[Marxism] FLASH: In Rebuke for Bush, Court Block Trials at Guantanamo

["Walter Lippmann" <walterlx@xxxxxxxxxxxxx>]

THE NEW YORK TIMES
June 29, 2006
In Rebuke for Bush, Court Block Trials at Guantanamo
By THE ASSOCIATED PRESS

WASHINGTON (AP) -- The Supreme Court ruled Thursday that President
Bush overstepped his authority in ordering military war crimes trials
for Guantanamo Bay detainees.

The ruling, a rebuke to the administration and its aggressive
anti-terror policies, was written by Justice John Paul Stevens, who
said the proposed trials were illegal under U.S. law and
international Geneva conventions.

The case focused on Salim Ahmed Hamdan, a Yemeni who worked as a
bodyguard and driver for Osama bin Laden. Hamdan, 36, has spent four
years in the U.S. prison in Cuba. He faces a single count of
conspiring against U.S. citizens from 1996 to November 2001.

Two years ago, the court rejected Bush's claim to have the authority
to seize and detain terrorism suspects and indefinitely deny them
access to courts or lawyers. In this follow-up case, the justices
focused solely on the issue of trials for some of the men.

The vote was split 5-3, with moderate Justice Anthony M. Kennedy
joining the court's liberal members in ruling against the Bush
administration. Chief Justice John Roberts, named to the lead the
court last September by Bush, was sidelined in the case because as an
appeals court judge he had backed the government over Hamdan.

Thursday's ruling overturned that decision.

Bush spokesman Tony Snow said the White House would have no comment
until lawyers had had a chance to review the decision. Officials at
the Pentagon and Justice Department were planning to issue statements
later in the day.

The administration had hinted in recent weeks that it was prepared
for the court to set back its plans for trying Guantanamo detainees.

The president also has told reporters, "I'd like to close
Guantanamo." But he added, "I also recognize that we're holding some
people that are darn dangerous."

The court's ruling says nothing about whether the prison should be
shut down, dealing only with plans to put detainees on trial.

"Trial by military commission raises separation-of-powers concerns of
the highest order," Kennedy wrote in his opinion.

The prison at Guantanamo Bay, erected in the months after the Sept.
11, 2001, terror attacks on the United States, has been a flash point
for international criticism. Hundreds of people suspected of ties to
al-Qaida and the Taliban -- including some teenagers -- have been
swept up by the U.S. military and secretly shipped there since 2002.

Three detainees committed suicide there this month, using sheets and
clothing to hang themselves. The deaths brought new scrutiny and
criticism of the prison, along with fresh calls for its closing.


March 29, 2006
Justices Hint That They'll Rule on Challenge Filed by Detainee
By LINDA GREENHOUSE

Correction Appended

WASHINGTON, March 28 ? As the justices of the Supreme Court took
their seats Tuesday morning to hear Osama bin Laden's former driver
challenge the Bush administration's plan to try him before a military
commission, one question ? perhaps the most important one ? was how
protective the justices would be of their jurisdiction to decide the
case.

The answer emerged gradually, but by the end of the tightly packed
90-minute argument, it was fairly clear: highly protective.

At least five justices ? Stephen G. Breyer, Ruth Bader Ginsburg,
Anthony M. Kennedy, David H. Souter and John Paul Stevens ? appeared
ready to reject the administration's argument that the Detainee
Treatment Act, passed and signed into law after the court accepted
the case in November, had stripped the court of jurisdiction.

It was less certain by the end of the argument how the court would
then go on to resolve the merits of the case, a multipronged attack
on the validity of the military commissions themselves and on their
procedures. Lawyers for the former driver, a Yemeni named Salim Ahmed
Hamdan who is charged with conspiracy, also argue that he cannot
properly be tried before any military commission for that crime
because conspiracy is not recognized as a war crime.

Solicitor General Paul D. Clement was on the defensive throughout his
argument. His stolid refusal to concede that any of the government's
positions, on the jurisdictional as well as ultimate questions of the
case, might present even theoretical problems provoked the normally
soft-spoken Justice Souter into an outburst of anger.

What appeared to trouble Justice Souter most was Mr. Clement's
discussion with Justice Stevens about whether Congress's removal of
the federal courts' jurisdiction to hear habeas corpus petitions from
detainees at the naval base at Guantánamo Bay, Cuba, amounted to
"suspending" the writ of habeas corpus.

Suspending habeas corpus is an action, limited by the Constitution to
"cases of rebellion or invasion," that Congress has taken only four
times in the country's history. Habeas corpus is the means by which
prisoners can go to court to challenge the lawfulness of their
confinement, and its suspension is historically regarded as a
serious, if not drastic, step.

Mr. Clement's position was that Congress had not in fact suspended
habeas corpus, but that it might constitutionally have done so given
"the exigencies of 9/11." Addressing Justice Stevens, the solicitor
general said, "My view would be that if Congress sort of stumbles
upon a suspension of the writ, that the preconditions are satisfied,
that would still be constitutionally valid."

Justice Souter interrupted. "Isn't there a pretty good argument that
suspension of the writ of habeas corpus is just about the most
stupendously significant act that the Congress of the United States
can take," he asked, "and therefore we ought to be at least a little
slow to accept your argument that it can be done from pure
inadvertence?"

When Mr. Clement began to answer, Justice Souter persisted: "You are
leaving us with the position of the United States that the Congress
may validly suspend it inadvertently. Is that really your position?"

The solicitor general replied, "I think at least if you're talking
about the extension of the writ to enemy combatants held outside the
territory of the United States ?? "

"Now wait a minute!" Justice Souter interrupted, waving a finger.
"The writ is the writ. There are not two writs of habeas corpus, for
some cases and for other cases. The rights that may be asserted, the
rights that may be vindicated, will vary with the circumstances, but
jurisdiction over habeas corpus is jurisdiction over habeas corpus."

Justice Breyer, in his questioning of Mr. Clement, practically begged
the solicitor general to endorse an alternative approach that would
allow the court to avoid "the most terribly difficult and important
constitutional question of whether Congress can constitutionally
deprive this court of jurisdiction in habeas corpus cases."

The alternative at hand was the one offered by Mr. Hamdan's lawyer,
Neal Katyal, a law professor at Georgetown University. That was to
interpret the Detainee Treatment Act as applying only prospectively,
stripping federal courts of hearing future cases brought by the
detainees but allowing the Supreme Court to continue with at least
this one.

The argument was a textual one, based on a slight change in wording
from the measure originally proposed by Senator Lindsey Graham,
Republican of South Carolina, to the version the Senate eventually
passed after Senator Carl Levin, Democrat of Michigan, and others
raised objections to taking the Hamdan case away from the Supreme
Court.

Mr. Graham, who filed a brief in this case, and the administration
maintain that the change was immaterial. But the justices appeared
ready to embrace the ambiguity if it would allow them to retain
jurisdiction and proceed with the case.

Only eight justices will vote in the case, Hamdan v. Rumsfeld, No.
05-184. Chief Justice John G. Roberts Jr. is not sitting, because he
was a member of the three-judge panel of the federal appeals court
here that rejected Mr. Hamdan's challenge to the military commissions
in a decision last July.

Of the other members of the court, Justice Antonin Scalia appeared
most supportive of the administration. He intervened several times to
offer Mr. Clement a helping hand, something the solicitor general
rarely needs but accepted gratefully.

For example, Justice Kennedy was questioning Mr. Clement on the
government's position that even if the court had jurisdiction, it
should abstain from ruling on the validity of the military commission
until after Mr. Hamdan's trial.

Justice Kennedy said he found the argument troubling, pointing out
that Mr. Hamdan was arguing that because the commissions lacked the
procedures required by the Geneva Conventions, they were invalid.
"The historic office of habeas corpus is to test whether or not
you're being tried by a lawful tribunal," Justice Kennedy said. "And
he says, under the Geneva Convention, as you know, that it isn't."

Mr. Clement replied that Mr. Hamdan could raise that argument later,
before the military commission itself. He predicted that the argument
would fail and said that in any event, there was no reason "why that
claim has to be brought at this stage."

Justice Scalia then jumped in to support the solicitor general. "In
the normal criminal suit," he said, "even if you claim that the forum
is not properly constituted, that claim is not adjudicated
immediately."

Along with Justice Scalia, Justice Samuel A. Alito Jr. also appeared
to support the argument that the court should allow the trial to go
forward. Justice Clarence Thomas alone asked no questions.

Mr. Clement argued that the detainee law would allow a detainee to
argue in federal court, after a conviction by a military commission,
that the commission's procedures were illegal or unconstitutional.

Justice Ginsburg then asked him to "straighten me out." She said, "I
thought it was the government's position that these enemy combatants
do not have any rights under the Constitution and laws of the United
States."

"That is true, Justice Ginsburg," the solicitor general answered.

Mr. Hamdan's lawyer, Mr. Katyal, appeared to get traction with his
argument that conspiracy, with which Mr. Hamdan and nine other
detainees awaiting military commissions have been charged, is not an
appropriate crime for a trial before a military commission. If a
majority agrees, this might provide a narrow way of resolving the
case.

In many respects, the argument marked a resumption of the encounter
between the court and the Bush administration two years ago, in cases
that led to the court's rejection of the administration's claim to
broad authority to proceed without judicial oversight. The
administration was once again seeking "fundamentally open-ended
authority," the "blank check" the court had rejected then, Mr. Katyal
said.

Correction: March 30, 2006

A picture caption yesterday with an article about Supreme Court
arguments in the case of Salim Ahmed Hamdan, who is challenging the
administration's plans to try him before a military commission,
referred incorrectly to Lt. Cmdr. Charles Swift of the Navy and Harry
Schneider. They are among Mr. Hamdan's lawyers, but they did not
argue (or testify) before the court.


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