Torture Supreme Court & The UN

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  (from the washington post website)


High Court Rejects Detainee Tribunals
5 to 3 Ruling Curbs President's Claim Of Wartime Power

By Charles Lane
Post Staff Writer
Friday, June 30, 2006; A01

The Supreme Court yesterday struck down the military commissions President Bush established to try suspected members of al-Qaeda, emphatically rejecting a signature Bush anti-terrorism measure and the broad assertion of executive power upon which the president had based it.

Brushing aside administration pleas not to second-guess the commander in chief during wartime, a five-justice majority ruled that the commissions, which were outlined by Bush in a military order on Nov. 13, 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions.

As a result, no military commission can try Salim Ahmed Hamdan, the former aide to Osama bin Laden whose case was before the justices, or anyone else, unless the president does one of two things he has resisted doing for more than four years: operate the commissions by the rules of regular military courts-martial, or ask Congress for specific permission to proceed differently.

"[I]n undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction," Justice John Paul Stevens wrote in the majority opinion.

While the decision addressed only military commissions, legal analysts said its skeptical view of presidential power could be applied to other areas such as warrantless wiretapping, and that its invocation of the Geneva Conventions could pave the way for new legal claims by detainees held at the military facility in Guantanamo Bay, Cuba.

The ruling shifts the spotlight to Congress, whose members face reelection this fall and who have largely avoided the military commission issue since the Sept. 11, 2001, attacks because of its political uncertainties. The invitation for the president to turn to Congress was extended in a short concurring opinion by one of the justices in the majority, Stephen G. Breyer, who made it clear that the concerns of critics had penetrated deeply at the court.

"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," Breyer wrote.

"The Constitution places its faith in those democratic means," Breyer concluded. "Our Court today simply does the same."

Joining Stevens and Breyer in the majority were Justices Anthony M. Kennedy, David H. Souter and Ruth Bader Ginsburg.

Perhaps the only silver lining for the administration was that the decision did not affect the government's authority to keep terrorism suspects at Guantanamo Bay or elsewhere, a point Bush emphasized in his reaction. "We take the findings seriously," he said. "The American people need to know that this ruling, as I understand it, won't cause killers to be put out on the street."

But the court's action was clearly a setback for the White House. At the high court, its approach to the war on terrorism has suffered the broadest in a series of defeats, and the administration has been sent back to the drawing board in dealing with hundreds of suspected members of the Taliban and al-Qaeda -- at a time when international pressure is mounting to shut down Guantanamo Bay.

This is not the situation the president envisioned when he unveiled the military commissions as a tough-minded alternative to the civilian trials that the Clinton administration had used against terrorists. As first outlined in 2001, the commissions did not give defendants a presumption of innocence or guarantee a public trial.

Yet the swift and certain punishment that supporters of the commissions expected has not materialized. The commissions quickly became mired in questions about what many saw as their lack of due process for defendants, and about the unilateral way in which Bush had created them.

Though the Defense Department has modified commission procedures in favor of the accused, military and civilian lawyers continue to object that defendants have no right to be present for the entire trial or to see all of the evidence against them. While 14 of the 490 terrorism suspects at Guantanamo Bay have been designated for trial, not a single case has been decided.

Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. dissented. Chief Justice John G. Roberts Jr. did not participate because he served on the three-judge appeals court panel whose ruling upholding the commissions was under review.

Scalia and Thomas read their dissents from the bench, a demonstration of their strong disapproval of the court's decision. Scalia argued that the court should have stayed out of the case because of a law Congress passed late last year circumscribing the appeal rights of military commission defendants.

Thomas said the majority "openly flouts our well-established duty to respect the Executive's judgment in matters of military operations and foreign affairs."

But center stage at yesterday's dramatic session belonged to Stevens, the 86-year-old World War II veteran who served as a Navy officer and a Supreme Court law clerk during the late 1940s, the last time the United States made extensive use of military commissions.

Though Stevens, the most liberal member of the court, has sometimes employed sharp rhetoric against the Bush administration in other cases, he read a summary of his 73-page opinion yesterday in a somber, seemingly deliberately low-key manner. The written version seemed designed to pick apart the Bush case for the commissions rather than denounce it.

Stevens ruled that the court had jurisdiction, rejecting the administration's argument that it had been ousted from the case by the Detainee Treatment Act of 2005. That law, even though it blocked habeas corpus petitions by Guantanamo Bay prisoners and shifted all appeals regarding military tribunals to the U.S. Court of Appeals for the District of Columbia Circuit, did not clearly state that it was meant to apply retroactively to Hamdan and others, Stevens wrote.

At the heart of Stevens's reasoning was the observation that an existing statute, the Uniform Code of Military Justice (UCMJ), already prescribes broad rules for military commissions, saying that their procedures must track those of courts-martial unless that is impractical.

But the administration's commissions, Stevens noted, do not meet this standard because they deprive defendants of protections that are basic to the courts-martial. The administration had cited special dangers involved in fighting terrorism, but Stevens concluded that "nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case."

Additionally, Common Article 3 of the Geneva Conventions, a provision that guarantees "minimum" protections for detainees, applies to the war against al-Qaeda, and is thus a part of the "law of war," Stevens wrote.

This means that terrorism suspects benefit from Common Article 3's prohibition against trials by anything other than "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Because they were not properly authorized by Congress and do not match court-martial rules, Bush's military commissions do not qualify, Stevens wrote.

The court's opinion embraced a role for international humanitarian law that the administration has repeatedly rejected.

"The court seems to be saying that the war on terrorism at least in some regards is governed by Common Article 3," said Michael J. Glennon, a professor of international law at Tufts University. "That's an important step."

Legal analysts said that the court's opinion could lead to a challenge to the National Security Agency's domestic surveillance program, because wiretapping is already covered by a federal statute, the Foreign Intelligence Surveillance Act, just as military commissions were, in the court's view, covered by the UCMJ.

"The same reasoning would seem to apply to the NSA case, because the argument that the authorization to use military force enables them to ignore FISA goes down the drain," said Joseph P. Onek, senior counsel of the Constitution Project, a Washington-based civil liberties organization that opposed the commissions.


(copied from the acndian press 6-30-06)


Top U.S. court: Bush


overstepped authority


with Guantanamo war


crimes trials

WASHINGTON (CP) - The U.S. Supreme Court ruled Thursday that President George W. Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees, saying in a strong rebuke that the trials were illegal under U.S. and international law.

Bush said there might still be a way to work with Congress to sanction military tribunals for detainees, and the American people should know the ruling "won't cause killers to be put out on the street."

The court declared 5-3 that the trials for 10 foreign terror suspects violate U.S. military law and the Geneva conventions. Among them is 19-year-old Canadian Omar Khadr, captured in Afghanistan in 2002 during the U.S.-led invasion.

The ruling raises major questions about the legal status of the approximately 450 men still being held at the U.S. military prison in Cuba and exactly how, when and where the administration might pursue the charges against them.

It seems likely to further fuel international criticism of the U.S. administration, including many U.S. allies, for its handling of the terror war detainees at Guantanamo in Cuba, Abu Ghraib in Iraq and elsewhere.

White House counsellor Dan Bartlett said the administration's task now is mostly technical - trying to determine how to design military tribunals that would pass muster under the decision. Republican senators said they would co-operate.

Justice John Paul Stevens, writing for the court, said the Bush administration lacked the authority to take the "extraordinary measure" of scheduling special military trials for inmates, in which defendants have fewer legal protections than in civilian U.S. courts.

The decision blocked a trial for Salim Ahmed Hamdan, a Yemeni who worked as a bodyguard and driver for Osama bin Laden. Hamdan, 36, has spent four years in the U.S. prison in Cuba. He faces a single count of conspiring to commit terrorism against U.S. citizens from 1996 to November 2001.

It was a broad defeat for the U.S. government, which two years ago suffered a similar loss when the high court held the president lacked authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers.

Thursday's vote was split 5-3, with moderate Justice Anthony Kennedy joining the court's liberal members in most of the ruling against the administration. Chief Justice John Roberts, named to the lead the court last September by Bush, was sidelined in the case because as an appeals court judge he had backed the government over Hamdan.

Thursday's ruling, the final one of the court's term, overturned that decision. Justices began a three-month break after releasing the ruling. Six different justices wrote 176 pages.

The administration had hinted in recent weeks that it was prepared for the court to set back its plans for trying Guantanamo detainees.

The president also has told reporters, "I'd like to close Guantanamo." But he added, "I also recognize that we're holding some people that are darn dangerous."

The court's ruling says nothing about whether the prison should be shut down.

"Trial by military commission raises separation-of-powers concerns of the highest order," Kennedy wrote in his opinion. "Concentration of power (in the executive branch) puts personal liberty in peril of arbitrary action by officials, an incursion the constitution's three-part system is designed to avoid."

The prison at Guantanamo Bay, erected in the months after the Sept. 11, 2001, terror attacks on the United States, has been a flash point for international criticism. Hundreds of people suspected of ties to al-Qaida and the Taliban - including some teenagers - had been swept up by the U.S. military and secretly shipped there since 2002.

One of the teens is Khadr, 15 when he was captured in Afghanistan after allegedly killing a U.S. army medic during a firefight in which Khadr himself was wounded. He faces murder and other charges by virtue of having been declared an illegal combatant by the Americans.

He had been scheduled to appear at a military tribunal June 26 in Guantanamo Bay, but the hearing was postponed while officials awaited the court ruling.

"Beautiful. I think it's the right decision," said Khadr's military lawyer, Lt.-Col. Colby Vokey. His Canadian lawyer Dennis Edney, of Edmonton, says the defence will seek Khadr's extradition to Canada.

Three Guantanamo detainees committed suicide there this month, using sheets and clothing to hang themselves. The deaths brought new scrutiny and criticism of the prison, along with fresh calls for its closing.

Justice Clarence Thomas wrote a strongly worded dissent from Thursday's ruling and took the unusual step of reading part of it from the bench. He said the court's decision would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."

The court's willingness, Thomas wrote in the dissent, "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous."

Justices Antonin Scalia and Samuel Alito also dissented.

In his own opinion, Justice Stephen Breyer said: "Congress has not issued the executive a 'blank cheque'."

"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," Breyer wrote.

Justices also rejected the Bush administration's claim that the case should be thrown out on grounds that a new law stripped the court's authority to consider it, and that Hamdan should not have been allowed to appeal until after the conclusion of his trial.

The court said the law passed last year to limit lawsuits by Guantanamo detainees does not apply to pending cases like the one brought by Hamdan.

"It's certainly a nail in the coffin for the idea that the president can set up these trials," said Barbara Olshansky, legal director of the Center for Constitutional Rights, which represents about 300 Guantanamo detainees.

Hamdan has claimed he is innocent and worked as a driver for bin Laden in Afghanistan only to eke out a living for his family.


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