http://www.washingtonpost.com/wp-dyn/content/article/2006/06/29/AR2006062900928.html
Supreme Court Rejects Guantanamo War Crimes Trials In 5-3 Decision Justices Rebuke Bush's Anti-Terror Policy By William Branigin Washington Post Staff Writer Thursday, June 29, 2006; 1:22 PM The Supreme Court today delivered a stunning rebuke to the Bush administration over its plans to try Guantanamo detainees before military commissions, ruling that the commissions violate U.S. law and the Geneva Conventions governing the treatment of war prisoners. In a 5-3 decision, the court said the trials were not authorized by any act of Congress and that their structure and procedures violate the Uniform Code of Military Justice (UCMJ) and the four Geneva Conventions signed in 1949. Justice John Paul Stevens wrote the opinion in the case, called Hamdan v. Rumsfeld . Chief Justice John G. Roberts Jr. recused himself. The ruling, which overturned a federal appeals court decision in which Roberts had participated, represented a defeat for President Bush, who had ordered military trials for detainees at the Guantanamo Bay naval base. About 450 detainees captured in the war on terrorism are currently held at the U.S. naval base in Cuba. Trying them before military commissions would place them under greater restrictions and afford them fewer rights than they would get in federal courts or regular military courts. Bush said he would consult with Congress to seek "a way forward" after the ruling, which reversed the appeals court ruling on statutory grounds, avoiding major constitutional issues. Answering questions at a news conference with the visiting Japanese prime minister, Bush said, "The American people need to know that this ruling, as I understand it, won't cause killers to be put out on the street. . . . I'm not going to jeopardize the safety of the American people. . . . I will protect the people and at the same time conform with the findings of the Supreme Court." Bush added, "I want to find a way forward. In other words, I have told the people that I would like for there to be a way to return people from Guantanamo to their home countries. But some people need to be tried in our courts, and the Hamdan decision was the way forward for that part of my statement." The case of Salim Ahmed Hamdan, a 36-year-old Yemeni with links to al-Qaeda, was considered a key test of the judiciary's power during wartime and carried the potential to make a lasting impact on American law. It challenged the very legality of the military commissions established by President Bush to try terrorism suspects. Hamdan, who was charged with a single count of conspiracy to commit war crimes and terrorism, had argued that no congressional act or common law of war supported a trial by a military commission for conspiracy, an offense he maintained was not covered by the laws of war. He also argued that the commission's procedures violated U.S. military and international law, including the principle that a defendant must be allowed to see and hear the evidence against him. Hamdan acknowledged that a court martial constituted in accordance with the UCMJ would have authority to try him. Writing the majority opinion, Stevens said, "we conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions." He said four justices also found that the offense attributed to Hamdan is not one that can be tried by a military commission under the laws of war. The ruling does not mean that the United States must close the Guantanamo Bay detention facility or free any of its detainees, including Hamdan. According to Hamdan's military lawyer, Lt. Cmdr. Charles Swift, he now must be tried either in a federal court or before a properly constituted court martial. Swift told reporters that the ruling demonstrates the strength of the U.S. justice system. "It makes us unique, it makes us stronger, and it means that we will ultimately win every struggle," he said. "I am ready to defend [Hamdan] in a fair trial," Swift said, adding that he has no preference on whether it takes place in federal court or a court martial. If the government wants to pursue a conspiracy charge, a federal court would be the proper venue, he said. "If they want to charge him with a war crime, I'm ready to defend him in a court martial." The ruling was welcomed by three British former detainees at Guantanamo who have emerged as outspoken critics of the detention center since their release without charge after two years in custody there. "We are ecstatic at today's outcome," said one of the three, Shafiq Rasul, in a statement. "This is another step in our collective efforts to see that those we left behind are treated fairly under international law." Joining Stevens in the majority were justices Ruth Bader Ginsburg, Stephen G. Breyer, Anthony M. Kennedy and David H. Souter. Dissenting were justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. In a dissenting opinion, Scalia pointed to congressional enactment on Dec. 30, 2005, of the Detainee Treatment Act, which provides that as of that date, "no court, justice or judge" shall have jurisdiction to consider an application by a Guantanamo detainee for habeas corpus, challenging his detention. Thomas said in another dissenting opinion that the Supreme Court "lacks jurisdiction" to consider Hamdan's claims because of that law and that "its opinion openly flouts our well-established duty to respect the Executive's judgment in matters of military operations and foreign affairs." For the first time in his 15-year tenure on the court, Thomas took the unusual step of reading part of his dissenting opinion from the bench. The court's willingness "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous," he said. Stevens wrote, however, that although the Detainee Treatment Act implicitly recognizes the existence of the military commissions, it "contains no language authorizing that tribunal or any other at Guantanamo Bay." Moreover, neither the act nor a congressional authorization for the use of military force against terrorists in 2001 "expands the president's authority to convene military commissions." In a concurring opinion, Breyer strongly disputed the dissenters' assertion that today's ruling would, as Thomas wrote, "sorely hamper the president's ability to defeat a new and deadly enemy." "The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a 'blank check,' Breyer wrote. "Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here. Nothing prevents the president from returning to Congress to seek the authority he believes necessary." He argued that far from weakening "our nation's ability to deal with danger," judicial insistence upon consultation with Congress "strengthens the nation's ability to determine -- through democratic means -- how best to do so." The case raised core constitutional principles of separation of powers as well as fundamental issues of individual rights. Specifically, the questions concerned: The power of Congress and the executive to strip the federal courts and the Supreme Court of jurisdiction. a.. The authority of the executive to lock up individuals under claims of wartime power, without benefit of traditional protections such as a jury trial, the right to cross-examine one's accusers and the right to judicial appeal. a.. The applicability of international treaties -- specifically the Geneva Conventions on the treatment of prisoners of war -- to the government's treatment of those it deems "enemy combatants." a.. Hamdan was captured by Afghan militiamen in late November 2001 after the radical Islamic Taliban movement was driven from power in Afghanistan by U.S.-backed Afghan forces. He was subsequently turned over to U.S. authorities, who sent him to the U.S. detention facility at the Guantanamo Bay naval base in Cuba in 2002. He acknowledged that he had worked as a bodyguard and driver for Osama bin Laden, whom he met in Afghanistan in 1996. But he denied having any role in the Sept. 11, 2001, terrorist attacks carried out by bin Laden's al-Qaeda network. On Nov. 13, 2001 -- the day the Afghan capital, Kabul, fell to U.S.-backed forces after five years of Taliban rule -- President Bush issued Military Order No. 1 declaring that military commissions would try foreign terrorist suspects for alleged war crimes and sentence them to punishments including death. The administration argued that the commissions were authorized by laws on military justice, by a congressional resolution passed on Sept. 14, 2001, and by the powers vested in the president as commander in chief under the U.S. Constitution. Hamdan later became one of the first 10 detainees at Guantanamo chosen to face military trials. He was charged in July 2004 with conspiracy to commit terrorism and war crimes while serving as a weapons courier and driver for bin Laden and other top al-Qaeda members. If convicted, he faced a maximum sentence of life in prison. Military prosecutors alleged that Hamdan delivered arms, ammunition and other supplies to al-Qaeda fighters, picked up weapons at Taliban warehouses and drove or accompanied bin Laden to appearances at al-Qaeda training camps and other events. During these appearances, bin Laden would give speeches encouraging followers to carry out suicide attacks and engage in holy war against Americans, the prosecution alleged. Specifically, prosecutors charged, Hamdan served as a driver in a convoy in which bin Laden fled potential U.S. reprisal attacks in Afghanistan at the time of the al-Qaeda bombings of two U.S. embassies in East Africa in 1998 and the attacks on the World Trade Center and Pentagon on Sept. 11, 2001. In addition, he allegedly received weapons training at al-Qaeda's Farouq training camp in southern Afghanistan on various occasions between 1996 and 2001. In April 2004, Hamdan, represented by Georgetown University law professor Neal K. Katyal, , filed a petition for habeas corpus, challenging the legality of his detention. While the petition was pending before the U.S. District Court in Washington, the government formally filed the conspiracy charges against him and set in motion his trial before a military commission. In August 2004, Hamdan appeared in a makeshift courtroom at Guantanamo as the U.S. military formally opened its first trial of an alleged al-Qaeda collaborator. His appearance, after nearly three years in detention, marked the first time that the United States had used military commissions to try war crimes suspects since World War II. Hamdan's military attorney promptly attacked the military commission process, calling it unfair, and challenged the qualifications of the presiding officer and several other members. a.. In November 2004, the U.S. District Court granted Hamdan's habeas petition in part, ordering a halt to the military commission. The court ruled that Hamdan could not be tried by a military commission unless a competent tribunal determined that he was actually an "unlawful combatant" and not a prisoner of war under the 1949 Geneva Convention. Hamdan maintained that instead of facing a military commission under a presidential order, he should be tried by a court martial under the U.S. Code of Military Justice in accordance with the 1949 convention. That would afford him the same rights accorded to U.S. military personnel tried by courts martial, rather than the restrictions he would encounter in a military commission. Human rights groups have charged that the commissions' rules do not meet international standards for fair trials. The Bush administration appealed the District Court's ruling, and the Defense Department meanwhile gave Hamdan and other Guantanamo detainees hearings before a Combatant Status Review Tribunal. In Hamdan's case, the tribunal affirmed that he was an enemy combatant requiring continued detention. It said he was "either a member of or affiliated with al-Qaeda." In July 2005, the U.S. Court of Appeals for the District of Columbia Circuit overturned the District Court's decision, breathing new life into the military commissions. The appeals court said the Geneva Convention does not apply to al-Qaeda members and that the military commissions were authorized by Congress. The Supreme Court agreed in November last year to hear Hamdan's appeal of the ruling. Chief Justice Roberts, one of the judges who voted against Hamdan's appeal when he served on the appeals court, recused himself from the case. Congress entered the fray in December, passing the Detainee Treatment Act, which stripped federal courts of jurisdiction over Guantanamo detainees' habeas corpus petitions that were "pending on or after" the date of the law's enactment. The act also provided an alternative military process for reviewing the enemy combatant status of detainees and designated the D.C. Circuit appeals court as the sole venue for appeals of military commission verdicts. Arguing that the act implicitly accepts the legitimacy of the military commissions and that it disallows Hamdan's habeas petition, the administration asked the Supreme Court in January to dismiss the case. Administration lawyers said the proper time for Hamdan to file a constitutional challenge was after his trial before a military commission. Staff writers Fred Barbash and Daniela Deane contributed to this article. [Non-text portions of this message have been removed] ------------------------ Yahoo! Groups Sponsor --------------------~--> Yahoo! Groups gets a make over. 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