William Fisher: Ball In The Supreme's Court

29 March 2006

Ball In The Supreme's Court By William Fisher

The U.S. SupremeCourt this week heard arguments in what will almostcertainly be one of the landmark cases of the past fiftyyears.

Their decision will determine whether the SupremeCourt will continue to assert its authority to review andcheck the executive's power to detain and try individualscaught up in the "war on terror."

The case is calledHamdan versus Rumsfeld. The Hamdan is Salim Ahmed Hamdan,who has been a prisoner at Guantanamo Bay, Cuba, since 2002.The Rumsfeld is Defense Secretary Donald Rumsfeld, whosedepartment has jurisdiction over all detainees held atU.S.-controlled military prisons.

Since the Court agreedto hear Hamdan's case, the administration of PresidentGeorge W. Bush filed an extraordinary motion to dismiss it.The government argues that a law passed by Congress latelast year was intended to deny the right of habeas corpus toall prisoners in U.S. custody including not only newcases, but those that were pending at the time Congressacted. The Bush administration contends that Congressintended to strip the high court of its jurisdiction to hearany challenge arising out of the detentions at GuantanamoBay.

But according to Deborah Perlstein, an attorney withlegal advocacy group Human Rights First, "Apart from theweakness of the Administration's case on the merits, thestatute passed by Congress last year makes clear its intentto apply only to cases arising after Hamdan's."

Perlsteintold us, "It's hard to see even this new Court acceptingthat kind of frontal assault on its own power."

Two newJustices have been appointed to sit on the Supreme Court inthe past few months. John Roberts has become chief justice,replacing William Renquist, who died. And Samuel J. AlitoJr. has joined the court, replacing Sandra Day O'Connor, whoresigned after 24 years as an associate justice.

Even ifthe justices resolve the court-stripping issue, it will beleft to decide two other weighty questions: Does thePresident have the authority to convene military commissionsto try alleged terrorists and ignore the proceduralprotections that Congress and the Constitution have longafforded those facing U.S. military trials? And are theGeneva Conventions - the laws of war that the UnitedStates long ago ratified and made part of U.S. law - enforceable by individuals in federal court?

According toPerlstein, "Either one of these questions is generational innature. Taken together, they give Hamdan the potential to beone of the most important cases the Supreme Court has heardon the issue of presidential power in the pasthalf-century."

To complicate matters further, ChiefJustice Roberts has recused himself from the Hamdan casebecause he participated in ruling on it in a lower courtbefore his recent appointment. That means eight justiceswill hear the arguments, thus eliminating the possibility ofthe 5-4 decision often made by this court in contentiouscases.

But, says Perlstein, "More significant than theabsence of Chief Justice Roberts, is the absence of JusticeRehnquist and O'Connor in this kind of case. Those justiceshad for the past nearly 30 years been at the leading edge ofthe Court's assertion of its own power, above Congress andthe Executive, as a co-equal branch of government. Whetherthe absence of their voices will have left a court morereluctant to weigh in on matters of individual rights in theface of government power remains to be seen."

The Hamdancase has been bouncing around the U.S. justice system forseveral years, beginning in 2004, when the DOD Formallyreferred charges against the 34-year-old Yemeni national,one of six Guantanamo detainees who were designated byPresident Bush in July 2003 as subject to trial by militarycommission under the President's Order of November 13, 2001.Hamdan was captured by Afghan forces and handed over to theU.S. military in Afghanistan in late 2001.

The governmentaccuses Hamdan of serving as Osama Bin Laden's bodyguardand personal driver, delivering weapons to al Qaeda membersand purchasing vehicles for Bin Laden's security detail. Heis formally charged with conspiracy to attack civilians,attack civilian objects, murder, destruction of property,and terrorism.

Held at the U.S. Naval Base at GuantánamoBay, Cuba, since early 2002, Mr. Hamdan is currentlyrepresented by Navy Lt. Cmdr. Charles Swift, who broughtsuit in 2004 seeking Hamdan's release from solitaryconfinement and declaring the commissions unconstitutional.

Documents unsealed in early August reveal allegationsthat Hamdan was beaten, threatened, and kept in isolationfor upwards of eight months. A military commissionpreliminary hearing began the week of August 23, 2004.

InSeptember 2004, the petition was re-filed in the federaldistrict court for the District of Columbia, and, inNovember 2004, that court found the military commissionunlawful because the process violated the laws of war andmilitary law, and stayed the commission.

In July 2005 theCourt of Appeals for the District of Columbia reversed thedistrict court and upheld the commission as lawful. Hamdan'slawyers appealed the ruling, and in November 2005 theSupreme Court agreed to hear the case.

In January 2006,the government filed a motion for the Supreme Court todismiss the case on the ground that the Detainee TreatmentAct of 2005 (the Graham/Levin amendment) divested Hamdan ofthe right to seek habeas corpus in a federal court.

Thatlaw entered congress as an amendment to a massivewar-spending bill. It was introduced as a compromise by Sen.Lindsey Graham, a conservative Republican from SouthCarolina and a former military judge, and Sen. Carl Levin, aliberal Democrat from Michigan.

HRF's Perlstein told usthe Graham-Levin compromise was "a mistake". She says thatshe understands Senator Graham's motivation - "to try toaddress the uncertain legal status of those held in a U.S.detention system that includes thousands of peopleworldwide."

However, she adds, "The great irony ofCongress' action here was to guarantee that the question ofthe legal status of those stuck in limbo already for yearswould remain unresolved, and would continue to be litigatedfor some time to come. Apart from the Amendment's legalinfirmities - trying to strip the federal courts of thepower to enforce the Constitution against an executivebranch strikingly uninterested in law - as a matter ofsecurity policy, it effectively made matters worse."

BrianJ. Foley, a professor at Florida Coastal School of Law, toldus he was uncertain about whether the Graham-Levin measure"clearly supports an argument that it is prospective only.Legislative history may say otherwise, but courts might notconsider legislative history if they think the text isclear. It will be up to the courts"

However, he adds,"Congress did make clear that it doesn't want to give theseprisoners a way to 'complain' about conditions ofconfinement, including torture. Congress made clear that itdoesn't want to give them a way to 'complain' that they arenot being given a hearing, or that getting a decision in ahearing is taking too long. Congress was foolish to passthis law, because these enormous presidential powers can soeasily be turned against US citizens. What if a US citizenis rounded up and never given a hearing to test whether he'san enemy combatant or even a US citizen? Well, he can'taccess the courts, thanks to this statute. The only hope isthat the Constitution's right to habeas corpus transcendsthis statute. That will ultimately be a major issue in theSupreme Court, and we can only hope that the justices don'tsimply side with the Administration."

The High Court'sdecision will not be public until July. Meanwhile, Americancitizens ought to be pondering whether it wants to become amonarchy, ruled by a president. They also ought to give someserious thought to the kind of message indefinite detentionof prisoners sends to the rest of theworld.

*************

Please click on the link below.

THE WORLDACCORDING TO BILL FISHER -http://billfisher.blogspot.com/

THIS ISSUE Lead NZ News NZ Politics World News FeaturesComment & Opinion Landscape: Norman Mackay Finds Fire In The Sky Over Ohau - From now until mid winter, the skies will become a deeper colour of red as the sun gradually sinks over the horizon at the end of each day. Spectacular colours in a truly beautiful area situated in the High Country of the south island. See... Scoop Images: Fire Returns To The Sky Over Ohau

SCOOP KIWI COMMENT & OPINION: Rosalea Barker - Stateside: It's Not Over Yet Russell Brown and Ors. - Public Address 28/03/06 - Anyone More Normal? , Public Address 27/3/6 - A Clayton's Bill Of Rights & Public Address 24/03/06 - Gossip And Espionage John Roughan (In Honiara) - Taking Things For Granted! No Right Turn - Climate Change: Failure Is Better Than Nothing Richard S. Ehrlich - Thaksin Shinawatra Portrayed As Adolf Hitler Martin LeFevre - Meditations: Contemplating "Grizzly Man" Marc Alexander - Marc my Words: Tax - a state sponsored mugging

Nepal: Siddhi B. Ranjitkar On Understandings With Maoists - Communist Party of Nepal-United Marxist-Leninist (CPN-UML) leader, Madhav Kumar Nepal and his associates have been engaged in dialogue with the Maoists in the country and out of the country already for some time. Mr. Nepal has visited Lucknow and New Delhi several times for talks with the Maoists in 2005. He even once went to Silgudi, India to meet with the Maoist leaders. So, he had courting the Maoists hoping to bring them to the mainstream politics. Nepali Congress Leader, Girija Prasad Koirala also visited New Delhi ostensibly for routine health check-ups but obviously for talks with the Maoist leaders several times in 2005. See... Siddhi B. Ranjitkar: Understanding with Maoists

Internet: President Jimmy Carter Becomes A Blogger - There is a desperate need in America to block and reverse the radical departures from the moral and ethical principles that have made ours a great nation. See... Former President Jimmy Carter's First Blog Post. EARLIER: Scoop Feedback: An Open Letter to President Jimmy Carter & Jimmy Carter: Colonization of Palestine Precludes Peace

MORE COMMENT & OPINION: William Rivers Pitt - Incompetent Design & The Mouse That Roared Between The Lines - Death Squads in Iraq & The Likelihood of Civil War BuzzFlash.Com - America Under a Junta: An Update Norma Sherry - Grandma's Worth More Than a 100k, Maybe More Sonia Nettnin - Women and War William Fisher - Iraq Told To Rebuild Itself & The Oxycops Mark Bradley - Bluster s Last Stand Harvey Wasserman - Bush Makes Iraq The Vital Reason For Impeachment Jason Miller - Democratizing the World 1 Torture Victim at a Time Uri Avnery - Whom To Vote For? Translation by Sol Salbe - M Michaeli: The Olmert-Lieberman Dirty Alliance John Chuckman - Sorry, Mr. PM, Afghanistan Is Not Our War Genevieve Cora Fraser - Palestinian Rights Face Israeli Terrorism Narconews - Swier: "Other Loves" in the Other Campaign & From The Narcosphere: Columbia & Mexico Marjorie Cohn - Israel, al Qaeda and Iran Cindy Sheehan - Volunteers for Endless War

Katya Rivas's Passion: Serialised For Lent (Part 17) - Pilate was looking for ways to free Me. He was worried because of his wife s warning and confused between the guilt of his conscience and the fear that the people would initiate a riot against him. In the pitiable state in which I found Myself, he exposed Me to the sight of the mob proposing that he give Me liberty and condemn Barabbas, a famous thief and murderer, in My place. The people answered in one voice: "Let him die and have Barabbas set free!" See... Katya Rivas: Barrabas Is Set Free SEE ALSO: Part 16 - Katya Rivas: Jesus Is Crowned with Thorns Part 15 - Katya Rivas: Jesus Is Sentenced to DeathPart 14 - Part 13 - Part 12 - part 11 Part 10 - Part 9 - Part 8 - Part 7 - Part 6Part 5 - Part 4 - Part 3 - Part 2 - Part 1

CLICK HERE FOR MORE RECENT COMMENTARYQuick Retirement CalculatorTarget 110 000 ConsumersNZ REAL ESTATE OnlineBook Cheap FLIGHTS OnlineCalculate YOUR NETWORTHTRAVEL: Packages & Deals!MORTGAGE Calculators THE WIRES Scoops Parliament Politics World Business Sci-Tech Culture Education Regional Health SEARCH _m1svt='');

Source: scoop

All trademarks and copyrighted information contained herein are the property of their respective owners.