At court, a terror case rife with tough issues By Warren Richey | Staff writer of The Christian Science Monitor The case of Salim Ahmed Hamdan, Osama bin Laden's former driver in Afghanistan, has the potential to become one of the most important US Supreme Court decisions of this generation. It will test the scope of presidential power in the war on terror. It may clarify how detained Al Qaeda suspects are treated by the US. More broadly, it challenges the justices to further define the balance of power among the three branches of government during times of national emergency. But before the high court takes up those weighty issues of constitutional law, it must decide a more basic question: whether it has jurisdiction to hear the case. If the justices decide the case is not yet ripe for their review, Mr. Hamdan's appeal ends there, at least for the time being. That is the unusual posture surrounding the Hamdan case on the eve of oral arguments Tuesday - litigation so multilayered that the high court has taken the unusual step of allotting 90 minutes for oral arguments, a half hour more than usual. The Bush administration, in its court brief, says Hamdan's appeal is "fatally premature." The Detainee Treatment Act, signed into law Dec. 30, 2005, bars federal judges and justices from hearing any appeals by Guantánamo detainees before a verdict is rendered by a military commission in their war-crimes cases, argues US Solicitor General Paul Clement. The Hamdan case will signal how the Supreme Court views its role in the war on terror, say critics of the military-commission process. "Given the triumphalist orientation of this administration and the passivity of Congress, anything that gives us a better feel for how energetic the courts will be as a counterweight is critical," says Eugene Fidell, president of the National Institute of Military Justice. Hamdan is being held in open-ended detention at the US terror prison camp at Guantánamo Bay, Cuba. In 2004, he was set to stand trial for allegedly conspiring with top Al Qaeda leaders to commit acts of terrorism, charges he denies. Shortly before his trial was to start, a federal judge in Washington ruled that the military- commission process violates both US law and the Geneva Conventions. That decision was reversed by a federal appeals court panel. In November, the Supreme Court agreed to take up the case, examining whether military commissions at Guantánamo had been properly authorized by Congress or were otherwise authorized by the inherent powers of the president as commander in chief of the armed forces. In addition, the court agreed to examine whether a federal judge can force the US government to apply the 1949 Geneva Conventions - international accords that define prisoners of war and how they are to be treated - to Guantánamo detainees. The Bush administration maintains that detained Al Qaeda suspects don't qualify for the Geneva protections. Hamdan's lawyers say their client and others at Guantánamo are covered. Under normal circumstances, those two questions would set the stage for constitutional fireworks. But the Hamdan case features extra twists. Less than two months after the high court agreed to hear Hamdan's appeal, Congress approved the Detainee Treatment Act, which bars detainees from filing pretrial challenges in federal court. The law is aimed at heading off a flood of federal lawsuits by Guantánamo detainees. The big question is whether that law applies to Hamdan. The US says Hamdan's pretrial appeal must be dismissed, and that he can file an appeal later if he is convicted by a military commission. Hamdan's lawyers say the Detainee Treatment Act doesn't apply to their client. They say Congress was aware of the Hamdan case when it passed the law - and that it amended the bill to avoid undermining the pending Supreme Court case. "The 'plain' language of the enacted law is most fairly read as not applying to this case, or at the very least is ambiguous," wrote Hamdan lawyer Neal Katyal in a brief. Mr. Katyal says under the government's reading the Detainee Treatment Act may preclude Hamdan from ever raising a constitutional challenge to the military- commission process. "Hamdan's claims turn on federal statutes, treaties, and constitutional provisions about presidential authority - questions within this court's, not a commission's, expertise," Katyal says. If the government's view is embraced by the high court, he adds, Hamdan may be deprived of his day in court both now and forever. Those who support the Bush administration's position argue that Hamdan will have his day in court. Under the Detainee Treatment Act, he can appeal the decision of his military commission to a special court made up of three federal judges from the District of Columbia Circuit Court of Appeals. "The DTA is quite clear that this special appeal to this specially composed court of the D.C. Circuit is the only judicial review," says Andrew McBride, a Washington lawyer who filed an amicus brief on behalf of former attorneys general and retired military officers supporting Defense Secretary Donald Rumsfeld. At its core, Hamdan's case is a test of the military-commission process. Hamdan's lawyers say such commissions are unlawful because they fail to provide the same level of fair procedures and protections as US and international law. Solicitor General Clement counters that President Bush has ample authority to subject captured enemy combatants to trial by military commission both through congressional authorizations and his inherent commander-in-chief powers. Passage of the Detainee Treatment Act, he adds, is Congress's endorsement of Mr. Bush's decision to convene military commissions at Guantánamo. The Hamdan case will be the first big terrorism-related case to come before the Supreme Court since the death of Chief Justice William Rehnquist and the retirement of Justice Sandra Day O'Connor. "They were really in the forefront of establishing the Supreme Court as a defender of its own power," says Deborah Pearlstein, a lawyer at Human Rights First who has worked on briefs supporting Hamdan's case. "So it's a pretty significant test," she says, even though the new chief justice, John Roberts, has recused himself because he ruled on it as a judge on the D.C. Circuit Court of Appeals. Staff writer Linda Feldmann contributed to this report. ------------------------------------------ Detainee Case Will Pose Delicate Question for Court By LINDA GREENHOUSE March 27, 2006 WASHINGTON, March 26 --- The Supreme Court's announcement four months ago that it would rule on the validity of the military commission by which the Bush administration wants to try Osama bin Laden's former driver, on charges of conspiracy to commit terrorism, appeared to mark a resumption of a struggle for supremacy between the court and the White House. That struggle initially played out in three cases on terrorism and civil liberties in June 2004. In accepting the new case, as in the previous ones, the justices rejected the administration's argument that the court should simply stay out and let the president conduct his fight against terrorism unconstrained by judicial oversight. But no one foresaw back in November that the case of the driver, Salim Ahmed Hamdan, to be argued on Tuesday, would present the Supreme Court with an additional and perhaps even greater challenge. In the face of a measure that Congress passed and President Bush signed into law in late December to strip the federal courts of jurisdiction over cases brought by detainees at the United States naval base at Guantánamo Bay, Cuba, where Mr. Hamdan has been held since 2002, the court must decide whether it retains the right to proceed with this case at all. For a court that has been highly protective of its own prerogatives, but at the same time notably attentive to the often arcane limits on federal court jurisdiction, the question is one of great delicacy, infused with historical resonance. Not since the immediate aftermath of the Civil War, in a case that arose from the power struggles of the Reconstruction era, has the Supreme Court permitted Congress to divest it of jurisdiction over a case it has already agreed to decide. In that case, Ex Parte McCardle, the court had already heard four days of argument in an appeal brought by a rabble-rousing Mississippi newspaper editor who had been taken into custody and charged by the military government with fomenting insurrection. Fearful that a Supreme Court ruling in favor of the editor, William H. McCardle, could result in invalidating military control of the former Confederate states, Congress enacted a law over President Andrew Johnson's veto to deprive the court of jurisdiction. The court then dismissed the appeal, rejecting the argument by McCardle's lawyer that it was permitting Congress to usurp the judicial function. In the new case, Hamdan v. Rumsfeld, No. 05-184, the Bush administration filed a motion with the court in early January, days after the Detainee Treatment Act was signed into law, urging immediate dismissal of Mr. Hamdan's appeal. "It is well settled that statutes that remove jurisdiction apply to pending cases and ordinarily should be given immediate effect," the administration, citing the McCardle case, said in the brief accompanying its motion. More than a month later, on Feb. 21, the court declined to act on the motion, announcing instead that it would take up the jurisdictional question as part of the argument on the merits of the case. It added 30 minutes to Tuesday's argument, originally scheduled for one hour, for that purpose. The McCardle case has been seen by many modern legal scholars as problematic, a regrettable expression of judicial weakness. Mr. Hamdan's lawyers cite it as well, but for a different proposition. While Congress spoke clearly in the court-stripping amendment at issue in the McCardle case, their brief tells the court, the Detainee Treatment Act is ambiguous on its application to pending, as opposed to future, cases. The court should interpret the act as not applying to the Hamdan case to avoid the "grave constitutional questions" that would otherwise arise, they say. A group of law professors who filed a brief on this point on Mr. Hamdan's behalf warn the court that to give up jurisdiction would be to yield to "an unconstitutional interference with access to courts and an attack on the fundamental structure of the Constitution." The argument rests in part on the observation that according to the language of the Detainee Treatment Act, Guantánamo detainees who are tried by a military commission will have only a circumscribed right to a subsequent appeal in federal court, in which they could not raise the basic challenge to the commission's operation that Mr. Hamdan is presenting in his Supreme Court case. So if the justices cannot decide his case, or cases brought by some 150 of the other 500 Guantánamo detainees now pending in the lower courts, fundamental questions about this alternative system of justice will go unresolved. There may be a separate obstacle in the Supreme Court's way. Only eight justices are participating in the case, raising the prospect of a 4-to-4 tie. Chief Justice John G. Roberts Jr. is recused because he was a member of the three-judge panel of the United States Court of Appeals for the District of Columbia Circuit that upheld the government's position in the Hamdan case last July, four days before Mr. Bush nominated him to the Supreme Court. A tie vote in the Supreme Court ordinarily simply affirms the lower court decision, without issuing an opinion or setting a precedent. But in this case, there is no lower court opinion on the jurisdictional question, since there was no Detainee Treatment Act when the appeals court ruled last July. It would require a majority, five of the eight votes, to grant the government's motion to dismiss the case, but the matter might not be as straightforward as that. Even if the government had not filed its motion, the court would still be obliged to assure itself that it has jurisdiction to proceed, in this as in any other case. Whether a tie favors jurisdiction or dismissal appears to be an open question of Supreme Court procedure. Military commissions are not new; they were first used by Gen. Winfield Scott during the war with Mexico in the 1840's. But there have been none since the World War II era. If the court addresses the merits of the Hamdan case, it must decide whether Mr. Bush's military order of Nov. 13, 2001, establishing military commissions to try noncitizens for "acts of international terrorism," had proper authorization. The administration argues that there were "multiple authorizations": from the Congressional resolution known as the Authorization for the Use of Military Force, adopted days after the terrorist attacks of Sept. 11, 2001; from the Uniform Code of Military Justice, which refers to military commissions and authorizes the president to prescribe rules for their operation; and from the president's inherent powers as commander in chief. In addition, the administration argues that the Detainee Treatment Act itself ratified the establishment of military commissions when it circumscribed judicial review of their operations. Mr. Hamdan's military and civilian lawyers, as well as the dozens of organizations and individuals supporting his appeal as "friends of the court," argue to the contrary that no Congressional enactment or inherent power authorized the president to set up what they call a "jerrybuilt tribunal" that falls short of the procedural protections offered by American military law and required by the Geneva Conventions. In addition, they argue, conspiracy, with which Mr. Hamdan has been charged, is not a war crime and is therefore not subject to trial by military commission. The administration argues that the Geneva Conventions do not apply to the conflict with Al Qaeda and that their protections cannot, in any event, be invoked by individual detainees. These assertions have provoked a flood of counterarguments from international law specialists, former senior diplomats and federal judges, and human rights organizations. ---------------------------------- Guantanamo tribunals face court scrutiny By James Vicini Mon Mar 27, 12:57 PM ET Osama bin Laden's former driver is at the heart of a U.S. Supreme Court case this week that could determine whether President George W. Bush has the power to use military tribunals in his war on terrorism. The case, focusing on the war crimes tribunals for prisoners at the U.S. military base in Guantanamo, Cuba, also will weigh the balance of power between the presidency and the courts. In 90 minutes of arguments on Tuesday, the session could produce the most significant ruling on presidential war powers since the end of World War Two. "Reduced to its essence, the government's argument is that the federal judiciary has no real power to review actions taken by the president in the name of fighting terrorism," wrote University law professor Neal Katyal, who is defending bin Laden's former driver-bodyguard, Salim Ahmed Hamdan. In revisiting Bush's policies in the war on terrorism for the first time in nearly two years, the Supreme Court also will take up a second important issue on whether Guantanamo prisoners can go to court in the United States to enforce the protections of the Geneva Convention. The Bush administration says the president has the power to create the military tribunals and the protections of the Geneva Convention do not apply. In the past, the Supreme Court has provided a check on the president's powers in the war on terrorism. Before the justices can rule on either issue, they must decide a third crucial issue -- whether a recent law stripped the court of its jurisdiction over the appeal by a Yemeni accused of being Osama bin Laden's bodyguard and driver. The Detainee Treatment Act, signed by Bush on December 30, severely restricts the ability of prisoners at Guantanamo to bring challenges in federal court. The Bush administration argued the law applied to all existing cases and that the Supreme Court must dismiss Hamdan's appeal without deciding the key issues. Hamdan's attorneys disagreed. They said the U.S. Congress did not intend to strip the court of the power to decide challenges to the lawfulness of the tribunals. SCALIA QUESTIONS RIGHTS During the weekend Newsweek magazine reported Justice Antonin Scalia in a private meeting in Switzerland dismissed the idea that Guantanamo detainees have constitutional rights. Critics complained that he was prejudging the issue and should step aside, although there was no indication he would. Formally called military commissions, the special tribunals were authorized by Bush after the September 11 attacks and have been criticized by human rights groups as being fundamentally unfair. Katyal said Bush lacked the authority to establish the tribunals, based on the president's inherent powers or the joint resolution authorizing military force that the U.S. Congress approved after the September 11 attacks. "Here, the president seeks not merely to detain temporarily but to dispense life imprisonment and death through a judicial system of his own design," Katyal told the court in a written brief filed on March 14. But Solicitor General Paul Clement of the U.S. Justice Department argued the United States throughout its history has used military commissions to try violations of the law of war. "Ninety years ago, in revising the articles of war, Congress recognized that historic practice and approved its continuing use," he said. "And this court upheld the use of military commissions during and after World War Two." Clement repeated Bush's position that the Geneva Convention does not cover or give prisoner-of-war status to al Qaeda members like Hamdan. The Hamdan case will be heard by eight justices. Chief Justice John Roberts has removed himself because before joining the Supreme Court, he was part of a U.S. appeals court panel that ruled against Hamdan. A 4-4 tie would not produce a ruling on the merits but would affirm the appeals court decision for the government. In June 2004, the court dealt the administration a stinging defeat by ruling that Guantanamo prisoners could bring challenges in U.S. courts and that Americans held as enemy combatants must be allowed to contest their detention.