The Supreme Court yesterday agreed to rule on the legality
of the Bush administration's planned military commissions
for accused terrorists, setting up what could be one of
the most significant rulings on presidential war powers
since the end of World War II.
If the court curbs Bush, that would be a very good development.
On the other hand, if they approve current policies, as happened
in the Padilla case, that would be very bad news.
rkm
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http://www.truthout.org/docs_2005/110805K.shtml
Also see below:
5 Gitmo Detainees to Face Military Court *
Go to Original
High Court to Hear Case on War Powers
Use of Military Panels for Detainees Is Tested
By Charles Lane
The Washington Post
Tuesday 08 November 2005
The Supreme Court yesterday agreed to rule on the legality
of the Bush administration's planned military commissions
for accused terrorists, setting up what could be one of
the most significant rulings on presidential war powers
since the end of World War II.
President Bush has claimed broad power to conduct the war
against al Qaeda and said that questions about the
detention of suspected terrorists, their interrogation,
trial and punishment are matters for him to decide as
commander in chief.
But the court's announcement that it would hear the case
of Osama bin Laden's former driver, Salim Ahmed Hamdan,
shows that the justices feel the judicial branch has a
role to play as well. The court has focused on whether
Bush has the power to set up the commissions and whether
detainees facing military trials can go to court in the
United States to secure the protections guaranteed by the
Geneva Conventions.
The justices have chosen to intervene at a sensitive time
for the Bush administration. The Senate is mounting its
first sustained challenge to the administration's claim
that it alone can determine what interrogation methods are
proper for detainees. The United States has come under
fire after disclosures that the CIA has been interrogating
suspects at secret "black sites" in Eastern Europe.
All of that will be in the background as the court
considers a case that will turn on its view of whether the
other branches of government can and should permit the
executive branch to make all the rules in the battle
against al Qaeda.
"The discomfort some justices may have with U.S. foreign
policy is bound to lap over" into their views of the legal
issues, said Michael J. Glennon, a professor of
international law at the Fletcher School of Law and
Diplomacy at Tufts University. "There is no question the
justices live in this world and they read the newspapers."
Both issues - military commissions and the Geneva
Conventions - are intertwined and go back to the earliest
days after the terrorist attacks of Sept. 11, 2001. The
administration's approach to them helped generate some of
the first policy debates of the war, inside and outside
the administration.
On Nov. 13, 2001, Bush issued a "military order" declaring
that panels of military officers would try suspected
terrorists for violations of the laws of war. The
administration argued that military trials are necessary
because the regular processes of civilian justice cannot
deal with a shadowy foe such as al Qaeda. It says the
president has the power to establish commissions under his
constitutional authority as commander in chief, the Sept.
18, 2001, congressional resolution that authorized the use
of force against al Qaeda and other statutes.
Under regulations developed by the Pentagon in response to
early criticisms of the commissions, defendants before
military commissions would enjoy a presumption of
innocence, access to a lawyer and other protections.
Also early on in the war, the White House decided, over
the strong objections of the State Department, that
suspected al Qaeda terrorists captured in Afghanistan and
elsewhere should not be entitled to the protections of the
Geneva Conventions. They are not prisoners of war but
"unlawful combatants" for whom the conventions offer no
legal benefits, the administration says. As a result, they
can be tried before military commissions, rather than
court-martials, which offer more procedural protections.
But Hamdan's attorneys argue that Congress authorized the
president to detain enemy combatants - not to try them.
Any commissions would have to be established with
Congress's express approval, or else they could be changed
and manipulated by the president alone, they argue.
In their brief to the court, Hamdan's lawyers argue that
the Geneva Conventions entitle their client to an
impartial hearing to determine whether he qualifies as a
prisoner of war, and to a court-martial - unless he is
found to be an unlawful combatant. Hamdan's tribunal began
in August 2004 but was halted by U.S. District Judge James
Robertson in Washington.
A three-judge panel of the U.S. Court of Appeals for the
District of Columbia Circuit, including now Chief Justice
John G. Roberts Jr., overturned Robertson in July; Roberts
has recused himself in Hamdan's appeal to the Supreme
Court. For a time, it seemed as if the court might honor
the administration's request that it stay out of the
dispute. The case, Hamdan v. Rumsfeld , No. 05-184, had
languished on the court's weekly conference agenda for
about a month, suggesting that the justices were preparing
to rebuff Hamdan's appeal. The former aide to Osama bin
Laden is at Guantanamo Bay, Cuba, and is charged with
conspiring to commit terrorist acts.
"It's a little surprising, because one would have thought
the court would have wanted to see whether Hamdan was
found not guilty," Glennon said. "Therefore, the court
seems disinclined to sit by the sidelines and defer to the
executive's judgment as to what rule ought to govern."
An oral argument is scheduled for March and a decision due
by July. A 4 to 4 tie would result in the affirmation of
the lower court's ruling, which upheld the
administration's policies. That outcome would probably
permit the trials to go ahead, but it would not create a
binding legal precedent.
The government says Hamdan, one of about 500 terrorist
suspects imprisoned at Guantanamo Bay, was bin Laden's
confidant and bodyguard from 1996 to 2001 and helped
transfer weapons from Taliban stockpiles to al Qaeda. But
Hamdan says he was a mere chauffeur. He says that he has
cooperated with U.S. interrogators but that they have
mistreated him and held him in solitary confinement since
December 2003.
Also yesterday, Defense Department officials announced
that charges have been approved for five more "enemy
combatants" at Guantanamo Bay and that they could face
military commissions soon.
The department said charges will go forward against
Ghassan Abdullah Sharbi and Jabran Said bin Qahtani of
Saudi Arabia; Sufyian Barhoumi of Algeria; Binyam Ahmed
Muhammad of Ethiopia; and Omar Ahmed Khadr of Canada.
Four are charged with conspiracy to attack civilians,
attack objects, murder, terrorism and destruction of
property. Khadr is charged with conspiracy to murder and
attempted murder, and with "aiding the enemy," according
to a military statement.
According to military documents, Khadr is a juvenile who
has admitted being trained at al Qaeda camps and claims to
have planted land mines in Afghanistan and to have killed
a U.S. soldier there.
The others have been linked to international terrorism and
allegedly trained in al Qaeda camps, associated with top
terrorist leaders or were known to U.S. officials as
possibly training for attacks here.
Like Hamdan, some of the detainees have claimed abuse by
U.S. soldiers.
In another development, Sen. Lindsey O. Graham (R-S.C.), a
member of the Armed Services Committee, said he hopes to
add language to the defense authorization bill that would
eliminate habeas rights for detainees captured during the
terrorism fight to halt the "the never-ending litigation
that is coming from Guantanamo."
Graham, who has also proposed an amendment that would put
the military tribunals at Guantanamo Bay under
congressional supervision, said his package - combined
with Sen. John McCain's (R-Ariz.) that limits U.S.
interrogation practices - would allow the United States to
"regain the moral high ground" in the war.
--------
Staff writer Josh White and researcher Julie Tate
contributed to this report.
Go to Original
5 Gitmo Detainees to Face Military Court
The Associated Press
Tuesday 08 November 2005
Wahington - Five suspected al-Qaida terrorists, including
one accused of killing a U.S. Special Forces medic, are
the latest Guantanamo Bay detainees headed for the kind of
military trials that now face a Supreme Court review.
The high court agreed Monday to consider a constitutional
challenge to military trials for foreign terror suspects.
The justices will decide whether President Bush
overstepped his authority with plans for a military trial
for Osama bin Laden's former driver, who is also being
held at Guantanamo Bay, Cuba.
His trial - and those of three other terror suspects who
were charged more than a year ago - would be the first
such tribunals since World War II. The five newly charged
suspects, who have been held in the U.S. detention center
in Cuba since 2002, will also have a stake in the Supreme
Court hearing.
Meanwhile, key members of Congress are pushing for a ban
on torture and other inhumane treatment of prisoners in
U.S. custody. The White House has threatened to veto the
defense spending bill if the ban is included.
"America's image throughout the world is very bad," said
Sen. John McCain, R-Ariz., a former prisoner of war in
Vietnam. "Mistreatment of prisoners is one of the factors
that has caused us to suffer so much in the eyes of the
world." Besides being cruel and inhumane, McCain said
Tuesday on CBS"'The Early Show," "torture doesn't work."
The five suspects charged Monday embody the military's
most daunting challenge: the use of homemade roadside
bombs - or improvised explosive devices - that are the No.
1 killer of troops in Iraq.
Toronto-born Omar Khadr was charged with murder, attempted
murder, aiding the enemy and conspiracy, for allegedly
tossing a grenade that killed a U.S. Special Forces medic
while fighting with the Taliban in Afghanistan, planting
mines to target U.S. convoys, and gathering surveillance.
The other four - Ghassan Abdullah al Sharbi and Jabran
Said bin al Qahtani of Saudi Arabia; Sufyian Barhoumi of
Algeria; and Binyam Ahmed Muhammad of Ethiopia - were
charged with conspiracy.
Barhoumi allegedly was an al-Qaida explosives trainer who
taught al Qahtani and al Sharbi how to build
remote-detonation explosive devices. And al Qahtani
allegedly wrote two instruction manuals on how to build
timing devices for roadside bombs. Muhammad was allegedly
trained to build dirty bombs and was planning terror
attacks against high-rise apartment buildings in the
United States.
Their prospects for a full trial are now in the hands of
the Supreme Court - a troubling development for the White
House, which has been battered by criticism of its
treatment of detainees and was rebuked by the high court
last year for holding enemy combatants in legal limbo.
The court's announcement came shortly after Bush, asked
about reports of secret U.S. prisons in Eastern Europe for
terrorism suspects, declared anew that his administration
does not torture anyone.
"There's an enemy that lurks and plots and plans and wants
to hurt America again," Bush said during a news conference
in Panama City, Panama, with President Martin Torrijos.
"So you bet we will aggressively pursue them, but we will
do so under the law."
"Anything we do to that end in this effort, any activity
we conduct, is within the law. We do not torture," he
said.
Chief Justice John Roberts took himself out of the case
because, as a judge on the court that considered the
appeal, he supported the government's position.
The Bush administration had urged the high court to stay
on the sidelines until after the trials, arguing that
national security was at stake. "The military proceedings
involve enforcement of the laws of war against an enemy
force targeting civilians for mass death," Solicitor
General Paul Clement wrote in a filing.
The case the court will decide involves Salim Ahmed
Hamdan, who was captured in Afghanistan in November 2001.
He denies conspiring to engage in acts of terrorism and
denies he was a member of al-Qaida. He has been charged
with conspiracy to commit war crimes, murder and
terrorism.
There are about 500 detainees being held at Guantanamo.
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