Supreme Court Hears Arguments on Legality of Military Commissions

American Forces Press Service ^ | Kathleen T. Rhem

[SandRat]

WASHINGTON, March 28, 2006 – The Supreme Court today heard oral arguments in a case that could make or break the government's military commissions process for terror war detainees held at Guantanamo Bay, Cuba. At issue in the case of Hamdan v. Rumsfeld is the legality of the military commissions set up after the Sept. 11, 2001, terrorist attacks. The court also is deciding a question on its own jurisdiction in the case.

The government, represented here by Solicitor General Paul D. Clement, filed a brief with the court that argued the case on six separate legal issues. Government attorneys contend the president has constitutional and congressional authority to establish such war crimes courts outside the U.S. judiciary system and that al Qaeda detainees don't fall under the tenets of the Geneva Conventions.

"For centuries, this Nation has invoked military commissions to try and punish captured enemy combatants for offenses against the law of war," Clement wrote in introducing his brief.

Attorneys for Salim Ahmed Hamdan, a Yemeni citizen captured in Afghanistan and accused of being a body guard for terrorist leader Osama bin Laden, argue the process was never expressly authorized by Congress and doesn't meet standards of constitutional checks and balances.

"The president seeks not merely to detain temporarily but to dispense life imprisonment and death through a judicial system of his own design. Anyone, anytime, may be swept into this system and forced to endure years of waiting before their cases are even heard," Georgetown University law professor Neil Katyal, the defense's counsel of record in this case, wrote in a brief to the Supreme Court.

Hamdan's case has taken a circuitous route to the Supreme Court. He first appeared in court in a military commission pre-trial hearing at Guantanamo Bay in August 2004. That hearing ended with the presiding officer granting a continuance for the defense while senior officials in the commissions process ruled on a request by Hamdan's military attorney, Navy Lt. Cmdr. Charles Swift, to have several panel members removed for cause.

Before that matter could be settled, Judge James Robertson, of the U.S. District Court in Washington, ruled in November 2004 that the government had overstepped its bounds and violated the Geneva Conventions in trying Hamdan by military commission. The judge ruled the government should try Hamdan in a military court-martial, as it would a prisoner of war.

The government won on appeal when the U.S. Court of Appeals for the D.C. Circuit ruled in July 2005 that the military commission is a competent tribunal to try war crimes cases. Supreme Court Chief Justice John Roberts was a member of that panel before his appointment to the Supreme Court and has recused himself from the current case because of that conflict of interest.

The Detainee Treatment Act, a new law passed by Congress and signed by President Bush in December, further complicates the issue before the court today. The law strips the U.S. courts of jurisdiction in cases brought by detainees at Guantanamo Bay.

The Detainee Treatment Act allows for detainees to appeal convictions by military commissions to the D.C. Court of Appeals, but not to bring cases forward questioning the legality of the process or contesting their detention.

Soon after the law's enactment, the government petitioned the court to drop the Hamdan case on the premise that it no longer has jurisdiction in the matter.

The court announced Feb. 21 they would not rule on the matter but would instead hear arguments on the issue today with the original case. It also added an extra 30 minutes to the original hour allotted to discuss the additional question of jurisdiction.

The Supreme Court will announce its decisions in the case before it adjourns for the summer recess, usually sometime in late June.

[pierrem15]

I caught a little of Breyer's and Souter's questioning: basically, they deny that the Congress has the authority to remove certain cases from Federal jurisdiction, despite the fact that the power to do is explicitly stated in the Constitution.

They should be impeached.

[muawiyah]

Breyer and Souter seemed to be remarkably unaware there's a war on.

A thought ~ Congress appropriates funds for Supreme Court hearings to be held just outside the Green Zone in Iraq.

[Redleg1963]

I thought the US Court of Appeals had some very compelling arguements.

http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/04-5393a.pdf

[pierrem15]

The Congress could do what it did to Samuel Chase (if I remember correctly): defund all use of the SCOTUS building.

Make them hear cases in Starbucks.

[pierrem15]

The Appellate court issued a great opinion: clearly reasoned and based on the only reasonable interpretations of statute, treaty and precedent and the facts.

The district court was an ass.

[Lucky Dog]

…they deny that the Congress has the authority to remove certain cases from Federal jurisdiction, despite the fact that the power to do is explicitly stated in the Constitution.

Just for reference:

US Constitution. Article III Section 2

(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.)

(This section in parentheses is modified by Amendment XI.)

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Amendment XI - Judicial Limits. Ratified 2/7/1795. Note History

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

[pierrem15]

and under such Regulations as the Congress shall make.

The Congress has stripped the Court of some of its appellate jurisdiction regarding detainees like Hamdan. Breyer and Souter appeared to argue today that because this indirectly stripped Hamdan of habeus rights, it was 'unconstitutional.' Since the law was designed specifically to remove any standing for someone like Hamdan to bring suit before the court in this manner, how can they simply ignore the law?

Oh, I forgot. They do that all the time.

[Lucky Dog]

US Constitution. Article III Section 2

(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.)

I believe the bold print text above is the one on which the justices are hanging their argument.

[pierrem15]

So you're arguing that this is an 'original' jurisdiction case??

[JCEccles]

I think he is.

[Lucky Dog]

So you're arguing that this is an 'original' jurisdiction case??

Sorry to take so long to reply... Called away on an essential errand.

The straight forward answer to your question is that I (meaning me, personally) am not so arguing. Rather, I am postulating that these are the grounds from which the dissenting justices are arguing.

These people are liberal (intellectually warped), but not completely stupid. Consequently, I doubt they would attempt to pose an argument that was in direct contravention of the clear wording of the US Constitution. In short, these liberal justices would attempt to choose a portion of the US Constitution that would, in their judgment, require an interpretation to give them the power to rule.

Have I answered your question?

[pierrem15]

Yes, but your answer is rather disturbing because it means that there is no power exercised by the other branches not subject to judicial review on any grounds when a majority of the court feels that they need to go out and become caped crusaders to right wrongs according to their prejudices.

This includes interefering with military operations so that they feel better about themselves when meeting other bien pensants on their European vacations or at legal conferences.

[Lucky Dog]

…it means that there is no power exercised by the other branches not subject to judicial review on any grounds when a majority of the court feels that they need to go out and become caped crusaders to right wrongs according to their prejudices…

There remain four very important checks on the abuse of judicial power you posit.

First, and perhaps most accessible as a remedy to your concerns, is the power of judicial appointment by the President with the advice and consent of the Senate. If this power is exercised to appoint strict, competent, courageous constructionists and originalists, then the foundations of the Republic remain protected… at least from judicial attacks.

Second, and perhaps least accessible as a remedy to your concerns, is the power of impeachment and removal from the bench. This power is very difficult to exercise by intent of the founding fathers to somewhat isolate the judiciary from the vicissitudes of political influence.

Third, and probably most accessible as a remedy to your concerns, is the power delegated to Congress to create, abolish and regulate the courts in Article III, Section 2. This power has been used on several occasions and probably will continue to be used.

Fourth, and probably least accessible in terms of current political will, is the power of the Executive Branch to refuse to enforce edicts of the courts.

Fifth, and almost equally inaccessible in terms of political will, is the power of the Legislative Branch to de-fund, or refuse to fund, the operations of the court.

These checks, built into our Republic’s foundations, are sufficient to control judicial power abuse if employed by politicians more intent on patriotic duty than acquisition of party or personal power. Sadly, no system of government can withstand the depredations of corrupt individuals bent solely on exercise of personal power or illicit accumulation of personal wealth. We patriots can only demand through the ballot that our representatives are honest and patriotic. Alternately, we will subject to the tyranny warned of by Thomas Jefferson and John Adams.