Guantánamo's day of reckoning in Supreme Court

The US Supreme Court was urged on Mar. 28 to rein in President Bush's use of his powers as a wartime president, challenging his order to dispatch al-Qaida suspects to trial before military tribunals. In arguments that could redefine the balance between presidential power and the laws of war, lawyers for Salim Ahmed Hamdan, an inmate at Guantánamo, told the court that Bush had violated basic military protections with his November 2001 executive order setting up the tribunals. Hamdan, a Yemeni accused of driving a pick-up truck for Osama bin Laden, was captured in Afghanistan in November 2001 and charged with war crimes. The Bush administration claims he conspired with the al-Qaida leader to carry out attacks in the US. He says he was merely working to support his family, and needed the $200-a-month salary. The case challenges the Bush administration's justification for holding people without recourse to US courts or the Geneva convention. Terror suspects brought before the tribunals do not have the right to an attorney of their choice or to see the evidence against them. Even if they are acquitted and freed, the verdict can be reversed by the defense secretary, Donald Rumsfeld. Hamdan's lawyers contended that that makes the tribunals unconstitutional because they allow the president to define the crime, and select the prosecutor and judges who act as jury. "This is a military commission that is literally unburdened by the laws, constitution and treaties of the United States," one lawyer, Neal Katyal, told the court. To date, none of the 500 or so detainees at Guantánamo have appeared before a military tribunal, although 10 have been consigned for trial. Under questioning from justices Antonin Scalia and Samuel Alito, Katyal rejected the administration's argument that Hamdan should wait until after his appearance before a tribunal to challenge the president's definition of the laws of war. "The government has had four years to get their charges together on Hamdan," he said. "We are talking about just a set of core ideas that every country around the world is supposed to dispense when they create wartime trials, and even that minimum standard the government doesn't want to apply here." Lawyers for the Bush administration say the president derives his authority for the executive order from his powers as commander in chief. In addition, they note that Congress recently enacted legislation barring Guantánamo detainees from being heard in the US courts. The chief justice, John Roberts, has withdrawn from the case because he ruled on Hamdan while serving on an appeals court. But Justice Scalia has resisted demands to withdraw from civil rights organizations, members of Congress and a group of retired US generals and admirals. He came under a barrage of criticism after comments at an appearance at the University of Freiburg in Switzerland were reported by Newsweek magazine in March. In his discussions, Justice Scalia reportedly said terror suspects did not deserve the right to a trial, adding that he had a son who had served in the US military in Iraq: "I had a son on that battlefield and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy." Lawyers for the prisoners had been looking forward to the proceedings as a chance to begin pulling down the legal framework claimed by the Bush administration in its conduct of the "war on terror." The case has attracted several prominent supporters, including the former secretary of state, Madeleine Albright. In a speech on Mar. 27, a military lawyer for Hamdan, Navy Lieutenant Commander Charles Swift, said all he wanted was a full trial. "When our citizens are abroad and these things are done, how will we say it was wrong?" he said. But it is not entirely clear that the Supreme Court will emerge with a firm directive when it hands down its decision later this year. The withdrawal of Chief Justice Roberts brings the membership of the court down to eight, deepening the potential for a deadlock. More importantly, the prisoners may have been shortcircuited by a law passed by Congress last December which barred the use of torture, but then added a rider denying Guantánamo detainees the right to have their cases heard in US federal courts. The establishment of military trials at Guantánamo Bay defines the Bush administration's view of the sweeping powers of a US president in wartime. In November 2001, President Bush signed an order setting up military commissions to try suspected members of al-Qaida, saying the terror suspects were not entitled to Geneva convention protection. He said they were not part of a regular army nor US citizens entitled to a US court hearing. No trial has taken place under the commissions, which bear no relation to courts martial. Suspects are not guaranteed a lawyer and do not see all the evidence. Any commission decision can be overturned by defense secretary, Donald Rumsfeld.