Today, the U.S. Supreme Court will hear what will
almost certainly be one of the landmark cases of the past 50 years.
Its 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 v. Rumsfeld. The plaintiff is Salim Ahmed
Hamdan, who has been a prisoner at Guantanamo Bay, Cuba, since 2002. The defendant
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 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
But according to Deborah Pearlstein, an attorney with the 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."
Pearlstein told IPS, "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 Rehnquist,
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, they 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 Pearlstein, "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 half-century."
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
But, says Pearlstein, "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," she said.
The Hamdan case has been bouncing around the U.S. justice system for several
years, beginning in 2004, when the Defense Department 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 Nov. 13, 2001. Hamdan was captured
by Afghan forces and handed over to the U.S. military in Afghanistan in late
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 and civilian objects, murder, destruction of property, and terrorism.
Held at the U.S. Naval Base at Guantánamo Bay, Cuba, since early 2002,
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 Aug. 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 the commission.
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 this year, 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 former military judge, and Sen. Carl Levin, a liberal
Democrat from Michigan.
HRF's Pearlstein told IPS the Graham-Levin compromise was "a mistake."
She says that she understands Sen. 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 IPS 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 U.S. citizens."
The High Court's decision will not be made known for several months.
(Inter Press Service)