Posted on 03/28/2006 12:16:41 PM PST by presidio9
A lawyer for Osama bin Laden's former driver urged the Supreme Court on Tuesday to curb President Bush's use of wartime powers to prosecute terror suspects held at a U.S. military base at Guantanamo Bay, Cuba.
Attorney Neal Katyal, who represents Salim Ahmed Hamdan, told justices the military commissions established by the Pentagon on Mr. Bush's orders are flawed because they violate basic military justice protections.
"This is a military commission that is literally unburdened by the laws, Constitution and treaties of the United States," Katyal said.
Justices Antonin Scalia and Samuel Alito, the newest member of the court, pressed Katyal to explain why a defendant before a military commission should be given something that defendants in civilian criminal trials normally don't get — the chance to challenge the case before a verdict is reached.
"If this were like a (civilian) criminal proceeding, we wouldn't be here," Katyal said.
At stake is more than whether Hamdan, after nearly four years at the Navy prison in Guantanamo Bay, goes on trial for war crimes before a special military commission, CBS News reports. Analysts say if the high court rejects Mr. Bush's plan to hold such trials, it could rein in the president's expanded powers in pursuing and punishing suspected terrorists.
Scalia's presence on the bench signaled his rejection of a request to recuse himself that was filed Monday by five retired generals who support Hamdan's arguments. In a letter to the court, the generals asked Scalia to withdraw from participating in the case because of remarks he made in a recent speech in Switzerland about "enemy combatants." Speaking at the University of Freiberg in Switzerland on March 8, Scalia said foreigners waging war against the United States have no rights under the Constitution.
Still on the subject of Guantanamo Bay, Scalia also referred to the war in Iraq, saying: "I have a son on that battlefield and they were shooting at my son and I am not to give this, this man who is captured in a war, a full jury trial."
Scalia has a higher-than-typical public profile for a Supreme Court justice and does make the headlines occasionally, including last weekend when there were questions about a gesture he used when corralled by reporters at church.
Alito also suggested the justices should wait until Hamdan's trial is over to allow him to question whether charging him with conspiracy violates the laws of war, as Katyal contends.
But Katyal brushed aside the contention. "The government has had four years to get their charges together on Mr. Hamdan," he said.
Hamdan, a Yemeni who was captured in Afghanistan in November 2001, is charged with conspiracy to commit war crimes, murder and terrorism. He claims he is an innocent father of two young daughters and worked as a driver for bin Laden in Afghanistan only to eke out a living for his family.
The Bush administration says he is a trained terrorist who should be tried for war crimes before a special military commission, the first such trial since the aftermath of World War II.
Chief Justice John Roberts, who had voted in the case as a lower court judge, left the bench before arguments began and won't be involved in the decision.
Hamdan is among about 490 foreigners being held as "enemy combatants (video)" at the military prison in Guantanamo Bay. Ten of the men, including Hamdan, have been charged with crimes.
Justices ruled two years ago that the government could detain enemy combatants but not shut off their access to U.S. courts.
In this follow-up case, justices are considering the government's plans for trials before a panel of military officers.
Hamdan also is represented by a military lawyer. In a speech Monday at the Cato Institute, Navy Lt. Cmdr. Charles D. Swift, said he's never sought more than "a full and fair trial" for Hamdan. "When our citizens are abroad and these things are done, how will we say it was wrong?"
Hamdan's trial was halted last fall when a federal judge ruled that he could not be tried by a U.S. military commission unless a "competent tribunal" determined first that he was not a prisoner of war under the 1949 Geneva Convention.
Roberts was on a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that said the trial could resume, and Hamdan's attorneys appealed to the Supreme Court. Because of the conflict, Roberts removed himself from the case.
The court could dodge a major ruling in the case, on grounds that a new law stripped the justices' authority to consider it. The law passed late last year bars Guantanamo prisoners from filing petitions to fight their detentions, and the administration claims this law retroactively voided hundreds of lawsuits.
It's See-Bs. How anyone can still take them seriously as a source of information is beyond me.
CBS NEWS should worry about their own loss of power.
prepare for the endless round-after-round of handwringing over Scalia's refusal to recuse himself when this does not go their way.
CBS news and a RAT talking. Ha! Lots of luck stupid.
Here's an idea: Let's put this one to a congressional vote as well. Regardless of how people respnd to polls. On election day, terrorism will always be the number one issue.
"Lots of luck stupid"
I meant Lots of luck stupid CBS and RATs.
Just because a justice repeats his previous written opinions at a public venue does not make a case for recusal.
Methinks that the people with a weak case were overreaching by asking Scalia to recuse himself.
I wonder when they'll demand Ruth Bader Ginsberg recuse herself from all ACLU cases because of her affiliation with the ACLU for so many years. Especially when the case pertains to abortion or lowering the age of consent, etc.
Maybe we should start sending emails to ABC-DNC/CBS-DNC/NBC-DNC [MSM/DNC] and ask that question.
Only an idiot would claim otherwise:
"...(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS- Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act."
Foreign combatants fighting against the U.S. have not rights under the Constitution, and combatants who violate the obligations of combatants under the Geneva Convention and other treaties which create the "laws of war" have no rights under those treaties.
Should be a short deliberation.
I wonder if she will stay awake.
Who are these generals? Do they have aspirations in some future Democrat adminstration or on the staffs of some Dem politicians?
Still on the subject of Guantanamo Bay, Scalia also referred to the war in Iraq, saying: "I have a son on that battlefield and they were shooting at my son and I am not to give this, this man who is captured in a war, a full jury trial."
Now that's interesting. I did not know that Scalia has a son in the military. How many national politicians can say that?
Am I missing something? I don't see Kennedy's name anywhere in that article. Kennedy will almost certainly be the deciding vote, so how do you get "no" from an article where Kennedy isn't even mentioned?
Brig. Gen. David Brahms, Brig Gen. James Cullen, Vice Adm. Lee Gunn, Rear Adm. John Hutson, and Rear Adm. Donald Guter.
PS. Matthew Scalia is an Army captain.
Which the press lied about. They took a gesture meaning "I don't care" and said he made a "vulgar" gesture, implying that he flipped the bird when he did no such thing.
Here are the Oral Arguments - you can "watch" (listen) to them here: http://www.c-span.org/
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