Supreme Court justices appeared troubled Tuesday by President Bush’s plans to hold war-crimes trials for foreigners held at Guantanamo Bay, Cuba.
And several seemed outraged by the government’s claim that a new law had stripped the high court of authority to hear a case brought by Salim Ahmed Hamdan, a Yemeni who once worked as a driver for Osama bin Laden.
Hamdan has spent nearly four years in the U.S. prison at Guantanamo, and the Supreme Court has been asked to decide if he can be put on trial with fewer legal protections before a type of military tribunal last used in the World War II-era.
The appeal could set the stage for a landmark ruling, and the courtroom atmosphere was tense.
“The use of military commissions to try enemy combatants has been part and parcel of the war power for 200 years,” Solicitor General Paul Clement told justices.
Two years ago the Supreme Court ruled that “a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”
Hamdan’s lawyer, Neal Katyal, told justices that the Bush administration is seeking a “blank check” to do what it wants with foreigners held at Guantanamo Bay.
Secretly shipping al-Qaida suspects
The U.S. prison has been a flash point for international criticism because hundreds of people suspected of ties to al-Qaida and the Taliban — including some teenagers — have been swept up by the U.S. military and secretly shipped there since 2002.
At first, the Bush administration would not let the detainees see lawyers or notify family members where they were, and interrogators used aggressive strategies to extract information.
Only a few weeks ago, in response to a victory in a lawsuit by The Associated Press, did the administration release names of detainees.
Justice Stephen Breyer said that lawyers for Hamdan, who faces a single conspiracy count, argue there is no emergency to justify the special trial.
“If the president can do this, well, then he can set up commissions to go to Toledo, and in Toledo pick up an alien and not have any trial at all except before that special commission,” Breyer said.
Without Chief Justice John Roberts, a conservative Bush nominated last year, the argument seemed lopsided against the government. Roberts supported the Bush administration as a lower court judge and had to withdraw from participating.
Justices Antonin Scalia and Samuel Alito gave hints that they support the administration, both suggesting that the high court should delay a decision until after the trial is over — much like courts do with regular criminal defendants.
Roberts was on a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that signed off on the military trial for Hamdan.
Scalia's controversial remarks
Scalia had been asked by five retired generals to withdraw from participating in the case because of remarks he made in a recent speech in Switzerland about “enemy combatants.” Scalia said foreigners waging war against the United States have no rights under the Constitution.
The outcome of the case will likely turn on moderate Justice Anthony M. Kennedy, who questioned Clement several times about the legal safeguards for the trials. Kennedy said that historically, prisoners have been able to challenge their detentions in court.
It was unclear whether Clement resolved Kennedy’s concerns. Clement brought up the 2001 terrorist attacks and said that presidents going back to George Washington used military trials.
The Bush administration has tried to scuttle the case on grounds that the new law stripped the justices’ authority to consider it. The law passed late last year bars Guantanamo prisoners from filing petitions to fight their detentions, and the administration claims this law retroactively voided hundreds of lawsuits.
Justice David H. Souter said it would be “stupendously significant” for Congress to retroactively close courts to constitutional challenges.
Justice Ruth Bader Ginsburg said “it’s an extraordinary act, I think, to withdraw jurisdiction from this court in a pending case.”
Basic military justice questioned
Hamdan claims the military commissions established by the Pentagon on Bush’s orders are flawed because they violate basic military justice protections.
“This is a military commission that is literally unbounded by the laws, Constitution and treaties of the United States,” Katyal told justices.
Hamdan, who was captured in Afghanistan in November 2001, is charged with conspiracy to commit war crimes, murder and terrorism. He claims he is an innocent father of two young daughters and worked as a driver for bin Laden in Afghanistan only to eke out a living for his family.
Hamdan is among about 490 foreigners currently being held as “enemy combatants” at Guantanamo Bay. Ten of the men, including Hamdan, have been charged with crimes, but justices were told that as many as 75 will be tried.
The case is Hamdan v. Rumsfeld, 05-184.