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Supreme court tests president arbitrary detention powers Original Source Link: (May no longer be active)
http://www.bloomberg.com/apps/news?pid=10000103&sid=an1zef2wmAEo&refer=ushttp://www.bloomberg.com/apps/news?pid=10000103&sid=an1zef2wmAEo&refer=us
Supreme Court Terrorism Case Will Test U.S. Presidential Powers
March 28 (Bloomberg) -- The U.S. Supreme Court, which said in 2004 President George W. Bush doesn't have a ``blank check'' to fight terrorism, will consider giving his administration a broad shield against legal claims by inmates at Guantanamo Bay.
The justices today in Washington will consider the administration's bid to block a lawsuit by Salim Ahmed Hamdan, a former driver for Osama bin Laden who says the government lacks authority to try him on a conspiracy charge before a military tribunal. It's the first Supreme Court terrorism case since Bush appointed two new justices.
The dispute raises questions about presidential wartime powers and the ability of the courts to put limits on the executive branch. The administration says a law enacted in December strips the Supreme Court of authority to hear Hamdan's case and bars any inmate challenge to the legality of the military tribunals.
``If the statute means what the administration says it means, then Guantanamo is a legal black hole out of which nothing emerges,'' said New York University law professor Burt Neuborne, who filed a high court brief opposing the tribunals. ``There's no way to seek relief from anything that gets done there.''
Defenders of the administration's policies say the president needs broad authority -- and limits on judicial involvement -- to fight terrorism effectively.
``When we're engaged in armed conflict, you can't expect the military to convert itself from a war-fighting machine to a bunch of gumshoes and paralegals,'' said former Attorney General William P. Barr in an interview.
Prisoners of War
Some of the lawyers siding with Hamdan are retired generals and admirals who filed a court brief saying that abusing the rights of prisoners of war may breed more terrorism and endanger U.S. troops.
The new law, the Detainee Treatment Act, lets inmates at the Guantanamo prison in Cuba go to federal court only after a conviction by a military tribunal. The law also limits the issues the federal court can consider. Hamdan's lawyers say it would preclude him from contesting Bush's authority to set up the tribunals or arguing that their procedures violate Geneva Convention protections for prisoners of war.
The question for the court is whether those restrictions apply to Hamdan's case, requiring the justices to toss it out even though it was already on their argument calendar when Bush signed the law. In court papers, Hamdan's lawyers said dismissing their case ``would raise grave constitutional questions'' giving Congress unprecedented power over the Supreme Court's docket.
Constitutional Concerns
The administration and its allies say the constitutional concerns are overblown. U.S. Solicitor General Paul Clement, the administration's top Supreme Court lawyer, says the court has repeatedly recognized Congress's power to limit judicial review.
The dispute marks the court's first terrorism case since June 2004, when it said American citizens held as enemy combatants are entitled to a hearing. A second decision the same day let inmates at Guantanamo seek help in federal court.
Since that time, Bush has added two new members to the high court, Chief Justice John Roberts and Justice Samuel Alito. Because Roberts took part in the Hamdan case as an appeals court judge, siding with the administration, he won't participate in the Supreme Court arguments or the decision.
The Hamdan case has sparked controversy over the role of Justice Antonin Scalia. In remarks in Switzerland earlier this month, Scalia said Guantanamo detainees weren't entitled to a jury trial in civilian courts.
Jury Trials
``War is war, and it has never been the case that when you capture a combatant, you have to give him a jury trial in your civil courts,'' Scalia said. ``It's a crazy idea to me.''
Although that issue isn't directly before the court in the Hamdan case, the retired generals and admirals who filed a brief with the justices yesterday sent the court a letter asking Scalia to disqualify himself from taking part in the case. Court spokeswoman Kathy Arberg said Scalia had no comment.
The case will shape how much control the administration has over almost 500 inmates at Guantanamo, most of them captured in Afghanistan during the 2001 war against the Taliban. Some 300 of those inmates have cases pending in federal courts.
The U.S. Court of Appeals for the D.C. Circuit ruled 3-0 last year that Congress authorized the president to set up military tribunals when it approved the use of force to fight terrorism following the Sept. 11 attacks. The court also said the Geneva Convention isn't enforceable in federal court and doesn't apply to members of bin Laden's al-Qaeda network.
Enemy Fighters
Defenders of the appeals court decision say enemy fighters captured in war have long been tried before military tribunals. In World War II, at least 18 Germans were tried and executed as spies, according to a brief filed by former Attorneys General Barr, Edwin Meese and Dick Thornburgh.
Hamdan's attorneys contend that Bush needed -- and didn't obtain -- specific congressional authorization to set up the tribunals, the first such commissions in more than 50 years. They argue that tribunals historically have been used only as temporary measures in zones of active military operations when no civilian courts were available.
Hamdan's team also says tribunal procedures violate both the Uniform Code of Military Justice and the Geneva Convention. The tribunals permit exclusion of the accused from the proceeding, allow witness statements in place of sworn testimony and let the defense secretary halt a trial.
Hamdan, who says he is about 37, worked for bin Laden in three stretches from 1996 to 2001. His duties at least occasionally included driving bin Laden and delivering weapons.
The government says Hamdan conspired with bin Laden and other al-Qaeda leaders to wage war against the U.S. and attack civilians. Hamdan's military attorney, Lieutenant Commander Charles Swift, says his client was a poor man who worked for bin Laden to earn money so that he could support his family.
The justices will rule by July in the case, Hamdan v. Rumsfeld, 05-184.
Last Updated: March 28, 2006 00:01 EST
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