Monday, January 23, 2006


By William Fisher

Since Hurricane Katrina smashed into the Mississippi Gulf Coast last December, the U.S. Government has come under scathing criticism for being slow to respond.

But the Administration of President George W. Bush has recently showed it is more than capable of hustling on issues it considers top priorities.

Little more than a month after the Senate voted to ban appeals to the Supreme Court by suspected terrorists detained by the U.S., the Department of Justice (DOJ) asked the high court to dismiss an appeal already pending from a prisoner at Guantanamo Bay, Cuba.

Salim Ahmed Hamdan was captured in Afghanistan in late 2001, during a time of hostilities in that country that followed the terrorist attacks in the United States on September 11, 2001 mounted by al Qaeda.

He was detained by American military forces and transferred to Guantanamo Bay, Cuba, sometime in 2002. In July 2003, President Bush found “that there is reason to believe that [Hamdan] was a member of al Qaida or was otherwise involved in terrorism directed against the United States,” and designated him an enemy combatant to be tried by military commission. In April 2004, Hamdan’s counsel filed a habeas corpus petition, which is now pending.

In July 2004, Hamdan was formally charged with conspiracy to attack civilians and civilian objects, murder by an unprivileged belligerent, destruction of property by an unprivileged belligerent, and terrorism.

But on the basis of a Supreme Court ruling in June 2004, in a case involving another Guantanamo detainee, that federal district courts have jurisdiction to hear habeas petitions filed by Guantanamo Bay detainees, Hamdan’s military lawyers asked the court to consider the legality of his detention.

His defense alleges he was denied a speedy trial, challenges the nature and length of his pretrial detention as a violation of the Geneva Convention, and the legality of Military Commissions as a violation of the separation of powers doctrine and of the equal protection guarantees of the Fifth Amendment.

But, in its recent motion, the government argued that when Congress passed the Graham/Levin/Kyl amendment at the end of 2005 -- The Detainee Treatment Act of 2005 -- it stripped the Court of jurisdiction to hear Hamdan’s case – as well as all other pending Guantanamo appeals.

The “court-stripping” measure was a last minute amendment to the “must pass” Military Authorization Bill. The amendment was introduced by Republican Senators Lindsay Graham of South Carolina and John Kyl of Arizona, and Democrat Senator Carl Levin of Michigan.

“The government’s motion seeking to deny the Supreme Court the power to review a habeas case it has already taken up to review is one of the most serious challenges to Supreme Court authority since the Civil War,” says Deborah Pearlstein, the Director of the U.S. Law and Security Program of Human Rights First, a legal advocacy group.

“The Constitution itself gives the high court the power to hear challenges to the legality of executive detention through the writ of habeas corpus, and neither the President nor Congress can take that away,” the organization asserts.

Another major advocacy group, the Center for Constitutional Rights (CCR), notes that “the first task this Administration has chosen to undertake in the New Year is the dismissal of all pending Guantánamo habeas corpus petitions.”

President George W. Bush has “made perfectly clear its intent to create a gulag at Guantánamo Bay, Cuba - a permanent black hole into which the Administration will toss any person it chooses to disappear forever, without a trial, without hope, and without justice. If the government's position is adopted, no longer will victims of torture be allowed to sue, or to even air the fact of their abuse in any court. The attempt to dismiss these cases is a crude and flagrant violation of the laws and Constitution of the United States and the treaties and human rights laws of the nations of the world,” the organization charges.

It adds that most Guantanamo detainees “have no ties to Al Qaeda, many were turned over to the U.S. for bounty, and even more were just in the wrong place at the wrong time. If they have no way to appeal their innocence or their status, they will be left to rot in detention indefinitely.”

Brian J. Foley, a professor at Florida Coastal School of Law, charges that Congress “was foolish to pass this law, because these enormous presidential powers can so easily be turned against U.S. citizens. What if a U.S. citizen is rounded up and never given a hearing to test whether he's an enemy combatant -- or even a U.S. citizen? Well, he can't access the courts, thanks to this statute.”

Prof. Foley says the new law makes it clear that Congress “doesn't want to give these prisoners a way to 'complain' about conditions of confinement, including torture. 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.”

“That's the upshot of this law, which gives prisoners a right only to appeal actual determinations of Combatant Status Review Tribunals, which decide whether the prisoner is an 'enemy combatant' in the first place, or the determinations of military tribunals, which are convened if an enemy combatant is tried for a particular crime, if the sentence is for death or for more than 10 years. Appeals of lesser sentences are at the D.C. Circuit's discretion,” he says, adding, “There is no other way that the prisoner has a right to go to court, any court.”

“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,” Prof. Foley says.

The Bush Administration’s court action is of a piece with its expansive view of the power of the Executive Branch of U.S. Government, and comes amid the media tsunami triggered by revelations that the Defense Department’s National Security Agency (NSA) – the largest of America’s 16 intelligence organizations – has been conducting secret surveillance of telephone and internet communications between U.S. citizens and people overseas who are alleged to have connections to Al Qaida.

Congress, which zealously guards its Constitutional role as one of the three co-equal branches of government, passed the Foreign Intelligence Surveillance Act (FISA) in the post-Watergate era of the late 1970s. The Act established a FISA court, which empowered its judges to issue warrants for Federal law enforcement agencies to conduct secret surveillances of U.S. citizens.

While President Bush, Vice President Dick Cheney and other senior administration officials defend the president’s actions, many in Congress reject the Administration’s claim of inherent power and insist that no surveillance involving U.S. citizens can take place without a warrant issued by the FISA court. FISA court judges are all sitting Federal Judges – one of whom recently resigned as a protest of the president’s apparent effort to ignore the court’s authority.

The powerful chairman of the Senate Judiciary Committee, Sen. Arlen Specter of Pennsylvania, has announced he will convene a hearing on the NSA program early next month, and Attorney General Alberto Gonzales announced he will appear to defend the Administration’s position.

The reach of executive power was one of the recurring themes in the Senate hearings on the nomination of Judge Samuel Alito to become a Justice of the Supreme Court. At many points in the three-day hearing, Judge Alito appeared to favor a deferential view of presidential power. But he refused to be drawn into detailed discussion of the subject, saying that it was an issue that might come before the Supreme Court.

Many legal scholars believe that the Bush Administration and the Congress have aggressively exceeded their authority by restricting the access of detainees to the courts. Still, it’s comforting to know that the Department of Justice is not paralyzed by bureaucracy or by fact or tradition either.

As President Bush famously said, they’re doing a heck of a job!