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<a href="http://www.counterpunch.org/cohn06302006.html" eudora="autourl">
http://www.counterpunch.org/cohn06302006.html<br><br>
</a></font><font face="Times New Roman, Times" size=4>June 30,
2006<br><br>
</font><h1><font face="Times New Roman, Times" size=5 color="#990000"><b>
A Supreme Rebuke<br><br>
<br>
</i></font>Bush Loses Guantanamo
Case</b></h1><font face="Times New Roman, Times" size=5>By MARJORIE
COHN<br><br>
</font><font face="Verdana" size=6 color="#990000">I</font>
<font face="Verdana" size=2>n the most significant rebuff to George W.
Bush's assertion of executive power since he declared his "war on
terror," the Supreme Court called a halt to Bush's kangaroo courts
at Guantánamo Bay.<br><br>
Justice Stevens wrote for the 5-3 majority, "We conclude that the
military commission convened to try Hamdan lacks power to proceed because
its structure and procedures violate both the [Uniform Code of Military
Justice] and the Geneva Conventions." Justices Ginsburg, Breyer,
Souter and Kennedy joined Stevens in the majority opinion.<br><br>
One of Hamdan's lawyers, Georgetown University Law School Professor Neal
Kayta, called the ruling a "rebuke" to a system of "fake
courts."<br><br>
Shafiq Rasul, speaking for himself and two other former Guantánamo
detainees, said, "We are ecstatic at today's outcome. This is
another step in our collective efforts to see that those we left behind
are treated fairly under international law."<br><br>
Michael Ratner, president of the Center for Constitutional Rights, which
represents nearly half of the Guantánamo detainees, was
"thrilled" by the Court's decision. "What this says to the
administration is that you can no longer decide arbitrarily what you want
to do with people. It upheld the rule of law in this country and
determined that the executive has gone beyond the constitution and
international law."<br><br>
In November 2001, Bush set up military commissions to try Guantánamo
prisoners charged with crimes. Of the more than 700 men and boys who have
been housed there in the last four and half years, only 10 have been
charged with criminal offenses.<br><br>
Bush charged Salim Ahmed Hamdan, Osama bin Laden's driver, with one count
of conspiracy "to commit . . . offenses triable by military
commission." Before yesterday's landmark ruling on his petition for
a writ of habeas corpus, Hamdan was awaiting trial in a military
commission.<br><br>
The Bush administration filed a motion to dismiss Hamdan's challenge to
the military commission after Congress passed the Detainee Treatment Act
on December 30, 2005. In the DTA, Congress purported to strip US federal
courts of jurisdiction to hear habeas corpus petitions filed by
Guantánamo detainees.<br><br>
But the Court held Congress did not intend to deny federal court
jurisdiction to detainees like Hamdan, whose cases were already pending
on the date the DTA was enacted.<br><br>
Although this is a narrow ruling, leaving open the door for Bush to argue
that Congress effectively denied other detainees the right to file future
challenges to their confinement, the Court clearly stated it was
reserving any decision on whether Congress could constitutionally deny a
prisoner the right to federal habeas corpus jurisdiction.<br><br>
Unlike the Uniform Code of Military Justice, Bush's military commissions
would allow a defendant to be convicted by evidence he never sees in a
proceeding he cannot attend with evidence that does not meet federal
evidentiary standards. This includes statements obtained by coercion. The
majority held Bush failed to show it would be impracticable to furnish
defendants in military commissions safeguards commensurate with those
guaranteed by the UCMJ.<br><br>
One of the most critical parts of the Court's decision was its ruling
that Common Article 3 to the Geneva Conventions applies to al Qaeda.
Common Article 3 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."<br><br>
Article 3 Common requires that prisoners be treated humanely; it forbids
outrages on personal dignity, in particular humiliating and degrading
treatment. The Pentagon had planned to eliminate any reference to Common
Article 3's protections from its interrogation regulations. But the
Supreme Court has now affirmed that<i> all</i> prisoners, not just
prisoners of war, must be treated humanely. This is bound to put a severe
crimp in the Bush administration's cruel and torturous
interrogations.<br><br>
Arguing out of both sides of his mouth, Bush had maintained the Geneva
Conventions didn't apply to al Qaeda because they weren't prisoners of
war. But Bush also asserted that Common Article 3, which applies to
conflicts "not of an international character," doesn't apply to
al Qaeda. The Court shot down that argument, holding that "the term
'not of an international character' is used in contradistinction to a
conflict between nations.'" Bush can't have it both ways.<br><br>
Justice Kennedy, in a separate concurrence joined by Justices Souter,
Breyer and Ginsburg, noted that Common Article 3 "is part of a
treaty the United States has ratified and thus accepted as binding
law." The target of recent conservative attacks for his willingness
to cite treaties, Justice Kennedy was spot on here. For while
treaties are international law, they are also part of US law under the
Supremacy Clause of our Constitution.<br><br>
Significantly, even Justices Scalia and Alito, who filed separate
dissents from the Court's decision, did not dispute the notion that
Common Article 3 applies to al Qaeda, a proposition the Bush
administration has strongly denied.<br><br>
The Court also held that Congress's Authorization for the Use of Military
Force, passed shortly after the September 11, 2001 attacks, did not
expand Bush's authority to convene military commissions that do not
comport with UCMJ safeguards. This is an important precedent that
opponents of Bush's warrantless surveillance of Americans can cite in
opposition to administration claims that the AUMF authorizes the spying
program.<br><br>
Four justices - Stevens, Souter, Breyer and Ginsburg - notably cited
Protocol I of the Geneva Conventions, Article 75. It incorporates trial
protections, including the right to be tried in one's presence. Although
the US has not ratified Protocol I, they wrote, "it appears that the
Government 'regard[s] the provisions of Article 75 as an articulation of
safeguards to which all persons in the hands of an enemy are
entitled.'" Article 75, the four justices said, is
"indisputably part of the customary international
law."<br><br>
The dissent by Justice Thomas shows that he continues to be the Bush
administration's toady. In<i> Hamdi v. Rumsfeld</i> two years
ago, he said, "This detention falls squarely within the Federal
Government's war powers, and we lack the expertise and capacity to
second-guess that decision." Yesterday, Justice Thomas wrote in
his<i> Hamdan</i> dissent that the Court's opinion "openly flouts
our well-established duty to respect the Executive's judgment in matters
of military operations and foreign affairs."<br><br>
In contrast, Justice Breyer's concurrence harked back to the majority
opinion in<i> Hamdi,</i> saying, "The [<i>Hamdan</i>] Court's
conclusion ultimately rests upon a single ground: Congress has not issued
the Executive a 'blank check.'"<br><br>
Most importantly, the Supreme Court reiterated that, "Nobody in
enemy hands can be outside the law." Now Bush can no longer deny the
Guantánamo detainees basic due process. This decision is a significant
victory for justice and the rule of law.<br><br>
<b>Marjorie Cohn</b> is a professor at Thomas Jefferson School of Law,
president-elect of the National Lawyers Guild, and the US representative
to the executive committee of the American Association of
Jurists.<br><br>
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