NEWS: Top U.S. Court Being Asked to Curb Bush's Powers

The U.S. Supreme court is due to make a ruling on a case that brought up the question of what powers the President of the United States should have in a time of war. The case was brought before the Supreme Court by an al-Qaeda member from Yemen Salim Ahmed Hamdan who is currently being held at Guantanamo Bay and his U.S. Navy lawyer Lt.-Cmdr Charles Swift. Hamdan's trail was originally to be heard by a US Military Commission but his lawyer is arguing that the court is not legitimate because President George W. Bush created it on his own without the participation of Congress. His lawyer is asking the court to ban such commissions and curtail the powers of the President. The decision in the case is expected in the summer.



I believe this decision from the Supreme Court is one that should be paid attention to but is getting very little. This case will pretty much determine if the US is justified in what it is doing. I personally believe that what the US is doing with these people is unjust and unfair. They went into another country picked people up that were known associates and threw them in a torturous jail without any fair trial or legitimate evidence. Don’t get me wrong I do not support terrorism but I do support a fair and just legal system where you are innocent until proven guilty, one of the rights the US holds dear but selfishly refuses to grant to other people from foreign countries. Guilty by association is not evidence.


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[edit on 28-3-2006 by Riwka]

mod edit to title

[edit on 28-3-2006 by DontTreadOnMe]

This is an important and controversial issue...
and it IMO is one of the most dictator like actions of our leader. (the rest are gray areas)

He isn't allowed to construct courts... anymore than the Supreme Court can pick the president (DOH!)

WTF has happened to America?
the War on Terror has happened... and we were unprepared as a democracy to handle it...
In the abscence of a plan, we just borrowed from the Former masters at control... the USSR...

Scalito said yesterday, that we have to have non civil trials of prisoners of this war on Terror, but he was at a loss to justify these "special courts".
He kept saying Military courts ought to be the key, and so they probably shall be...
so we know how a key conservative voice speaks... so lets see what he does.

I think the Supreme Court will uphold previous rulings in this matter. I believe that the President's response to the special qualities of this war, which are unique in modern history, I believe, though I will gladly entertain other views, is both rational and lawful.

There is no doubt that the president has the power to order a military tribunal/commission that was established in the mid 1800's. What sets this case apart from others is they want to try him on conspiracy to commit a crime, that is the legal issue his attorney or attorneys are arguing. Their contention is as I understand it, since he did not commit any crime they cannot put him on trial.

Edit to add

I just listened to part of the arguments and I was right their arguement is that conspiracy does not fall under the UCMJ.

[edit on 3/28/2006 by shots]

WOW. I missed this one. Great find.


From your source:

The Bush administration argues that in a time of war, the president has the virtual and unencumbered right to wage that war as he sees fit, without Congress or the courts getting in his way.

And last summer, to the delight of Defence Secretary Donald Rumsfeld, a Federal Appeals Court ruling on the Hamdan case agreed with that argument. ..."It vindicates the president's determination to treat suspected terrorists humanely but not to grant them the protections of the Geneva conventions as a matter of right," Rumsfeld said after that decision came down.

...The U.S. Supreme Court's ruling in the Hamdan case, expected this summer, will be one of the most important of the Bush presidency. It will either confirm the president's expansive view of his own authority, or trim it back and rein it in.

Important case indeed.

[edit on 28-3-2006 by soficrow]

One question that I would like to see come up as a side-effect of this would be: since there has never been a formal declaration of war (at least to my knowledge, please correct me if I'm wrong), how can the president have any 'wartime powers'?

I'm no legal expert, but it seems to me that without a declaration of war, any question of 'wartime powers' is moot.

But he is, technically, the head of our military system. So in a way he does have control over it, and should be held responsible by the Supreme Court. Whether or not he knew what the consequences would be, we would need a lie detector... Hm, it's possible he just doesn't have the intellegence to see what would happen/has happened.
stupid America, I hate living here.

I think Bush declared a temporary "state of national emergency" ...about 5 years ago.

Emergency powers are fairly absolute - but they are supposed to be temporary, not permanent.

Jaryn: I'm no legal expert, but it seems to me that without a declaration of war, any question of 'wartime powers' is moot.

These may answer your question:

Authorization for Use of Military Force
September 18, 2001

Public Law 107-40 [S. J. RES. 23]


107th CONGRESS

news.findlaw.com...

AUTHORIZATION FOR USE OF MILITARY
FORCE AGAINST IRAQ RESOLUTION OF 2002

www.c-span.org...

[edit on 2006/3/28 by GradyPhilpott]

I know we have had this basic discussion before--I just can't find the thread to it right now. As I recall, the people being held in various places don't seem to fit into any pre-defined prisoner category. If the ones being held--that were taken from inside Afganistan for example--were taken as prisoners of war then they should have been let loose once that war was over. If, on the other hand, they were imprisoned as common criminals, then they should have been remanded to the custody of the Afghani authorities once such authorities were in place. If I'm not mistaken, the consensus was that they were in a special category/classification that did not fit any of the previous one that have come up over the years.

At any rate, Congress, or the High Court, need to at least define what category these prisoners fit into so everyone will know how they should be handled. Right now, I don't see any alternative to handle them as any thing other than prisoners of war. This gives the military courts jurisdiction over them and pretty much conforms to what is now being done. However, if that is how they are to be classified, then somewhere, somehow, terms need to be spelled out defining a beginning and an end to this war--otherwise, the poor buggars could be held forever, without recourse to the normal pathways of justice.

Jaryn
One question that I would like to see come up as a side-effect of this would be: since there has never been a formal declaration of war (at least to my knowledge, please correct me if I'm wrong), how can the president have any 'wartime powers'?

I agree with you that a declaration of war is necessary for the president in order to excercise war time powers. Unfortunately congress in both houses and on both sides of the aisle have failed to carry out the constitutional duties of their office on this matter, most likely because they did/do not want to appear soft on terrorism. It would be nice of the american public would clean house in the 2006 elections by voting out every incumbent, but Im not hopeful.

An old political science professor of mine once told me, "Nobody ever lost an election by underestimating the intelligence of the american people". Over the years his proven to be accurate, again and again and again.

As for SCOTUS, imho they should reign in presidential powers on this case.
.

Here is an interesting discussion of the legal and historical considerations regarding "illegal combatants."

www.ccc.nps.navy.mil...


An explanation of the status of "unlawful combatants' by David B. Rivkin Jr.
and Lee A. Casey.

/hsr84


[edit on 2006/3/28 by GradyPhilpott]

Thank you GradyPhilpott. The first link you provided was very enlightening to me as it addressed the precise problem I have been seeing with the prisoners/detainees we are holding. The authors are absolutely correct in their contention that at some point we will have to address the legal status of these people. When, I'm not sure, but as time drags on the pressure to do so intensifies.

In the interim; however, I don't see the merits of the defense attorney's arguments, although I do think he is attacking in the right direction.


[edit on 28-3-2006 by Astronomer68]

This is an excellent account of what went on today:

Analysis: Hard day for government in Hamdan case

...it appeared that there would be at least three ways that a majority could be formed to find the "military commissions" to be flawed: first, those tribunals would be using procedures that would violate federal laws, the Constitution, or an international treaty; second, a variation of the the first, the "commission" system was not set up properly in the first place, or, third, they can only try crimes that definitely are recognized under the international laws of war and that does not include the most common charge brought so far -- terrorism conspiracy. There was little exploration of an ultimate argument against the "commission" setup: the claim that the President had no power to create them on his own, without specific authorization from Congress.

With only eight Justices participating (Chief Justice John G. Roberts, Jr., is recused), it appeared that Justice Anthony M. Kenney might well emerge as holding the decisive vote. In a variety of ways, Kennedy seemed trouble about the legitmacy of the tribunals as presently arranged. Most of his questions seemed aimed at locating the specific deficiencies that might be found in their functioning. At one point, he suggested openly to the detainees' lawyer, Georgetown law professor Neal Katyal, that the Court might well "think there is merit" in his argument that the tribunals were not "properly constituted." In that event, Kennedy suggested, the Court would not have to get into the complex question of what kind of charges were within the tribunals' authority to try.

There were a number of comments or questions indicating that the detainees may well be able to draw the votes of Justices Breyer, Souter, Ruth Bader Ginsburg and John Paul Stevens. There was no doubt whatsoever that Justice Scalia (whose recusal had been suggested by some amici, troubled over public statements he made about detainees' rights) would line up definitely on the side of the "commissions" in their present form. Justice Samuel A. Alito, Jr., through a few questions, seemed to be sending a message that he was inclined to allow the "commissions" to go forward with trials, leaving any challenges until after convictions, if any, emerged. Justice Clarence Thomas said nothing, but he has been, in the past, the Court's most fervent supporter of presidential wartime powers.

More...

This is perhaps the most telling comment:

The overall tone of the hearings seemed significantly in favor of the challenge to the new tribunals.

EDIT: And here is the tale straight from the horse's mouth, Hamdan's lawyer...

From the Court's Docket: Hamdan v. Rumsfeld

...

Hamdan has had the cards stacked against him every step of the way from Afghanistan to the Supreme Court: from his capture by the Northern Alliance, who sold him for a bounty to the Americans, to the President’s executive order subjecting him to trial by before a military commission with rules defined by the Executive alone. From the Defense Department’s shifting policies and rules about Guantanamo to the commission’s decision to kick him out of part of his own criminal trial. And if that weren’t enough, we’ve recently seen some members of Congress try to pull his case off of the Supreme Court’s docket. It has been a difficult road, to be sure.

Yet, today I, as his lawyer, will walk into the nation’s highest court and plead his case to a panel of impartial, independent jurists. This is why my parents came to America—because we don’t sacrifice justice simply because we are scared. We allow a Yemeni with a fourth-grade education accused of conspiracy to plead his case to the highest court against the most powerful individual on earth. This is why we are the greatest nation the world has ever known.

Second, a word about the role of international law in the case. It has been memorably said that the problem with using foreign law is that it’s like looking out over a crowd to pick out your friends. I share this general skepticism of foreign law, and that has led some to wonder how I could be arguing that Hamdan is protected by supposedly vague international treaties like the Geneva Conventions. The odd thing about the Hamdan case is that the prosecution, not the defendant, is invoking international law first. Military commissions can only try violations of international law, so the typical claim that international law has no place in our legal system can not apply without undoing the prosecution itself.

...

More...

Read on to more fully understand the actual legal positions of the two sides... It isn't what you'd assume...



[edit on 28-3-2006 by loam]

Good post Loam, it is nice to be kept up to date on what is actually happening with this case.

I just had to extract this comment from your edit loam--it says more about America, and in fewer words, than I could ever have done.
"Yet, today I, as his lawyer, will walk into the nation’s highest court and plead his case to a panel of impartial, independent jurists. This is why my parents came to America—because we don’t sacrifice justice simply because we are scared. We allow a Yemeni with a fourth-grade education accused of conspiracy to plead his case to the highest court against the most powerful individual on earth. This is why we are the greatest nation the world has ever known." (Extracted comment from the defense lawyer for accused terrorist Hamdan)

[edit on 28-3-2006 by Astronomer68]

Originally posted by loam
This is an excellent account of what went on today:


This is perhaps the most telling comment:

The overall tone of the hearings seemed significantly in favor of the challenge to the new tribunals.

With all due respect I think one would be better off listening to the actual tape of the hearings. What you posted and I mean no disrespect; is just one persons opinion of what happened.

I listened to the hearing (Not all of it) just portions and arguments on both sides were very good and my guess is this could very well end up as draw meaning a 4 to 4 vote, so no one will win because they have no previous precedent to go by since Roberts had to recuse himself. The no win situation came from a commentator so I will not say for certain he is right, I want to make that clear. But certainly is a possibility just listening to the judges and the questions they asked told me they were split.

Actually at one point in the hearing I believe it was Scalia (sp?) that asked something along the lines "Well what would happen if they amended the complaint to aiding and abetting?" The answer from the attorney was well if that is was the case yes then it would fall under the UCMJ. At that point in the hearing it appeared he went on the defense more or less, because that alone shot his argument down.

There was also an indication at one point where some of the justices contended this should go back to the appellate court.


The only real argument they have is that they have been charged on conspiracy charges which attorneys claim does not fall under the UCMJ, therefore they cannot hold him or try him.

Now who wants to bet if the charges will be amended or not? You betcha I am willing to bet it is already in the works before the decision comes down.

As copies of the audio recording have not yet been released (I didn't get to hear it live), I can only show you what the prevailing view is from those who heard it in its entirety:

Most of the eight US Supreme Court justices hearing oral arguments Tuesday in Hamdan v. Rumsfeld appeared skeptical of the Bush administration's contention that special military tribunals established by the President not adhering to either standard US military procedure or the Geneva Convention can be used to prosecute suspected terrorists as war criminals.

Jurist.

And...

A Bush administration lawyer ran into sharp and skeptical questions from the Supreme Court today in defending the president's order to use specially arranged military tribunals for suspected war criminals.

Most of the justices said they were inclined to rule against the administration's claim that the president — on his own — can set up military trials that do not follow the rules of either the U.S. military or the Geneva Convention.

Only Justices Antonin Scalia and Samuel A. Alito Jr. spoke up in defense of the government's argument.

La Times.

And...

The Supreme Court sharply questioned plans for military trials for foreigners held at Guantanamo Bay, in a historic argument Tuesday over President Bush's wartime powers.

Several justices seemed deeply concerned that the government had gone too far in its plans to hold a special trial for Osama bin Laden's former driver on a conspiracy charge.

Some were downright indignant over the Bush administration's claim that a new federal law bars the high court from ruling in the case of Salim Ahmed Hamdan.

Forbes.

I think you're being optimistic, shots. I'll say more when I hear it myself.

You should note that the first issue in the case is a jurisdictional one.


[edit on 28-3-2006 by loam]

There is one thing that I have learned from my experience with the courts. You cannot predict with routine accuracy what a judge or jury will find based on anything that happens during a trial or a hearing.

Those who observe the court proceedings can report what is said and done and for experienced observers there may indeed be indicators one way or the other, but my experience and my observations of courtroom proceedings are that no one breathes as sigh of relief until the verdict is read. I have never worked with an attorney who has not be both pleasantly surprised and disappointed by court rulings.

I, therefore, suggest that everyone just wait until the court rules.

[edit on 2006/3/28 by GradyPhilpott]

Originally posted by GradyPhilpott
...You cannot predict with routine accuracy what a judge or jury will find based on anything that happens during a trial or a hearing...

I, therefore, suggest that everyone just wait until the court rules.

I agree... In fact, the court has been known to aggressively attack one line of reasoning, only to agree with it in opinion later.

Wishful thinking on the part of Bush's opponents here. Looks like a desperate attempt to bring him down, the new one for this week. I'm guessing there will be a new one next week too.

As has been pointed out here, precidence matters in these kinds of cases and I would doubt that the court would intervene in the realm of elected officials since it does not have the mandate to do so that I am aware of.