Bin Laden's driver, Salim Ahmed Hamdan, was captured in Afghanistan in November, 2001. He is
challenging what Bush perceives to be his royal due:
The Supreme Court agreed Monday to take a case involving Osama bin Laden's driver that presents a major test to the Bush administration's military tribunals for foreign terror suspects.
The court will decide whether Salim Ahmed Hamdan, a Yemeni who was captured in Afghanistan, can be tried for war crimes before military officers in Guantánamo Bay, Cuba. He has been charged with conspiracy to commit attacks on civilians, murder and terrorism.
Whatever the decision of the court, it will be earth shaking. The SCOTUS (with new Chief Justice Roberts) will decide if George Bush can rule by decree.
Executive Order (Rule by Decree)
(e) To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.
(f) Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.
(g) Having fully considered the magnitude of the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States, and the probability that such acts will occur, I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling govern-ment interest, and that issuance of this order is necessary to meet the emergency.
John Roberts
This tribunal isn't like the courts-martial that are used for prisoners of war. It goes by rules that cut back the rights of defendants even more drastically than the tribunal that the United States has helped establish in Iraq to try Saddam Hussein has. Hamdan has no right to be present at his trial. Unsworn statements, rather than live testimony, can be presented as evidence against him. The presumption of innocence can be taken away from him at any time; so can his right not to testify to avoid self-incrimination.
If Hamdan is convicted, he can be sentenced to death.
The opinion Roberts joined, written by Judge A. Raymond Randolph for a unanimous panel (though the third judge, Stephen Williams, expressed a reservation in a concurrence), swallows all of that and then some. The opinion says that Congress authorized the president to set up whatever military tribunal he deems appropriate when it authorized him to use "all necessary and appropriate force" to fight terrorism in response to 9/11. While the president has claimed the authority only to try foreign suspects before the tribunals, there's nothing in the Hamdan opinion that stops him from extending their reach to any other suspected terrorist, American citizens included. This amounts to a free hand--and one Bush is not shy about extending. The administration has already devised its own tribunals to review its claims that the Guantanamo detainees are all enemy combatants who are not entitled to the international protections accorded to prisoners of war. As of February, 558 hearings had resulted in freedom for only three prisoners. The Supreme Court has yet to rule on the legality of these tribunals--a question that Roberts may now help decide.
For the benefit of the freepi among us, yes, I'm worried about the way Iraqis, Afghanis, really any person that has been seized by our federal government. They have set things up so that they can by decree claim that any group of people are a threat to national security and then try them with no regard to rules of law. They have installed on the SCOTUS a sympathic ally who already ruled in their favor on this issue. Who thinks that Alito will be any less conciliatory to the king's wishes?
The IHT analyst predicts the following result:
Last July, Judge John Roberts was on the District of Columbia Circuit and ruled against Hamdan. Now he is the chief justice of the United States. Assuming that he does not take part in the Hamdan case when it is argued before the Supreme Court, there is the possibility of a 4-to-4 ruling, which would uphold the Circuit Court's ruling without setting a precedent for future cases.
I'd say that's a very hopeful prediction. If they were going to hear this case and not make clear decision, then why would they take it?
Neal Katyal distills the importance of this decision:
But Neal Katyal, a Georgetown University law professor who has represented Hamdan, expressed dismay and declared that the circuit court ruling "places absolute trust in the president, unchecked by the Constitution, statutes of Congress and longstanding treaties ratified by the Senate of the United States."
Someone tell me that this Circuit Court ruling will be overturned.