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| Prepared by: | Eben Kaplan |
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Detainee at the Guantanamo Bay military facility (Photo: AP)
Of all the battles the Bush administration has waged throughout its "war on terrorism," those fought on the legal front are probably among the most vexing. The outcome of the Hamdan v. Rumsfeld case, in which the Supreme Court heard arguments Tuesday (WashPost audio), could lessen the administration's legal burdens, or multiply them. At issue is a lawsuit filed by lawyers for Guantanamo Bay detainee Salim Ahmed Hamdan (Trial Watch) that challenges his designation for trial before a military commission. Hamdan, who served as driver for al-Qaeda leader Osama Bin Laden, is charged with conspiring to commit acts of terrorism. His lawyers contend conspiracy, the same charge leveled against Zacarias Moussaoui, is not a war crime and the case should be tried in civilian court. But the bigger question, as explained by the New York Times, is whether "to police the president's ability to make war or to allow executive authority to go unchecked." Lawyers for both sides faced tough questioning from the Court (LAT). But Justices John Paul Stevens and Anthony Kennedy, who will most likely cast the deciding votes (National Law Journal), seemed more skeptical of the lawyer for the Bush administration.
Before ruling on the case, the justices must determine whether they still have jurisdiction to consider the case (NYT). After the Court's decision in November to hear Hamdan's appeal, Congress passed the Detainee Treatment Act, which denies Guantanamo Bay detainees access to the U.S. legal system. The Court must determine whether this ban applies only to future appeals or if it extends to the approximately 150 cases currently working their way through the lower courts. Meanwhile, proceedings are continuing before the same military commissions whose legality is being challenged (Amnesty).
One member of the Court has made his views on the subject clear (Newsweek). In a March 8 talk at the University of Freiberg in Switzerland, Justice Antonin Scalia told the audience "I'm not about to give [a Guantanamo Bay detainee] who was captured in a war a full jury trial. I mean it's crazy." The comments have prompted some calls for Scalia to recuse himself. The Weekly Standard contends that recusal is not necessary, as Scalia's remarks were "views he already expressed" in earlier dissents. Chief Justice John Roberts has already recused himself, having ruled on the case in a lower court.
As this CFR Background Q&A explains, prosecuting terrorists has been fraught with difficulty since 9/11. The most recent trouble occurred when a lawyer prosecuting Moussaoui was found to have tampered with witnesses (LAT), imperiling the entire case.
The treatment of detainees at the Guantanamo Bay facility has generated most of the legal challenges. A recent report from the UN Commission on Human Rights said detainees are still being tortured, and called for swift trials before a tribunal. U.S. officials say treatment of the detainees is humane. The 517 detainees are profiled in a report from Seton Hall's School of Law.
Essential Documents: Terrorism and the Law | JURIST news archive: Military Tribunals
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