[Ppnews] A Supreme Rebuke - Bush Loses Guantanamo Case

[Political Prisoner News]

http://www.counterpunch.org/cohn06302006.html

June 30, 2006


A Supreme Rebuke


Bush Loses Guantanamo Case

By MARJORIE COHN

In the most significant rebuff to George W. 
Bush's assertion of executive power since he 
declared his "war on terror," the Supreme Court 
called a halt to Bush's kangaroo courts at Guantánamo Bay.

Justice Stevens wrote for the 5-3 majority, "We 
conclude that the military commission convened to 
try Hamdan lacks power to proceed because its 
structure and procedures violate both the 
[Uniform Code of Military Justice] and the Geneva 
Conventions." Justices Ginsburg, Breyer, Souter 
and Kennedy joined Stevens in the majority opinion.

One of Hamdan's lawyers, Georgetown University 
Law School Professor Neal Kayta, called the 
ruling a "rebuke" to a system of "fake courts."

Shafiq Rasul, speaking for himself and two other 
former Guantánamo detainees, said, "We are 
ecstatic at today's outcome. This is another step 
in our collective efforts to see that those we 
left behind are treated fairly under international law."

Michael Ratner, president of the Center for 
Constitutional Rights, which represents nearly 
half of the Guantánamo detainees, was "thrilled" 
by the Court's decision. "What this says to the 
administration is that you can no longer decide 
arbitrarily what you want to do with people. It 
upheld the rule of law in this country and 
determined that the executive has gone beyond the 
constitution and international law."

In November 2001, Bush set up military 
commissions to try Guantánamo prisoners charged 
with crimes. Of the more than 700 men and boys 
who have been housed there in the last four and 
half years, only 10 have been charged with criminal offenses.

Bush charged Salim Ahmed Hamdan, Osama bin 
Laden's driver, with one count of conspiracy "to 
commit . . . offenses triable by military 
commission." Before yesterday's landmark ruling 
on his petition for a writ of habeas corpus, 
Hamdan was awaiting trial in a military commission.

The Bush administration filed a motion to dismiss 
Hamdan's challenge to the military commission 
after Congress passed the Detainee Treatment Act 
on December 30, 2005. In the DTA, Congress 
purported to strip US federal courts of 
jurisdiction to hear habeas corpus petitions filed by Guantánamo detainees.

But the Court held Congress did not intend to 
deny federal court jurisdiction to detainees like 
Hamdan, whose cases were already pending on the date the DTA was enacted.

Although this is a narrow ruling, leaving open 
the door for Bush to argue that Congress 
effectively denied other detainees the right to 
file future challenges to their confinement, the 
Court clearly stated it was reserving any 
decision on whether Congress could 
constitutionally deny a prisoner the right to 
federal habeas corpus jurisdiction.

Unlike the Uniform Code of Military Justice, 
Bush's military commissions would allow a 
defendant to be convicted by evidence he never 
sees in a proceeding he cannot attend with 
evidence that does not meet federal evidentiary 
standards. This includes statements obtained by 
coercion. The majority held Bush failed to show 
it would be impracticable to furnish defendants 
in military commissions safeguards commensurate 
with those guaranteed by the UCMJ.

One of the most critical parts of the Court's 
decision was its ruling that Common Article 3 to 
the Geneva Conventions applies to al Qaeda. 
Common Article 3 prohibits "the passing of 
sentences and the carrying out of executions 
without previous judgment pronounced by a 
regularly constituted court affording all the 
judicial guarantees which are recognized as 
indispensable by civilized peoples."

Article 3 Common requires that prisoners be 
treated humanely; it forbids outrages on personal 
dignity, in particular humiliating and degrading 
treatment. The Pentagon had planned to eliminate 
any reference to Common Article 3's protections 
from its interrogation regulations. But the 
Supreme Court has now affirmed that all 
prisoners, not just prisoners of war, must be 
treated humanely. This is bound to put a severe 
crimp in the Bush administration's cruel and torturous interrogations.

Arguing out of both sides of his mouth, Bush had 
maintained the Geneva Conventions didn't apply to 
al Qaeda because they weren't prisoners of war. 
But Bush also asserted that Common Article 3, 
which applies to conflicts "not of an 
international character," doesn't apply to al 
Qaeda. The Court shot down that argument, holding 
that "the term 'not of an international 
character' is used in contradistinction to a 
conflict between nations.'" Bush can't have it both ways.

Justice Kennedy, in a separate concurrence joined 
by Justices Souter, Breyer and Ginsburg, noted 
that Common Article 3 "is part of a treaty the 
United States has ratified and thus accepted as 
binding law." The target of recent conservative 
attacks for his willingness to cite treaties, 
Justice Kennedy was spot on here.  For while 
treaties are international law, they are also 
part of US law under the Supremacy Clause of our Constitution.

Significantly, even Justices Scalia and Alito, 
who filed separate dissents from the Court's 
decision, did not dispute the notion that Common 
Article 3 applies to al Qaeda, a proposition the 
Bush administration has strongly denied.

The Court also held that Congress's Authorization 
for the Use of Military Force, passed shortly 
after the September 11, 2001 attacks, did not 
expand Bush's authority to convene military 
commissions that do not comport with UCMJ 
safeguards. This is an important precedent that 
opponents of Bush's warrantless surveillance of 
Americans can cite in opposition to 
administration claims that the AUMF authorizes the spying program.

Four justices - Stevens, Souter, Breyer and 
Ginsburg - notably cited Protocol I of the Geneva 
Conventions, Article 75. It incorporates trial 
protections, including the right to be tried in 
one's presence. Although the US has not ratified 
Protocol I, they wrote, "it appears that the 
Government 'regard[s] the provisions of Article 
75 as an articulation of safeguards to which all 
persons in the hands of an enemy are entitled.'" 
Article 75, the four justices said, is 
"indisputably part of the customary international law."

The dissent by Justice Thomas shows that he 
continues to be the Bush administration's 
toady.  In Hamdi v. Rumsfeld  two years ago, he 
said, "This detention falls squarely within the 
Federal Government's war powers, and we lack the 
expertise and capacity to second-guess that 
decision." Yesterday, Justice Thomas wrote in his 
Hamdan dissent that the Court's opinion "openly 
flouts our well-established duty to respect the 
Executive's judgment in matters of military operations and foreign affairs."

In contrast, Justice Breyer's concurrence harked 
back to the majority opinion in Hamdi, saying, 
"The [Hamdan] Court's conclusion ultimately rests 
upon a single ground: Congress has not issued the Executive a 'blank check.'"

Most importantly, the Supreme Court reiterated 
that, "Nobody in enemy hands can be outside the 
law." Now Bush can no longer deny the Guantánamo 
detainees basic due process. This decision is a 
significant victory for justice and the rule of law.

Marjorie Cohn is a professor at Thomas Jefferson 
School of Law, president-elect of the National 
Lawyers Guild, and the US representative to the 
executive committee of the American Association of Jurists.


The Freedom Archives
522 Valencia Street
San Francisco, CA 94110
(415) 863-9977
www.freedomarchives.org 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://freedomarchives.org/pipermail/ppnews_freedomarchives.org/attachments/20060630/aec62347/attachment.htm>