Marjorie Cohn: Supremes Consider Kangaroo Courts

For Background See Also…

• Marjorie Cohn | Graham Amendment Invokes Constitutional Crisis
• Marjorie Cohn | Supreme Court: War No Blank Check for Bush

Today the Supreme Court is hearing oral arguments in the most significant case to date on the limits of George W. Bush's authority in his "war on terror." In the first two cases it heard, the high court reined in Bush for his unprecedented assertion of executive power. It held in Rasul v. Bush that the Guantánamo prisoners could challenge their confinement in US federal courts. In Hamdi v. Rumsfeld, the Court said that "a state of war is not a blank check for the President when it comes to rights of the Nation's citizens."

Salim Ahmed Hamdan, Osama bin Laden's chauffeur, is facing trial in one of the military commissions that Bush created on November 13, 2001. The case pending in the high court will determine the legality of those military commissions, and will decide whether Hamdan and other Guantánamo detainees can challenge their detention in US federal courts.

The importance of Hamdan v. Rumsfeld is evident from the sheer number of amicus briefs it has garnered. Of the 42 amici in this case, 37 - including one filed by 280 law professors, this writer among them - support Hamdan's position.

Afghani militia forces captured Hamdan in Afghanistan in November 2001. They turned him over to the United States military, which transported him to the Guantánamo Bay naval base in Cuba, where he continues to be detained.

In 2004, the US government designated Hamdan an "enemy combatant" and charged him with conspiracy to commit the following crimes: attacks on civilians and civilian objects, murder and destruction of property by an unprivileged belligerent, and terrorism. Hamdan has not been charged with committing the underlying substantive crimes. The military commissions only have jurisdiction to try war crimes. Conspiracy is not a war crime.

In November 2004, the US District Court for the District of Columbia granted Hamdan's petition for habeas corpus. That court held that Hamdan could not be tried by a military commission unless a competent tribunal first determined that he was not a prisoner of war under the Third Geneva Convention. The district court also forbade the military commission from trying Hamdan unless the rules for those commissions are amended to be consistent with and not contrary to the Uniform Code of Military Justice (UCMJ).

The Third Geneva Convention requires that if there is a doubt about whether someone is a POW, a "competent tribunal" shall make the determination; meanwhile, the prisoner must be treated as a POW.

Geneva III also provides that prisoners of war shall be tried in the same types of courts as members of the armed forces of the detaining power. It says, "In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized."

Article 3 common to the Geneva Conventions 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."

Bush crafted the military commissions to deny the accused due process protections the UCMJ guarantees. The accused can be convicted and sentenced to death based on evidence he never sees, in proceedings where he cannot be present. Hearsay is admissible and the standard for admissibility of evidence falls below that required by US military and civilian courts.

In July 2005, the US Court of Appeals for the DC Circuit overturned the district court’s ruling. The appellate court held that the Geneva Convention is unenforceable in court, and that Geneva does not apply to al Qaeda. Chief Justice John Roberts, who voted against Hamdan in the Court of Appeals, will not take part in the Supreme Court decision.

Meanwhile, on December 30, 2005, Congress passed the Detainee Treatment Act of 2005, which codifies US law against cruel, inhuman and degrading treatment. But the act also purports to strip our federal courts of jurisdiction to hear the Guantánamo detainees' habeas corpus petitions, including those that complain of mistreatment.

The Bush administration then moved to dismiss Hamdan's petition, but the Supreme Court kept the case alive and will hear it today.

Hamdan's brief challenges the Supreme Court to stop "this unprecedented arrogation of power." It warns that "if in the interest of 'national security,' this Court concludes that the President has such authority, it will be hard pressed to limit, in any principled manner, the President's assertion of similarly unprecedented powers in other areas of civil society, so long as they purport to serve the same objective. Indeed, it is not hard to imagine a future President invoking this case as precedent, and asserting the need to subject American citizens to military commissions for any offense somehow connected to the 'war on terror.'"

"In the end," the Hamdan brief says, "the President cannot claim that the criminal offenses of the laws of war apply to the war on terror, and at the same time deny the accused the right to invoke any of the protections of the laws of war [the Geneva Conventions]."

Steve Clemons, of The Washington Note, recently quoted Sonia Picado, former Costa Rican ambassador to the US, and the first and only woman judge on the Inter-American Court of Human Rights. Picado said that Bush's military commissions sent "a cold chill" through democracies around the world, which had suffered historically from oppressive secret military tribunals.

Justice Antonin Scalia, who has already pre-judged this case, should recuse himself. In a March 8 talk at the University of Freiberg in Switzerland, Scalia denied that the detainees have legal rights. "War is war," he declared, "and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts." Scalia, who flipped his middle finger at reporters in Boston on Sunday, will give the finger to Salim Ahmed Hamdan and the rule of law if he remains on the case.

Marjorie Cohn, a contributing editor to t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists.

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