In The Supreme's Court
By William Fisher
29 March, 2006
U.S. Supreme Court this week heard arguments in what will almost certainly
be one of the landmark cases of the past fifty years.
Their decision will determine
whether the Supreme Court will continue to assert its authority to review
and check the executive’s power to detain and try individuals
caught up in the “war on terror.”
The case is called Hamdan
versus Rumsfeld. The Hamdan is Salim Ahmed Hamdan, who has been a prisoner
at Guantanamo Bay, Cuba, since 2002. The Rumsfeld is Defense Secretary
Donald Rumsfeld, whose department has jurisdiction over all detainees
held at U.S.-controlled military prisons.
Since the Court agreed to
hear Hamdan’s case, the administration of President George W.
Bush filed an extraordinary motion to dismiss it. The government argues
that a law passed by Congress late last year was intended to deny the
right of habeas corpus to all prisoners in U.S. custody -- including
not only new cases, but those that were pending at the time Congress
acted. The Bush administration contends that Congress intended to strip
the high court of its jurisdiction to hear any challenge arising out
of the detentions at Guantanamo Bay.
But according to Deborah
Perlstein, an attorney with legal advocacy group Human Rights First,
“Apart from the weakness of the Administration’s case on
the merits, the statute passed by Congress last year makes clear its
intent to apply only to cases arising after Hamdan’s.”
Perlstein told us, “It’s
hard to see even this new Court accepting that kind of frontal assault
on its own power.”
Two new Justices have been
appointed to sit on the Supreme Court in the past few months. John Roberts
has become chief justice, replacing William Renquist, who died. And
Samuel J. Alito Jr. has joined the court, replacing Sandra Day O’Connor,
who resigned after 24 years as an associate justice.
Even if the justices resolve
the court-stripping issue, it will be left to decide two other weighty
questions: Does the President have the authority to convene military
commissions to try alleged terrorists and ignore the procedural protections
that Congress and the Constitution have long afforded those facing U.S.
military trials? And are the Geneva Conventions – the laws of
war that the United States long ago ratified and made part of U.S. law
– enforceable by individuals in federal court?
According to Perlstein, “Either
one of these questions is generational in nature. Taken together, they
give Hamdan the potential to be one of the most important cases the
Supreme Court has heard on the issue of presidential power in the past
To complicate matters further,
Chief Justice Roberts has recused himself from the Hamdan case because
he participated in ruling on it in a lower court before his recent appointment.
That means eight justices will hear the arguments, thus eliminating
the possibility of the 5-4 decision often made by this court in contentious
But, says Perlstein, “More
significant than the absence of Chief Justice Roberts, is the absence
of Justice Rehnquist and O’Connor in this kind of case. Those
justices had for the past nearly 30 years been at the leading edge of
the Court’s assertion of its own power, above Congress and the
Executive, as a co-equal branch of government. Whether the absence of
their voices will have left a court more reluctant to weigh in on matters
of individual rights in the face of government power remains to be seen.”
The Hamdan case has been
bouncing around the U.S. justice system for several years, beginning
in 2004, when the DOD Formally referred charges against the 34-year-old
Yemeni national, one of six Guantánamo detainees who were designated
by President Bush in July 2003 as subject to trial by military commission
under the President’s Order of November 13, 2001. Hamdan was captured
by Afghan forces and handed over to the U.S. military in Afghanistan
in late 2001.
The government accuses Hamdan
of serving as Osama Bin Laden’s bodyguard and personal driver,
delivering weapons to al Qaeda members and purchasing vehicles for Bin
Laden’s security detail. He is formally charged with conspiracy
to attack civilians, attack civilian objects, murder, destruction of
property, and terrorism.
Held at the U.S. Naval Base
at Guantánamo Bay, Cuba, since early 2002, Mr. Hamdan is currently
represented by Navy Lt. Cmdr. Charles Swift, who brought suit in 2004
seeking Hamdan’s release from solitary confinement and declaring
the commissions unconstitutional.
Documents unsealed in early
August reveal allegations that Hamdan was beaten, threatened, and kept
in isolation for upwards of eight months. A military commission preliminary
hearing began the week of August 23, 2004.
In September 2004, the petition
was re-filed in the federal district court for the District of Columbia,
and, in November 2004, that court found the military commission unlawful
because the process violated the laws of war and military law, and stayed
In July 2005 the Court of
Appeals for the District of Columbia reversed the district court and
upheld the commission as lawful. Hamdan’s lawyers appealed the
ruling, and in November 2005 the Supreme Court agreed to hear the case.
In January 2006, the government
filed a motion for the Supreme Court to dismiss the case on the ground
that the Detainee Treatment Act of 2005 (the Graham/Levin amendment)
divested Hamdan of the right to seek habeas corpus in a federal court.
That law entered congress
as an amendment to a massive war-spending bill. It was introduced as
a compromise by Sen. Lindsey Graham, a conservative Republican from
South Carolina and a former military judge, and Sen. Carl Levin, a liberal
Democrat from Michigan.
HRF’s Perlstein told
us the Graham-Levin compromise was “a mistake”. She says
that she understands Senator Graham’s motivation – “to
try to address the uncertain legal status of those held in a U.S. detention
system that includes thousands of people worldwide.”
However, she adds, “The
great irony of Congress’ action here was to guarantee that the
question of the legal status of those stuck in limbo already for years
would remain unresolved, and would continue to be litigated for some
time to come. Apart from the Amendment’s legal infirmities –
trying to strip the federal courts of the power to enforce the Constitution
against an executive branch strikingly uninterested in law – as
a matter of security policy, it effectively made matters worse.”
Brian J. Foley, a professor
at Florida Coastal School of Law, told us he was uncertain about whether
the Graham-Levin measure “clearly supports an argument that it
is prospective only. Legislative history may say otherwise, but courts
might not consider legislative history if they think the text is clear.
It will be up to the courts”
However, he adds, “Congress
did make clear that it doesn't want to give these prisoners a way to
'complain' about conditions of confinement, including torture. Congress
made clear that it doesn't want to give them a way to 'complain' that
they are not being given a hearing, or that getting a decision in a
hearing is taking too long. Congress was foolish to pass this law, because
these enormous presidential powers can so easily be turned against US
citizens. What if a US citizen is rounded up and never given a hearing
to test whether he's an enemy combatant -- or even a US citizen? Well,
he can't access the courts, thanks to this statute. The only hope is
that the Constitution's right to habeas corpus transcends this statute.
That will ultimately be a major issue in the Supreme Court, and we can
only hope that the justices don't simply side with the Administration.”
The High Court’s decision
will not be public until July. Meanwhile, American citizens ought to
be pondering whether it wants to become a monarchy, ruled by a president.
They also ought to give some serious thought to the kind of message
indefinite detention of prisoners sends to the rest of the world.