Everyone has the right to recognition everywhere as a person before the law. All are equal before the law and are entitled without any discrimination to equal protection of the law. —Universal Declaration of Human Rights, United Nations General Assembly, December 10, 1948
This is a military commission [at Guantánamo] that is literally unburdened by the laws, Constitution, and treaties of the United States. —Neal Katyal, attorney for Salim Ahmed Hamdan, oral arguments before the Supreme Court, March 28, Hamdan
The Supreme Court is now deliberating on the most important case in the Bush presidency, a case that can set precedents for future presidents during what the defendant, Donald Rumsfeld, admits will be a decades-long war against terrorism. It is so important that Chief Justice John Roberts made available audiotapes of the oral arguments on the same day. The last time I remember that happening was in the case of Bush v.Gore, which resulted in the Bush presidency.
On the surface, Hamdan v.Rumsfeld would appear to be primarily about the 10 prisoners at Guantánamo set to appear before military commissions established by the sole order of the president in Military Order No. 1 of November 13, 2001. As USA Today charged in a lead editorial on the day of the oral arguments, these commissions are “a set-up in which the executive branch alone serves as judge, prosecutor and jury; rules of evidence are one-sided and his lawyers don’t even have the right to know what the [most crucial] evidence is.”
But the much deeper significance of the case is emphasized in Hamdan’s brief to the high court, calling on the justices to stop George W. Bush’s “unprecedented arrogation of power.”
A telling illustration of how the fate of Hamdan can encompass untold numbers, not only of suspected terrorists but also Americans, is the March 25 statement on C-SPAN of Navy Lieutenant Commander Charles Swift, Hamdan’s military lawyer. Swift has long been persistently, publicly critical of the mockery of due process by these military commissions that the president and Donald Rumsfeld invented.
Said Swift: “Mr. Bush and his lawyers have made it clear that he wants a precedent [from this case] that says the president, as commander in chief, can arrest any person in the world and then put that person on trial before a military tribunal (or commission).
“They’ve made it very clear that these powers can be exercised against American citizens right here at home. The president talks about the global war on terror and his lawyers have gone into court frequently saying the United States is a battlefield in this war.”
Indeed, I remember the chill when John Ashcroft said the very same thing before the Senate Judiciary Committee, and his successor Alberto Gonzales, a faithful vassal of the president, is also a true believer in this war. George W. Bush is the law.
The prisoner, whose fate in this court may, at last, markedly bring the president down to constitutional size, was a driver for Osama bin Laden. A citizen of Yemen, he was picked up in Afghanistan in late 2001 by a warlord and turned over to the United States for a bounty. As Stuart Taylor pointed out in the March 25 National Journal:
“He is charged only with a single count of conspiring to murder civilians, based on allegations so nebulous that a real court might throw the case out. The government has not even claimed that Hamdan helped plot any terrorist attacks or committed any specific criminal act.”
Moreover, as his lawyer, Neal Katyal, told the Supreme Court during oral arguments, the laws of war don’t permit the stand-alone offense of conspiracy because it’s too vague, adding:
“The world rejects conspiracy because, if it’s adopted, it allows so many individuals to get swept up within its net. And so, for example, a little old lady in Switzerland who donates money to Al Qaeda and that turns out to be a front for a terrorist act . . . might be swept up within this broad definition of conspiracy. And that’s why international law has so rejected the concept of conspiracy.”
There are many more dimensions to Hamdan v.Rumsfeld, including—as the government maintains—whether the Supreme Court even has the right to hear it. In the Detainee Treatment Act of 2005, a large, clueless majority of Congress passed a provision originated by the anti-constitutionalist South Carolina Republican senator Lindsey Graham and supported by the president that stripped all prisoners at Guantánamo of their most basic rights of habeas corpus, including the right to petition against their confinement and the conditions under which they’re imprisoned. This nullifies Senator John McCain’s amendment prohibiting cruel, inhuman, or degrading treatment, and McCain remains silent on its vanishing.
This Bush dismissal of habeas, which inflamed several justices of the court during oral arguments, will be part of next week’s probe of the president’s insatiable expansion of executive powers, along with his blunt rejection of the international Geneva Conventions on treatment of prisoners.
When I first started covering the Supreme Court—Earl Warren was the chief justice—seasoned reporters warned me not to make any predictions on the outcome of cases based on what appeared to be the justices’ leanings during oral arguments.
Nonetheless, I predict that we the people, and the Constitution, will win, 5-3, thereby significantly slowing George W. Bush’s kneecapping of the separation of powers. Next week, I’ll tell you why. We probably won’t know if I’m right until June. Also next week: a seeming victory at the Supreme Court in the Padilla case that will actually turn out to be a major defeat for Bush.