Marjorie Cohn: Supremes Consider Kangaroo Courts

29 March 2006

Supremes Consider Kangaroo Courts By Marjorie Cohn t r u t h o u t | Perspective From: http://www.truthout.org/docs_2006/032806J.shtml Tuesday 28 March 2006

For Background See Also Marjorie Cohn | Graham Amendment InvokesConstitutional CrisisMarjorie Cohn | Supreme Court: War No BlankCheck for Bush

Today the Supreme Court ishearing oral arguments in the most significant case to dateon the limits of George W. Bush's authority in his "war onterror." In the first two cases it heard, the high courtreined in Bush for his unprecedented assertion of executivepower. It held in Rasul v. Bush that the Guantánamoprisoners could challenge their confinement in US federalcourts. In Hamdi v. Rumsfeld, the Court said that "a stateof war is not a blank check for the President when it comesto rights of the Nation's citizens."

Salim AhmedHamdan, Osama bin Laden's chauffeur, is facing trial in oneof the military commissions that Bush created on November13, 2001. The case pending in the high court will determinethe legality of those military commissions, and will decidewhether Hamdan and other Guantánamo detainees can challengetheir detention in US federal courts.

The importanceof Hamdan v. Rumsfeld is evident from the sheer number ofamicus briefs it has garnered. Of the 42 amici in this case,37 - including one filed by 280 law professors, this writeramong them - support Hamdan's position.

Afghanimilitia forces captured Hamdan in Afghanistan in November2001. They turned him over to the United States military,which transported him to the Guantánamo Bay naval base inCuba, where he continues to be detained.

In 2004, theUS government designated Hamdan an "enemy combatant" andcharged him with conspiracy to commit the following crimes:attacks on civilians and civilian objects, murder anddestruction of property by an unprivileged belligerent, andterrorism. Hamdan has not been charged with committing theunderlying substantive crimes. The military commissions onlyhave jurisdiction to try war crimes. Conspiracy is not a warcrime.

In November 2004, the US District Court for theDistrict of Columbia granted Hamdan's petition for habeascorpus. That court held that Hamdan could not be tried by amilitary commission unless a competent tribunal firstdetermined that he was not a prisoner of war under the ThirdGeneva Convention. The district court also forbade themilitary commission from trying Hamdan unless the rules forthose commissions are amended to be consistent with and notcontrary to the Uniform Code of Military Justice (UCMJ).

The Third Geneva Convention requires that if there is adoubt about whether someone is a POW, a "competent tribunal"shall make the determination; meanwhile, the prisoner mustbe treated as a POW.

Geneva III also provides thatprisoners of war shall be tried in the same types of courtsas members of the armed forces of the detaining power. Itsays, "In no circumstances whatever shall a prisoner of warbe tried by a court of any kind which does not offer theessential guarantees of independence and impartiality asgenerally recognized."

Article 3 common to the GenevaConventions prohibits "the passing of sentences and thecarrying out of executions without previous judgmentpronounced by a regularly constituted court affording allthe judicial guarantees which are recognized asindispensable by civilized peoples."

Bush crafted themilitary commissions to deny the accused due processprotections the UCMJ guarantees. The accused can beconvicted and sentenced to death based on evidence he neversees, in proceedings where he cannot be present. Hearsay isadmissible and the standard for admissibility of evidencefalls below that required by US military and civiliancourts.

In July 2005, the US Court of Appeals for theDC Circuit overturned the district court s ruling. Theappellate court held that the Geneva Convention isunenforceable in court, and that Geneva does not apply to alQaeda. Chief Justice John Roberts, who voted against Hamdanin the Court of Appeals, will not take part in the SupremeCourt decision.

Meanwhile, on December 30, 2005,Congress passed the Detainee Treatment Act of 2005, whichcodifies US law against cruel, inhuman and degradingtreatment. But the act also purports to strip our federalcourts of jurisdiction to hear the Guantánamo detainees'habeas corpus petitions, including those that complain ofmistreatment.

The Bush administration then moved todismiss Hamdan's petition, but the Supreme Court kept thecase alive and will hear it today.

Hamdan's briefchallenges the Supreme Court to stop "this unprecedentedarrogation of power." It warns that "if in the interest of'national security,' this Court concludes that the Presidenthas such authority, it will be hard pressed to limit, in anyprincipled manner, the President's assertion of similarlyunprecedented powers in other areas of civil society, solong as they purport to serve the same objective. Indeed, itis not hard to imagine a future President invoking this caseas precedent, and asserting the need to subject Americancitizens to military commissions for any offense somehowconnected to the 'war on terror.'"

"In the end," theHamdan brief says, "the President cannot claim that thecriminal offenses of the laws of war apply to the war onterror, and at the same time deny the accused the right toinvoke any of the protections of the laws of war [the GenevaConventions]."

Steve Clemons, of TheWashington Note, recently quoted Sonia Picado, formerCosta Rican ambassador to the US, and the first and onlywoman judge on the Inter-American Court of Human Rights.Picado said that Bush's military commissions sent "a coldchill" through democracies around the world, which hadsuffered historically from oppressive secret militarytribunals.

Justice Antonin Scalia, who has alreadypre-judged this case, should recuse himself. In a March 8talk at the University of Freiberg in Switzerland, Scaliadenied that the detainees have legal rights. "War is war,"he declared, "and it has never been the case that when youcaptured a combatant you have to give them a jury trial inyour civil courts." Scalia, who flipped his middle finger atreporters in Boston on Sunday, will give the finger to SalimAhmed Hamdan and the rule of law if he remains on thecase.

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Marjorie Cohn, a contributing editor to t r u t h o u t, isa professor at Thomas Jefferson School of Law, executivevice president of the National Lawyers Guild, and the USrepresentative to the executive committee of the AmericanAssociation of Jurists.

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