that kind of frontal assault on its own power.”

Two new Justices have been appointed to sit on the Supreme Court in the past few months. John Roberts has become chief justice, replacing William Renquist, who died. And Samuel J. Alito Jr. has joined the court, replacing Sandra Day O’Connor, who resigned after 24 years as an associate justice.

Even if the justices resolve the court-stripping issue, it will be left to decide two other weighty questions: Does the President have the authority to convene military commissions to try alleged terrorists and ignore the procedural protections that Congress and the Constitution have long afforded those facing U.S. military trials? And are the Geneva Conventions – the laws of war that the United States long ago ratified and made part of U.S. law – enforceable by individuals in federal court?

According to Perlstein, “Either one of these questions is generational in nature. Taken together, they give Hamdan the potential to be one of the most important cases the Supreme Court has heard on the issue of presidential power in the past half-century.”

To complicate matters further, Chief Justice Roberts has recused himself from the Hamdan case because he participated in ruling on it in a lower court before his recent appointment. That means eight justices will hear the arguments, thus eliminating the possibility of the 5-4 decision often made by this court in contentious cases.

But, says Perlstein, “More significant than the absence of Chief Justice Roberts, is the absence of Justice Rehnquist and O’Connor in this kind of case. Those justices had for the past nearly 30 years been at the leading edge of the Court’s assertion of its own power, above Congress and the Executive, as a co-equal branch of government. Whether the absence of their voices will have left a court more reluctant to weigh in on matters of individual rights in the face of government power remains to be seen.”

The Hamdan case has been bouncing around the U.S. justice system for several years, beginning in 2004, when the DOD Formally referred charges against the 34-year-old Yemeni national, one of six Guantánamo detainees who were designated by President Bush in July 2003 as subject to trial by military commission under the President’s Order of November 13, 2001. Hamdan was captured by Afghan forces and handed over to the U.S. military in Afghanistan in late 2001.

The government accuses Hamdan of serving as Osama Bin Laden’s bodyguard and personal driver, delivering weapons to al Qaeda members and purchasing vehicles for Bin Laden’s security detail. He is formally charged with conspiracy to attack civilians, attack civilian objects, murder, destruction of property, and terrorism.

Held at the U.S. Naval Base at Guantánamo Bay, Cuba, since early 2002, Mr. Hamdan is currently represented by Navy Lt. Cmdr. Charles Swift, who brought suit in 2004 seeking Hamdan’s release from solitary confinement and declaring the commissions unconstitutional.

Documents unsealed in early August reveal allegations that Hamdan was beaten, threatened, and kept in isolation for upwards of eight months. A military commission preliminary hearing began the week of August 23, 2004.

In September 2004, the petition was re-filed in the federal district court for the District of Columbia, and, in November 2004, that court found the military commission unlawful because the process violated the laws of war and military law, and stayed the commission.

In July 2005 the Court of Appeals for the District of Columbia reversed the district court and upheld the commission as lawful. Hamdan’s lawyers appealed the ruling, and in November 2005 the Supreme Court agreed to hear the case.

In January 2006, the government filed a motion for the Supreme Court to dismiss the case on the ground that the Detainee Treatment Act of 2005 (the Graham/Levin amendment) divested Hamdan of the right to seek habeas corpus in a federal court.

That law entered congress as an amendment to a massive war-spending bill. It was introduced as a compromise by Sen. Lindsey Graham, a conservative Republican from South Carolina and a former military judge, and Sen. Carl Levin, a liberal Democrat from Michigan.

HRF’s Perlstein told IPS the Graham-Levin compromise was “a mistake”. She says that she understands Senator Graham’s motivation – “to try to address the uncertain legal status of those held in a U.S. detention system that includes thousands of people worldwide.”

However, she adds, “The great irony of Congress’ action here was to guarantee that the question of the legal status of those stuck in limbo already for years would remain unresolved, and would continue to be litigated for some time to come. Apart from the Amendment’s legal infirmities – trying to strip the federal courts of the power to enforce the Constitution against an executive branch strikingly uninterested in law – as a matter of security policy, it effectively made matters worse.”

Brian J. Foley, a professor at Florida Coastal School of Law, told us he was uncertain about whether the Graham-Levin measure “clearly supports an argument that it is prospective only. Legislative history may say otherwise, but courts might not consider legislative history if they think the text is clear. It will be up to the courts”

However, he adds, “Congress did make clear that it doesn't want to give these prisoners a way to 'complain' about conditions of confinement, including torture. Congress made clear that it doesn't want to give them a way to 'complain' that they are not being given a hearing, or that getting a decision in a hearing is taking too long. Congress was foolish to pass this law, because these enormous presidential powers can so easily be turned against US citizens. What if a US citizen is rounded up and never given a hearing to test whether he's an enemy combatant -- or even a US citizen? Well, he can't access the courts, thanks to this statute. The only hope is that the Constitution's right to habeas corpus transcends this statute. That will ultimately be a major issue in the Supreme Court, and we can only hope that the justices don't simply side with the Administration.”

The High Court’s decision will not be public until July. Meanwhile, American citizens ought to be pondering whether it wants to become a monarchy, ruled by a president. They also ought to give some serious thought to the kind of message indefinite detention of prisoners without a real trials sends to the rest of the world.

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