Entry for June 30, 2006

The cartoon is by Steve Sack, the editorial cartoonist for the Minneapolis Star Tribune since 1981.   An archive of his cartoons is available on Cagle’s site.

Justices Roberts and Alito, fans of executive power, don’t yet have enought muscle on the Supreme Court, as Justice Kennedy became the deciding vote in a rebuke of Presiden tBush for the Guantamo military Tribunal.   Dan Frromkin’s summary of news coverage can be found today on his Washington post blog.

 In HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, et al.  (Case Number  05-184) argued March 28, 2006 and decided  June 29.  Hamdan argued that he was entitled to a court-martial convened under the U.S. Code of Military Justice or a civilian trial before a federal judge. 

Bush had tried to take Guantanamo Bay out of the Courts Hands by getting the  Detainee Treatment Act of 2005  (H.R. 2863, Title X)  passes as part of the Defense Department appropriation and signed on December 30,2005.    Yo may remember this law for the “signing statement ” in which Bush undercut McCain’s amendment on torture.

The act also provided that  “no court … shall have jurisdiction to hear or consider … an application for … habeas corpus filed by … an alien detained … at Guantanamo Bay”  except for cases pending on the effective date, as was Hamdam’s case. The administration tried to argue that this exeption did not exist. 

Justice Stevens, writing for the 5-3  majority (Roberts abstaining due to the fact he heard a case while on the court of appeals) said,

The Government’s motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied. … The military commission at issue is not expressly authorized by any congressional Act. … even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions–with the express condition that he and those under his command comply with the law of war. …The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949.  …Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer’s discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan’s commission permit the admission of any evidence that, in the presiding officer’s opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other “protected information,” so long as the presiding officer concludes that the evidence is “probative” and that its admission without the accused’s knowledge would not result in the denial of a full and fair trial. 

 Justice Breyer, with whom Justice Kennedy, Justice Souter, and Justice Ginsburg join, concurring, added,

The dissenters say that today’s decision would “sorely hamper the President’s ability to confront and defeat a new and deadly enemy.” Post, at 29 (opinion of Thomas, J.). They suggest that it undermines our Nation’s ability to “preven[t] future attacks” of the grievous sort that we have already suffered. Post, at 48. That claim leads me to state briefly what I believe the majority sets forth both explicitly and implicitly at greater length. The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a “blank check.” Cf. Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.

Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine–through democratic means–how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

The military issued a press release on its special Gitmo site, saying the ruling would not affect day to day operations.  Tribunals had been suspended June 10 after the suicide of three prisoners.  Of the 450 detained at Guantanimo, only 10  faced commissions on charges of violating the law of war. Charges had been prepared for another four, but they had not yet been arraigned, according to the defense department.

Bush vows to get a law passed in Congress to overturn the decision.



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