Trial and Terror

In a number of cases this year, the Supreme Court will define the reach of presidential power.

Fri Jan. 16, 2004 4:00 AM EST

During the next five months, the Supreme Court will issue a number of rulings that, cumulatively, define the reach of the president's constitutional role in times of war and national emergency.

Among other issues related to presidential discretion, the court will rule on the right of the White House to keep its meetings secret, the legality of imprisoning of foreign fighters at overseas bases, and the indefinite detention of U.S. citizens without charges. In the case with the broadest implications, accepted last Friday, the Supremes will decide whether the government has the power to designate U.S. citizens as "enemy combatants." The term itself is a completely novel category designed to circumvent the Geneva Conventions, which regulate the treatment of prisoners of war. The administration has to this point failed to define the term to anyone's satisfaction but its own, but its significance can be roughly gauged by reference to the disparate treatment accorded U.S, citizen "enemy combatants" Yaser Esam Hamdi and Jose Padilla, both of whom have been denied access to lawyers, and John Walker Lindh, who was tried before a federal court.

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The administration will have to explain to the court its desire to be exempt from the constraints of law in times of war. The Geneva Conventions were set up for precisely that reason: to prevent governments from sidestepping human rights in the heat of battle. "This president has taken an aggressive and extreme view of his power to act unilaterally without congressional or judicial review," said Steven Shapiro, national legal director for the American Civil Liberties Union. "They have imposed maximum secrecy wherever possible, and they have asserted that their actions are unreviewable by the courts. I think they will have a hard time selling that view to the Supreme Court."

Criticism is also rising from within the military. The five lawyers (all military officers) assigned by the Defense Department to defend prisoners held at Guantanamo Bay publicly challenged the trial rules in a brief to the Supreme Court published yesterday.

Reuters reports:

"'The government's argument in this case has no logical stopping point,' the brief stated. 'If there is no right to civilian review, the government is free to conduct sham trials and condemn to death those who do nothing more than pray to Allah.'

… The brief challenges the constitutionality of the structure that the Pentagon created for military tribunals. The five lawyers argued that defendants must have the right to take appeals to U.S. civilian courts rather than being charged, prosecuted, convicted and sentenced, possibly to death, within the military tribunal apparatus.The process calls for defendants to be brought to trial on charges approved by the defence Department, judged by U.S. military officers, with any appeals of convictions or sentences going to a special panel named by defence Secretary Donald Rumsfeld, and then to Rumsfeld and ultimately Bush to decide. Bush "asserts the power to create a legal black hole" in which defendants brought up on charges may not challenge the jurisdiction, competency or even the constitutionality of the military tribunals, the five lawyers said.

… 'This court (the Supreme Court) has never given the president the ability to proclaim himself the superior or sole expositor of the Constitution in matters of justice,' the brief stated."

It concluded that "the constitution cannot countenance an open-ended presidential power, with no civil review whatsoever, to trying anyone the president deems subject to a military tribunal, whose rules and judges have been selected by the prosecuting authority itself." Presumably to forestall criticism of this sort, the U.S. granted its most high-profile prisoner, Saddam Hussein, prisoner of war status last week, almost a month after his capture. The decision is primarily a political gesture, designed to avoid a possible international backlash -- especially from the Arab world, and it shows clearly the government's rather flexible, instrumental approach to the law.

(After conferring POW status on Husssein, the U.S. made it clear that it reserves the right to change his status in the future. Secretary of Defense, Donald Rumsfeld said Wednesday that Saddam's status can be reviewed "at any time, more than once and so as additional information or as decisions are made, that may be either changed or amplified." He also said that it was technically an open question whether Saddam might be tried before a US military tribunal, but he said that was at "the lower end of the probability range.")

In a media breakfast sponsored by the Christian Science Monitor yesterday, FBI chief Robert S. Mueller III let slip that he expects the suspected conspirators in the Sept. 11 attacks to be tried by military tribunals rather than by criminal courts.

The Washington Post writes:

"… Mueller's comments, made in response to a reporter's questions at a news media luncheon in Washington, provide a rare hint of the direction the Bush administration might pursue in its treatment of key suspects in the terrorist plot, who have been held secretly and interrogated since their captures. Mueller's remarks also appeared to bolster previous indications that the government is reluctant to attempt more criminal prosecutions like the one against alleged al Qaeda operative Zacarias Moussaoui, who has bedeviled federal officials with his courtroom antics and has brought the case to a halt with demands to call the alleged conspirators as witnesses."

Pressure against indefinite detentions without charges and military tribunals seems to be mounting from all sides, as the International Committee of the Red Cross (ICRC) is set to renew its criticisms over Guantanamo prisoners when ICRC president Jakob Kellenberger meets with Colin Powell on Thursday and Friday. Eight months after taking the highly unusual step of publicly criticising the “illegality” of holding some 660 people at the base for two years without charge, the ICRC plans to bring the matter back into the spotlight. “We believe that the Guantanamo detainees have somehow been placed beyond the law and the idea that any individual can fall outside any legal framework is not acceptable for us,” an ICRC spokesman said Wednesday.

Meanwhile, Guantanamo inmate Salim Ghiraibi, filed suit against several Bush administration officials on Wednesday, including the president himself. Ghiraibi, says his consitutional rights were violated, and is seeking $1.1 billion in damages.

Also on Wednesday, 175 British legislators filed their own brief to the Supreme Court, arguing that those held at Guantanamo should have access to U.S. civilian courts. "It's not about whether the people there are guilty or not. What's at stake is something far more important ... whether the courts have a right to review what the president is doing," said a lawyer representing the legislators.

The Atlantic thinks it's about time for the Supreme Court to step in and sort out the mess:

"It is none too soon for the Court to address these issues. The administration's handling of the "enemy-combatant" cases has been so lawless as to smack of tyranny.

… The Guantanamo prisoners have been denied even the hearings that are clearly required by the nation's treaty obligations to resolve any doubt as to whether they are unlawful combatants, prisoners of war, or mistakenly detained noncombatants. (There clearly is doubt as to many of these prisoners, notwithstanding President Bush's unsupportable claim to the contrary.) Under the administration's view of the law, no court could intervene even if Bush were to order all 600-plus Guantanamo detainees lined up and shot.

… The administration also seeks to deny meaningful judicial review to Hamdi and Padilla. Its legal position boils down to this: If the president puts the enemy-combatant label on any American citizen (or anyone else), anywhere in the world, the military can hold that person virtually incommunicado, for as long as it chooses, with no access to a lawyer, no right to testify or call witnesses, and a judicial process that amounts to an empty ritual, with courts obliged to ratify whatever factual claims the government makes without hearing any evidence beyond what the government chooses to disclose.

To be sure, the administration does appear to have substantial evidence that Hamdi fought for the Taliban and that Al Qaeda sent Padilla to scout the U.S. for a possible dirty-bomb attack. But the precedent it seeks to establish would effectively bar courts from intervening even to prevent indefinite incarceration of you, me, or, say, a Muslim cleric whose fiery criticisms of U.S. foreign policy annoy officials at the Pentagon."

The upcoming rulings will also shed an interesting light on George Bush's ambiguous relationship with that quintessential American value, freedom. Just as the true measure of our commitment to free speech is seen only when put to the test of views we abhor, so our commitment to individual freedom can be fully measured only when the freedom endangered is that of our supposed enemies.

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