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3/27/2006 4:38:00 PM -0500

Security & Terrorism
Hamdan will tackle presidential war power
By PAMELA HESS
UPI Pentagon Correspondent

WASHINGTON, March 27 (UPI) -- The Supreme Court on Tuesday will hear the arguments in a case that could decide once and for all whether the military commission and process set up to try "enemy combatants" captured in the war on terror is constitutionally legal.

Salim Ahmed Hamdan, allegedly a personal driver, bodyguard and weapons runner for Osama bin Laden, was captured in Afganistan and has been charged with conspiracy, attacking civilians, murder, destruction of property and terrorism. He is due to face a military tribunal -- a controversial military trial process created specifically for the detainees with different rules of evidence and access to counsel than in U.S. civilian or military courts.

While Hamdan v. Rumseld is a case about the war on terrorism and Guantanamo, it is also a challenge to the checks and balances built into the U.S. Constitution. It will determine whether the president and Congress have the power to circumvent the U.S. judiciary when it comes to dealing with this newly created class of prisoner, and whether those prisoners have any rights at all under the U.S. Constitution. The Supreme Court will decide whether it has the power to limit presidential powers in war time.

The Bush administration firmly believes the court should not be involved. For added insurance, it stacked the deck against judicial review in its favor by selecting the location of the detainee camp carefully. Building it on Guantanamo Bay Naval Base was an intentional attempt to put it outside the reach of U.S. courts.

Bush also declared at the beginning of the Afghan conflict that all the prisoners taken would be denied prisoner-of-war status under the Geneva Convention and its attendant privileges and the protections.

Among the new authorities claimed by U.S. President George Bush over these "enemy combatants" was the power to hold them indefinitely, without judicial review. A series of Supreme Court decisions have limited those powers somewhat but left unanswered key questions, including how long is too long for the detention of enemy combatants, and how high in the civilian court system a detainee can go to protest his internment and prosecution.

Congress stepped into the breach earlier this year with the passage of the Detainee Treatment Act of 2006. That law not only requires humane treatment for prisoners, it also prohibits enemy combatants from filing habeas corpus challenges to their detention in federal court. Finally, the law establishes the final authority for judicial review of military tribunals at the U.S. Court of Appeals in the District of Columbia, which has already sided with the government in the Hamdan case.

The Hamdan case to be argued to the Supreme Court will examine five central questions. First, it will decide whether the Detainee Treatment Act of 2006 purports to cut the Supreme Court out of the loop on detainee issues. If it does, the Supreme Court will have to decide whether that is constitutional.

Second, while a case decided by the Supreme Court in 2004, Hamdi v. Rumsfeld, determined the president had the right to hold prisoners at Guantanamo, it was silent on whether the president had the right to create a new military court process to prosecute them.

Third, the court will decide whether Hamdan has any rights under the Geneva Convention, and whether the president can designate classes of prisoners as outside those boundaries.

Fourth, even if Hamdan does have Geneva Convention rights, can a U.S. court enforce them?

Finally, assuming the court does have jurisdiction over Guantanamo cases, it will need to decide whether it should wait until a military tribunal goes forward before rendering a decision as to its legality. The government's lawyers argue it must wait and then decide if the tribunal meets the requirements for due process. Hamdan's lawyers say the notion of tribunal -- distinct as it is from the civilian court system and from the military's legal system -- is on its face unconstitutional.

The Hamdan case was heard by the U.S. District Court of Appeals last summer. One of the three judges who denied Hamdan's pleas is now Chief Justice of the Supreme Court John Roberts.

Roberts has recused himself from the case, so Hamdan will be decided by an eight-member court.

Justice Sandra Day O'Connor who wrote the Hamdi opinion last year has retired and been replaced by Justice Samuel Alito. A court watcher said while the court may be tipping conservative, the government's case is not a shoo-in. Hamdan is fundamentally about the power of the judiciary versus the executive in a system of checks and balances.

http://news.findlaw.com/ap/o/51/03-28-2006...151e6bed9d.html

Supreme Court takes up case of Osama bin Laden driver
By GINA HOLLAND Associated Press Writer

(AP) - WASHINGTON-Salim Ahmed Hamdan claims he is an innocent father of two young daughters and worked as a driver for Osama bin Laden only to eke out a living for his family.

The Bush administration says he is a trained terrorist who should be tried for war crimes before a special military commission, the first such trial since the aftermath of World War II.



The case before the U.S. Supreme Court on Tuesday tests the president's powers. Chief Justice John Roberts, who had voted in the case as a lower court judge, will not be involved in the decision.

Hamdan is among about 490 foreigners being held as "enemy combatants" at the U.S. military prison in Guantanamo Bay, Cuba. Ten of the men, including Hamdan, have been charged with crimes.

Justices ruled two years ago that the government could detain enemy combatants but not shut off their access to U.S. courts.

In this follow-up case, justices are considering the government's plans for trials before military officers.

Hamdan, a Yemeni who was captured in Afghanistan in November 2001, is charged with conspiracy to commit war crimes, murder and terrorism.

He denies being a terrorist or a member of al-Qaida. His appeal claims that the trials proposed by the Bush administration are unacceptable, tilted to guarantee convictions.

"I've never asked for more for my client than a full and fair trial," one of Hamdan's lawyers, Navy Lt. Cmdr. Charles D. Swift, told an audience Monday at the Cato Institute, a libertarian think tank. "When our citizens are abroad and these things are done, how will we say it was wrong?"

Hamdan's trial was halted last fall when a federal judge ruled that he could not be tried by a U.S. military commission unless a "competent tribunal" determined first that he was not a prisoner of war under the 1949 Geneva Convention.

Roberts was on a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that said the trial could resume, and Hamdan's attorneys appealed to the Supreme Court.

Because of the conflict, Roberts has removed himself from the case. A second court member, Justice Antonin Scalia, has been criticized for remarks made earlier this month about foreign detainees' rights. Scalia told an overseas audience that the U.S. Constitution does not protect foreigners held at Guantanamo Bay, prompting a call from outside groups that he take himself out of the case.

The court could dodge a major ruling in the case, on grounds that a new law stripped the justices' authority to consider it. The law passed late last year bars Guantanamo prisoners from filing petitions to fight their detentions, and the administration claims this law retroactively voided hundreds of lawsuits.

The case is Hamdan v. Rumsfeld, 05-184.

---

On the Net:

Supreme Court: http://www.supremecourtus.gov/

Military tribunals: http://www.defenselink.mil/news/commissions.html

2006-03-28T06:09:42Z

March 27, 2006
Detainee Case Will Pose Delicate Question for Court
By LINDA GREENHOUSE
WASHINGTON, March 26 — The Supreme Court's announcement four months ago that it would rule on the validity of the military commission by which the Bush administration wants to try Osama bin Laden's former driver, on charges of conspiracy to commit terrorism, appeared to mark a resumption of a struggle for supremacy between the court and the White House.

That struggle initially played out in three cases on terrorism and civil liberties in June 2004. In accepting the new case, as in the previous ones, the justices rejected the administration's argument that the court should simply stay out and let the president conduct his fight against terrorism unconstrained by judicial oversight.

But no one foresaw back in November that the case of the driver, Salim Ahmed Hamdan, to be argued on Tuesday, would present the Supreme Court with an additional and perhaps even greater challenge.

In the face of a measure that Congress passed and President Bush signed into law in late December to strip the federal courts of jurisdiction over cases brought by detainees at the United States naval base at Guantánamo Bay, Cuba, where Mr. Hamdan has been held since 2002, the court must decide whether it retains the right to proceed with this case at all.

For a court that has been highly protective of its own prerogatives, but at the same time notably attentive to the often arcane limits on federal court jurisdiction, the question is one of great delicacy, infused with historical resonance. Not since the immediate aftermath of the Civil War, in a case that arose from the power struggles of the Reconstruction era, has the Supreme Court permitted Congress to divest it of jurisdiction over a case it has already agreed to decide.

In that case, Ex Parte McCardle, the court had already heard four days of argument in an appeal brought by a rabble-rousing Mississippi newspaper editor who had been taken into custody and charged by the military government with fomenting insurrection.

Fearful that a Supreme Court ruling in favor of the editor, William H. McCardle, could result in invalidating military control of the former Confederate states, Congress enacted a law over President Andrew Johnson's veto to deprive the court of jurisdiction. The court then dismissed the appeal, rejecting the argument by McCardle's lawyer that it was permitting Congress to usurp the judicial function.

In the new case, Hamdan v. Rumsfeld, No. 05-184, the Bush administration filed a motion with the court in early January, days after the Detainee Treatment Act was signed into law, urging immediate dismissal of Mr. Hamdan's appeal.

"It is well settled that statutes that remove jurisdiction apply to pending cases and ordinarily should be given immediate effect," the administration, citing the McCardle case, said in the brief accompanying its motion.

More than a month later, on Feb. 21, the court declined to act on the motion, announcing instead that it would take up the jurisdictional question as part of the argument on the merits of the case. It added 30 minutes to Tuesday's argument, originally scheduled for one hour, for that purpose.

The McCardle case has been seen by many modern legal scholars as problematic, a regrettable expression of judicial weakness. Mr. Hamdan's lawyers cite it as well, but for a different proposition. While Congress spoke clearly in the court-stripping amendment at issue in the McCardle case, their brief tells the court, the Detainee Treatment Act is ambiguous on its application to pending, as opposed to future, cases. The court should interpret the act as not applying to the Hamdan case to avoid the "grave constitutional questions" that would otherwise arise, they say.

A group of law professors who filed a brief on this point on Mr. Hamdan's behalf warn the court that to give up jurisdiction would be to yield to "an unconstitutional interference with access to courts and an attack on the fundamental structure of the Constitution."

The argument rests in part on the observation that according to the language of the Detainee Treatment Act, Guantánamo detainees who are tried by a military commission will have only a circumscribed right to a subsequent appeal in federal court, in which they could not raise the basic challenge to the commission's operation that Mr. Hamdan is presenting in his Supreme Court case. So if the justices cannot decide his case, or cases brought by some 150 of the other 500 Guantánamo detainees now pending in the lower courts, fundamental questions about this alternative system of justice will go unresolved.

There may be a separate obstacle in the Supreme Court's way. Only eight justices are participating in the case, raising the prospect of a 4-to-4 tie. Chief Justice John G. Roberts Jr. is recused because he was a member of the three-judge panel of the United States Court of Appeals for the District of Columbia Circuit that upheld the government's position in the Hamdan case last July, four days before Mr. Bush nominated him to the Supreme Court.

A tie vote in the Supreme Court ordinarily simply affirms the lower court decision, without issuing an opinion or setting a precedent. But in this case, there is no lower court opinion on the jurisdictional question, since there was no Detainee Treatment Act when the appeals court ruled last July.

It would require a majority, five of the eight votes, to grant the government's motion to dismiss the case, but the matter might not be as straightforward as that. Even if the government had not filed its motion, the court would still be obliged to assure itself that it has jurisdiction to proceed, in this as in any other case. Whether a tie favors jurisdiction or dismissal appears to be an open question of Supreme Court procedure.

Military commissions are not new; they were first used by Gen. Winfield Scott during the war with Mexico in the 1840's. But there have been none since the World War II era. If the court addresses the merits of the Hamdan case, it must decide whether Mr. Bush's military order of Nov. 13, 2001, establishing military commissions to try noncitizens for "acts of international terrorism," had proper authorization.

The administration argues that there were "multiple authorizations": from the Congressional resolution known as the Authorization for the Use of Military Force, adopted days after the terrorist attacks of Sept. 11, 2001; from the Uniform Code of Military Justice, which refers to military commissions and authorizes the president to prescribe rules for their operation; and from the president's inherent powers as commander in chief.

In addition, the administration argues that the Detainee Treatment Act itself ratified the establishment of military commissions when it circumscribed judicial review of their operations.

Mr. Hamdan's military and civilian lawyers, as well as the dozens of organizations and individuals supporting his appeal as "friends of the court," argue to the contrary that no Congressional enactment or inherent power authorized the president to set up what they call a "jerrybuilt tribunal" that falls short of the procedural protections offered by American military law and required by the Geneva Conventions.

In addition, they argue, conspiracy, with which Mr. Hamdan has been charged, is not a war crime and is therefore not subject to trial by military commission.

The administration argues that the Geneva Conventions do not apply to the conflict with Al Qaeda and that their protections cannot, in any event, be invoked by individual detainees. These assertions have provoked a flood of counterarguments from international law specialists, former senior diplomats and federal judges, and human rights organizations.



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Retired Generals Want Scalia Off Gitmo Case Mon Mar 27, 11:20 PM ET

Supreme Court Justice Antonin Scalia was asked Monday to stay out of a case involving a foreign detainee because of remarks Scalia made about the rights of enemy combatants.

Speaking at the University of Freiberg in Switzerland on March 8, Scalia said foreigners waging war against the United States have no rights under the Constitution.

Justices were hearing arguments Tuesday in the case of Salim Ahmed Hamdan, a former driver for Osama bin Laden. His lawyers argue that President Bush overstepped his authority when he ordered Hamdan and other alleged enemy combatants to face special military trials.

Hamdan's lawyers have not called for Scalia to step aside. Instead, five retired generals who support Hamdan's arguments sent a letter late Monday to the court with the request that Scalia withdraw from participating in the case. They say Scalia appears to have prejudged the case.

The retired generals said Scalia's speech in Switzerland "give rise to the unfortunate appearance that ... the justice had made up his mind about the merits" of Hamdan's arguments.

In the speech, first reported by Newsweek, Scalia repeated his views from 2004 that enemy combatants held at Guantanamo Bay, Cuba, should not have access to U.S. courts and traditional legal rights.

The retired generals said that the justice may have "personal animus" to the Hamdan case because he has a son who served in the military in Iraq.

Justices decide for themselves whether they have conflicts and should stay out of cases.

Two years ago, the Supreme Court ruled that the detainees could use U.S. courts to challenge their detention. Scalia disagreed with that ruling, and in the recent speech repeated his beliefs that enemy combatants have no legal rights.

The Hamdan case will go forward without Chief Justice John Roberts, who had voted in the case as a lower court judge.

The letter came from five retired generals and admirals: Navy Rear Adm. Donald J. Guter; Navy Rear Adm. John D. Hutson; Vice Adm. Lee F. Gunn; Marine Brig. Gen. David M. Brahms; and Army Brig. Gen. James P. Cullen.




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http://news.findlaw.com/hdocs/docs/tribuna...shamdan704.html

U.S. v. Salim Ahmed Hamdan
Military Tribunal Conspiracy Charges

http://writ.news.findlaw.com/dean/20010928.html

Appropriate Justice for Terrorists; Using Military Tribunals Rather than Criminal Courts
John Dean

http://writ.news.findlaw.com/mariner/20020917.html

Indefinite Detention: Using Outdated Precedents to Defend Unjust Policies
Joanne Mariner

http://news.findlaw.com/hdocs/docs/terrori...lord111301.html

President Bush's Military Order
Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism

http://files.findlaw.com/news.findlaw.com/...1003cmbtnts.pdf

American Bar Association
Task Force on Treatment of Enemy Combatants
Criminal Justice Section
Section of Individual Rights and Responsibilities
Senior Lawyers Division

Report to the House of Delegates
Revised Report 109
Approved by the ABA House of Delegates February 10, 2003

Analysis: Hard day for government in Hamdan case
http://www.scotusblog.com/movabletype/arch...sis_hard_d.html
Posted by Lyle Denniston at 01:02 PM

With Justice Antonin Scalia taking part -- and, in fact, providing the only clearcut signs of unstinting support for the federal government's arguments -- the Supreme Court on Tuesday probed deeply into the validity of the war crimes tribunals set up by President Bush, and came away looking decidedly skeptical. From all appearances during the 90-minute argument, the Court may have some difficulty fashioning an opinion, but perhaps not a result: the existing "military commission" scheme may well fail.

The Court spent comparatively little time on the issue of whether it has jurisdiction to proceed to a ruling on the merits in the case of Hamdan v. Rumsfeld (05-184), but Justices Stephen G. Breyer and David H. Souter strenuously -- and repeatedly -- advanced the point that the Court would have to find it has jurisdiction in order to avoid the very difficult constitutional question of Congress' power to abolish all forms of habeas challenge to the treatment of war-on-terrorism detainees. It was a point that seemed likely to draw the support of enough Justices to prevail.

If the Court does proceed to the merits, it appeared that there would be at least three ways that a majority could be formed to find the "military commissions" to be flawed: first, those tribunals would be using procedures that would violate federal laws, the Constitution, or an international treaty; second, a variation of the the first, the "commission" system was not set up properly in the first place, or, third, they can only try crimes that definitely are recognized under the international laws of war and that does not include the most common charge brought so far -- terrorism conspiracy. There was little exploration of an ultimate argument against the "commission" setup: the claim that the President had no power to create them on his own, without specific authorization from Congress.

With only eight Justices participating (Chief Justice John G. Roberts, Jr., is recused), it appeared that Justice Anthony M. Kenney might well emerge as holding the decisive vote. In a variety of ways, Kennedy seemed trouble about the legitmacy of the tribunals as presently arranged. Most of his questions seemed aimed at locating the specific deficiencies that might be found in their functioning. At one point, he suggested openly to the detainees' lawyer, Georgetown law professor Neal Katyal, that the Court might well "think there is merit" in his argument that the tribunals were not "properly constituted." In that event, Kennedy suggested, the Court would not have to get into the complex question of what kind of charges were within the tribunals' authority to try.

There were a number of comments or questions indicating that the detainees may well be able to draw the votes of Justices Breyer, Souter, Ruth Bader Ginsburg and John Paul Stevens. There was no doubt whatsoever that Justice Scalia (whose recusal had been suggested by some amici, troubled over public statements he made about detainees' rights) would line up definitely on the side of the "commissions" in their present form. Justice Samuel A. Alito, Jr., through a few questions, seemed to be sending a message that he was inclined to allow the "commissions" to go forward with trials, leaving any challenges until after convictions, if any, emerged. Justice Clarence Thomas said nothing, but he has been, in the past, the Court's most fervent supporter of presidential wartime powers.

The overall tone of the hearings seemed significantly in favor of the challenge to the new tribunals. Solicitor General Paul D. Clement seemed more challenged than is customary for him; indeed, at times he appeared genuinely relieved at the help Justice Scalia provided for his argument. He rushed to embrace Scalia's points as if they were stronger than his own.

March 29, 2006
Justices Hint That They'll Rule on Challenge Filed by Detainee
By LINDA GREENHOUSE
WASHINGTON, March 28 — As the justices of the Supreme Court took their seats Tuesday morning to hear Osama bin Laden's former driver challenge the Bush administration's plan to try him before a military commission, one question — perhaps the most important one — was how protective the justices would be of their jurisdiction to decide the case.

The answer emerged gradually, but by the end of the tightly packed 90-minute argument, it was fairly clear: highly protective.

At least five justices — Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, David H. Souter and John Paul Stevens — appeared ready to reject the administration's argument that the Detainee Treatment Act, passed and signed into law after the court accepted the case in November, had stripped the court of jurisdiction.

It was less certain by the end of the argument how the court would then go on to resolve the merits of the case, a multipronged attack on the validity of the military commissions themselves and on their procedures. Lawyers for the former driver, a Yemeni named Salim Ahmed Hamdan who is charged with conspiracy, also argue that he cannot properly be tried before any military commission for that crime because conspiracy is not recognized as a war crime.

Solicitor General Paul D. Clement was on the defensive throughout his argument. His stolid refusal to concede that any of the government's positions, on the jurisdictional as well as ultimate questions of the case, might present even theoretical problems provoked the normally soft-spoken Justice Souter into an outburst of anger.

What appeared to trouble Justice Souter most was Mr. Clement's discussion with Justice Stevens about whether Congress's removal of the federal courts' jurisdiction to hear habeas corpus petitions from detainees at the naval base at Guantánamo Bay, Cuba, amounted to "suspending" the writ of habeas corpus.

Suspending habeas corpus is an action, limited by the Constitution to "cases of rebellion or invasion," that Congress has taken only four times in the country's history. Habeas corpus is the means by which prisoners can go to court to challenge the lawfulness of their confinement, and its suspension is historically regarded as a serious, if not drastic, step.

Mr. Clement's position was that Congress had not in fact suspended habeas corpus, but that it might constitutionally have done so given "the exigencies of 9/11." Addressing Justice Stevens, the solicitor general said, "My view would be that if Congress sort of stumbles upon a suspension of the writ, that the preconditions are satisfied, that would still be constitutionally valid."

Justice Souter interrupted. "Isn't there a pretty good argument that suspension of the writ of habeas corpus is just about the most stupendously significant act that the Congress of the United States can take," he asked, "and therefore we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?"

When Mr. Clement began to answer, Justice Souter persisted: "You are leaving us with the position of the United States that the Congress may validly suspend it inadvertently. Is that really your position?"

The solicitor general replied, "I think at least if you're talking about the extension of the writ to enemy combatants held outside the territory of the United States —— "

"Now wait a minute!" Justice Souter interrupted, waving a finger. "The writ is the writ. There are not two writs of habeas corpus, for some cases and for other cases. The rights that may be asserted, the rights that may be vindicated, will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus."

Justice Breyer, in his questioning of Mr. Clement, practically begged the solicitor general to endorse an alternative approach that would allow the court to avoid "the most terribly difficult and important constitutional question of whether Congress can constitutionally deprive this court of jurisdiction in habeas corpus cases."

The alternative at hand was the one offered by Mr. Hamdan's lawyer, Neal Katyal, a law professor at Georgetown University. That was to interpret the Detainee Treatment Act as applying only prospectively, stripping federal courts of hearing future cases brought by the detainees but allowing the Supreme Court to continue with at least this one.

The argument was a textual one, based on a slight change in wording from the measure originally proposed by Senator Lindsey Graham, Republican of South Carolina, to the version the Senate eventually passed after Senator Carl Levin, Democrat of Michigan, and others raised objections to taking the Hamdan case away from the Supreme Court.

Mr. Graham, who filed a brief in this case, and the administration maintain that the change was immaterial. But the justices appeared ready to embrace the ambiguity if it would allow them to retain jurisdiction and proceed with the case.

Only eight justices will vote in the case, Hamdan v. Rumsfeld, No. 05-184. Chief Justice John G. Roberts Jr. is not sitting, because he was a member of the three-judge panel of the federal appeals court here that rejected Mr. Hamdan's challenge to the military commissions in a decision last July.

Of the other members of the court, Justice Antonin Scalia appeared most supportive of the administration. He intervened several times to offer Mr. Clement a helping hand, something the solicitor general rarely needs but accepted gratefully.

For example, Justice Kennedy was questioning Mr. Clement on the government's position that even if the court had jurisdiction, it should abstain from ruling on the validity of the military commission until after Mr. Hamdan's trial.

Justice Kennedy said he found the argument troubling, pointing out that Mr. Hamdan was arguing that because the commissions lacked the procedures required by the Geneva Conventions, they were invalid.

Mr. Clement replied that Mr. Hamdan could raise that argument later, before the military commission itself. He predicted that the argument would fail and said that in any event, there was no reason "why that claim has to be brought at this stage."

Justice Scalia then jumped in to support the solicitor general. "In the normal criminal suit," he said, "even if you claim that the forum is not properly constituted, that claim is not adjudicated immediately."

"Well, of course, that's true," Mr. Clement said.

Justice Scalia went on: "We don't intervene on habeas corpus when somebody says that the panel is improperly constituted. We wait until the proceeding's terminated, normally."

"That's exactly right, Justice Scalia," Mr. Clement said.

Justice Kennedy objected. "Is that true?" he asked. "If a group of people decides they're going to try somebody, we wait until that group of people finishes the trial before the court intervenes to determine the authority of the tribunal?"

"With respect, Justice Kennedy, this isn't 'a group of people,' " Mr. Clement replied. "This is the president invoking an authority that he's exercised in virtually every war that we've had."

Along with Justice Scalia, Justice Samuel A. Alito Jr. also appeared to support the argument that the court should allow the trial to go forward. Justice Clarence Thomas alone asked no questions.

Mr. Clement argued that the detainee law would allow a detainee to argue in federal court, after a conviction by a military commission, that the commission's procedures were illegal or unconstitutional.

Justice Ginsburg then asked him to "straighten me out." She said, "I thought it was the government's position that these enemy combatants do not have any rights under the Constitution and laws of the United States."

"That is true, Justice Ginsburg," the solicitor general answered.

In many respects, the argument marked a resumption of the encounter between the court and the Bush administration two years ago, in cases that led to the court's rejection of the administration's claim to broad authority to proceed without judicial oversight. The administration was once again seeking "fundamentally open-ended authority," the "blank check" the court had rejected then, Mr. Katyal said.



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March 28, 2006
Supreme Court Justices Question Law on Detainee Trials
By LINDA GREENHOUSE
WASHINGTON, March 28 — As the justices of the Supreme Court took their seats today to hear Osama bin Laden's former driver challenge the Bush administration's plan to try him before a military commission, one question — perhaps even the most important one — was how protective the justices would be of their own jurisdiction to decide the case.

The answer emerged gradually, but by the end of the tightly packed 90 minutes, it was fairly clear: highly protective.

At least five justices — John Paul Stevens, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer — appeared ready to reject the administration's argument that the Detainee Treatment Act, passed and signed into law after the court accepted the case in November, had stripped the court of jurisdiction.

It was less certain by the end of the argument how the court would then go on to resolve the merits of the case, a multipronged attack on the validity of the military commissions themselves and on their procedures. Lawyers for the former driver, a Yemeni named Salim Ahmed Hamdan, also argue that the crime of conspiracy with which he has been charged cannot properly be tried before any military commission because it is not recognized as a war crime.

Solicitor General Paul D. Clement was on the defensive throughout his argument. His stolid refusal to concede that any of the government's positions, on the jurisdictional question as well as the ultimate questions, might present even theoretical problems provoked the normally soft-spoken Justice Souter into a mixture of rage and despair.

What appeared to trouble Justice Souter the most was Mr. Clement's assertion, in answer to a question from Justice Stevens, that by removing the federal courts' jurisdiction to hear habeas corpus petitions from detainees at the United States naval base at Guantánamo Bay, Cuba, Congress might be understood to have "suspended" the writ of habeas corpus.

This is an action limited by the Constitution to "cases of rebellion or invasion." Habeas corpus is the age-old means by which prisoners can get into court to challenge the lawfulness of their confinement, and its suspension is historically regarded as a serious, if not drastic, step.

Mr. Clement's position was that Congress had not suspended habeas corpus, but that it might constitutionally have done so given "the exigencies of 9/11." Addressing Justice Stevens, the solicitor general said: "My view would be that if Congress sort of stumbles upon a suspension of the writ, that the preconditions are satisfied, that would still be constitutionally valid."

Justice Souter interrupted. "Isn't there a pretty good argument that suspension of the writ of habeas corpus is just about the most stupendously significant act that the Congress of the United States can take," he asked, "and therefore we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?"

When Mr. Clement began to answer, Justice Souter persisted: "You are leaving us with the position of the United States that the Congress may validly suspend it inadvertently. Is that really your position?"

The solicitor general replied: "I think at least if you're talking about the extension of the writ to enemy combatants held outside the territory of the United States —"

"Now wait a minute!" Justice Souter interrupted, waving a finger. "The writ is the writ. There are not two writs of habeas corpus, for some case and for other cases. The rights that may be asserted, the rights that may be vindicated, will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus."

Justice Breyer, in his questioning of Mr. Clement, practically begged the solicitor general to endorse an alternative approach that would permit the court to avoid "the most terribly difficult and important constitutional question of whether Congress can constitutionally deprive this court of jurisdiction in habeas corpus cases."

The alternative at hand was the one offered by Mr. Hamdan's lawyer, Neal Katyal, a law professor at Georgetown University. That was to interpret the Detainee Treatment Act as applying only prospectively, stripping federal courts of hearing future cases brought by the Guantánamo detainees but permitting at least the Supreme Court to continue with this one.

The argument was a textual one, based on a slight change in wording of the measure that became the Detainee Treatment Act, as originally proposed by Senator Lindsay Graham, Republican of South Carolina, and the version the Senate eventually passed after Senator Carl Levin, a Michigan Democrat, and others raised objections to taking the Hamdan case away from the Supreme Court.

Senator Graham, who filed a brief in this case, and the Bush administration maintain that the change was immaterial. But the justices appeared ready to embrace the ambiguity if it would permit them to retain jurisdiction and proceed with the case.

Only eight justices will vote in the case, Hamdan v. Rumsfeld, No. 05-184. Chief Justice John G. Roberts Jr. is not sitting, because he was a member of the three-judge panel of the federal appeals court here that rejected Mr. Hamdan's challenge to the military commissions in a decision last July.

Of the other members of the court, Justice Antonin Scalia appeared most supportive of the Bush administration. He intervened several times to offer Mr. Clement a helping hand, something the skillful solicitor general rarely needs but this time accepted gratefully.

For example, Justice Kennedy was questioning Mr. Clement on the government's position that even if the court had jurisdiction, it should abstain from ruling on the validity of the military commission until after Mr. Hamdan's trial. Justice Kennedy said he found the argument troubling, pointing out that Mr. Hamdan was challenging a "structural invalidity to the military commission," its lack of compliance with protections guaranteed by the Geneva Conventions.

"The historic office of habeas corpus is to test whether or not you're being tried by a lawful tribunal," Justice Kennedy continued. "And he says, under the Geneva Convention, as you know, that it isn't."

Mr. Clement replied that Mr. Hamdan could raise that argument, which he predicted would fail, before the military commission itself. There was no reason "why that claim has to be brought at this stage in the procedure," he said.

Justice Scalia then intervened, observing that "I thought we established earlier" that "in the normal criminal suit, even if you claim that the forum is not properly constituted, that claim is not adjudicated immediately." Rather, "it's adjudicated at the conclusion of the proceeding," the justice continued.

"Well, of course, that's true," Mr. Clement said.

Justice Scalia went on: "We don't intervene on habeas corpus when somebody says that the panel is improperly constituted. We wait until the proceeding's terminated, normally."

"That's exactly right, Justice Scalia," Mr. Clement said.

Justice Kennedy objected. "Is that true?" he aside. "If a group of people decides they're going to try somebody, we wait until that group of people finishes the trial before the court intervenes to determine the authority of the tribunal?"

"With respect, Justice Kennedy, this isn't 'a group of people,' " Mr. Clement replied. "This is the president invoking an authority that he's exercised in virtually every war that we've had."

Along with Justice Scalia, Justice Samuel A. Alito Jr. also appeared interested in the argument that the court should permit the trial to go forward. Justice Clarence Thomas alone asked no questions during the argument.

Mr. Clement asserted that the Detainee Treatment Act would allow a detainees to argue in federal court, after conviction by a military commission, that the commission's procedures were illegal or unconstitutional.

Justice Ginsburg then asked him to "straighten me out." She said, "I thought it was the government's position that these enemy combatants do not have any rights under the Constitution and laws of the United States."

"That is true, Justice Ginsburg," the solicitor general answered.

Mr. Hamdan's lawyer, Mr. Katyal, appeared to get considerable traction with his argument that the crime of conspiracy, with which Mr. Hamdan and nine other detainees awaiting military commissions have been charged, is not an appropriate crime for trial before a military commission. If a majority agrees, this might provide a narrow way of resolving the case.

In many respects, the argument marked a resumption of the encounter between the court and Bush administration two years ago, in cases that led to the court's rejection of the administration's claim to broad authority to proceed without judicial oversight. The administration was once again seeking "fundamentally open-ended authority," the "blank check" the court had rejected then, Mr. Katyal said.



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March 28, 2006
Supreme Court Questions Military Trials
By THE ASSOCIATED PRESS
Filed at 10:59 p.m. ET

WASHINGTON (AP) -- Supreme Court justices appeared troubled Tuesday by President Bush's plans to hold war-crimes trials for foreigners held at Guantanamo Bay, Cuba.

And several seemed outraged by the government's claim that a new law had stripped the high court of authority to hear a case brought by Salim Ahmed Hamdan, a Yemeni who once worked as a driver for Osama bin Laden.

Hamdan has spent nearly four years in the U.S. prison at Guantanamo, and the Supreme Court has been asked to decide if he can be put on trial with fewer legal protections before a type of military tribunal last used in the World War II-era.

The appeal could set the stage for a landmark ruling, and the courtroom atmosphere was tense.

''The use of military commissions to try enemy combatants has been part and parcel of the war power for 200 years,'' Solicitor General Paul Clement told justices.

Two years ago the Supreme Court ruled that ''a state of war is not a blank check for the president when it comes to the rights of the nation's citizens.''

Hamdan's lawyer, Neal Katyal, told justices that the Bush administration is seeking a ''blank check'' to do what it wants with foreigners held at Guantanamo Bay.

The U.S. prison has been a flash point for international criticism because hundreds of people suspected of ties to al-Qaida and the Taliban -- including some teenagers -- have been swept up by the U.S. military and secretly shipped there since 2002.

At first, the Bush administration would not let the detainees see lawyers or notify family where they were, and interrogators used aggressive strategies to extract information.

Only a few weeks ago, in response to a victory in a lawsuit by The Associated Press, did the administration release names of detainees.

Justice Stephen Breyer said that lawyers for Hamdan, who faces a single conspiracy count, argue there is no emergency to justify the special trial.

''If the president can do this, well then he can set up commissions to go to Toledo, and in Toledo pick up an alien and not have any trial at all except before that special commission,'' Breyer said.

Without Chief Justice John Roberts, a conservative Bush nominated last year, the argument seemed lopsided against the government. Roberts supported the Bush administration as a lower court judge and had to withdraw from participating.

Justices Antonin Scalia and Samuel Alito gave hints that they support the administration, both suggesting that the high court should delay a decision until after the trial is over -- much like courts do with regular criminal defendants.

Roberts was on a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that signed off on the military trial for Hamdan.

Scalia had been asked by five retired generals to withdraw from participating in the case because of remarks he made in a recent speech in Switzerland about ''enemy combatants.'' Scalia said foreigners waging war against the United States have no rights under the Constitution.

The outcome of the case will likely turn on moderate Justice Anthony M. Kennedy, who questioned Clement several times about the legal safeguards for the trials. Kennedy said that historically, prisoners have been able to challenge their detentions in court.

It was unclear whether Clement resolved Kennedy's concerns. Clement brought up the 2001 terrorist attacks and said that presidents going back to George Washington used military trials.

The Bush administration has tried to scuttle the case on grounds that the new law stripped the justices' authority to consider it. The law passed late last year bars Guantanamo prisoners from filing petitions to fight their detentions, and the administration claims this law retroactively voided hundreds of lawsuits.

Justice David H. Souter said it would be ''stupendously significant'' for Congress to retroactively close courts to constitutional challenges.

Justice Ruth Bader Ginsburg said ''it's an extraordinary act, I think, to withdraw jurisdiction from this court in a pending case.''

Hamdan claims the military commissions established by the Pentagon on Bush's orders are flawed because they violate basic military justice protections.

''This is a military commission that is literally unbounded by the laws, Constitution and treaties of the United States,'' Katyal told justices.

Hamdan, who was captured in Afghanistan in November 2001, is charged with conspiracy to commit war crimes, murder and terrorism. He claims he is an innocent father of two young daughters and worked as a driver for bin Laden in Afghanistan only to eke out a living for his family.

Hamdan is among about 490 foreigners currently being held as ''enemy combatants'' at Guantanamo Bay. Ten of the men, including Hamdan, have been charged with crimes, but justices were told that as many as 75 will be tried.

The case is Hamdan v. Rumsfeld, 05-184.

^------

On the Net:

Supreme Court: http://www.supremecourtus.gov/

Military tribunals: http://www.defenselink.mil/news/commissions.html

Audio from today's oral argument is available at: MultimediaFeatures/interactive--reports/wdc/scotus/060328hamdan.mp3.



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Case Tests Power of Judiciary, President

By Charles Lane

A long-awaited test of the judiciary's power during wartime came to the Supreme Court Tuesday, and, contrary to the urgings of the Bush administration, the justices did not seem inclined to duck it.

To view the entire article, go to http://www.washingtonpost.com/wp-dyn/conte...er=emailarticle

http://www.law.com/jsp/article.jsp?id=1143557268898
Military Tribunal Case Comes Before Skeptical Supreme Court
By Tony Mauro
Legal Times
03-29-2006

The Bush administration ran into skepticism from the Supreme Court on Tuesday as justices heard debate over a landmark war powers dispute testing the legal rights of enemy combatants held at Guantanamo Bay, Cuba.

At issue were military tribunals set up by the White House to try suspected terrorists, including Salim Hamdan, said to be the driver for Osama bin Laden, in the wake of the Sept. 11, 2001 attacks. Opponents claim the tribunals are an unlawful exercise of executive branch authority.

Justices seemed especially concerned about a law passed by Congress last year that the administration argues strips the high court of jurisdiction over habeas petitions filed by Guantanamo Bay detainees. The law created a limited appeals process for detainees that, the government says, excludes the Supreme Court -- even in pending cases like Hamdan's, argued Tuesday.

Justice Anthony Kennedy, likely the swing vote in the case Hamdan v. Rumsfeld, offered probing questions for both sides but seemed unwilling to accept that habeas petitions could be foreclosed by passage of the law, known as the Detainee Treatment Act.

"The historical function of habeas is to test the legitimacy" of the process that resulted in a prisoner's detention, Kennedy said, challenging Solicitor General Paul Clement. Justice David Souter also appeared irritated with Clement, suggesting that Congress, in passing the Detainee Treatment Act, had effectively suspended the writ of habeas corpus without saying so explicitly. "The writ is the writ," said Souter, with anger in his voice.

Justice Samuel Alito Jr. seemed more sympathetic toward Clement, suggesting in his questions that he thinks it is premature to rule on Hamdan's case until Hamdan is actually tried under the military commission procedures he is challenging.

Hamdan was captured by bounty hunters in Afghanistan in November 2001 and transferred to Guantánamo in June 2002. Thirteen months later, Hamdan was declared eligible to be tried by a military commission created by an order of President George W. Bush in November 2001. The commissions, which exist separately from courts-martial, operate under rules that allow the defendant to be excluded from trial and impose other limits on protections for defendants. Guilty verdicts and sentences are reviewable only by the president.

Hamdan filed a habeas petition in 2004, challenging the commissions as a violation of the Geneva Conventions and asking instead that he be treated as a prisoner of war and tried by a military court-martial.

Judge James Robertson of the U.S. District Court for the District of Columbia ruled for Hamdan. But a panel of the U.S. Court of Appeals for the D.C. Circuit reversed, ruling that the military commissions were authorized by the Uniform Code of Military Justice and by the congressional authorization of military force that was passed after the Sept. 11 attacks. The panel included then-Judge John Roberts Jr., who, now that he is chief justice, has decided to recuse himself in the case.

After the Supreme Court agreed to review the Hamdan case, the dispute took an unusual turn when Congress passed the Detainee Treatment Act. The Bush administration then filed a motion seeking dismissal of Hamdan's case, arguing that the new law applied to his and other pending cases. But lawyers for Hamdan argued that the law is prospective only. The high court added a half-hour to scheduled oral argument time to deal with the threshold jurisdiction issue raised by the law.

As the unusual 90-minute arguments began, Roberts stood up and left as expected, signaling his recusal. Justice Antonin Scalia also stood up, briefly causing a stir because it appeared he too might be recusing. Retired generals who filed a brief on Hamdan's side had requested Scalia's recusal on Monday because of comments he made in Switzerland on March 8 that seemed to signal his views on the legal rights of detainees.

But Scalia soon sat down and participated fully in the case. At times, Scalia appeared to take over Clement's argument, answering points made by Kennedy, Souter, and Justice Stephen Breyer.

"There were moments when Clement seemed to be a bystander," said Deborah Pearlstein of Human Rights First, which filed briefs in support of Hamdan. "Clement had a really tough day." Pearlstein predicted at least five votes against the government on the jurisdictional issue raised by the Detainee Treatment Act.

If Scalia and Alito line up on the government's side and they are joined only by usual ally Justice Clarence Thomas, that would mean a loss for the administration. Souter, Breyer, and Justice Ruth Bader Ginsburg seemed to be safe votes against the government position, and both Kennedy and Justice John Paul Stevens appeared mostly skeptical of Clement's arguments.

Clement cast the military commission process as nothing new, citing a long history going back to George Washington. "Congress has repeatedly recognized and sanctioned that authority," he said. As is customary for Clement, he spoke with no notes in front of him.

But Clement's invocation of presidential power and congressional approval did not seem to quiet the concerns of justices. Nor did he seem to convince the Court when he argued that the Detainee Treatment Act could validly eliminate Court jurisdiction even for pending cases like Hamdan's. "Just because Congress wasn't clear," Clement said, "doesn't mean the government loses here."

Breyer said accepting Clement's argument would draw the Court into the "horrifically difficult" position of ratifying the elimination of its own jurisdiction.

Hamdan's lead lawyer, Neal Katyal, a professor at Georgetown University Law Center, had planted the seeds of doubt earlier with a forceful presentation that outlined the ways in which the military commissions Bush established in the aftermath of Sept. 11 violated the Geneva Conventions, the laws of war, and the Uniform Code of Military Justice.

The president, Katyal said, was arguing for a parallel system of justice for the detainees "unburdened by laws, treaties, or the Constitution." To ratify the commissions, he added, would be "a blank check for years on end."

The Detainee Treatment Act, Katyal also said, does not amount to an endorsement of Bush's military commissions. "Approval by inference has never been sufficient," he said, in cases involving "the most awesome powers of government."

March 29, 2006
Justices Hint That They'll Rule on Challenge Filed by Detainee
By LINDA GREENHOUSE
WASHINGTON, March 28 — As the justices of the Supreme Court took their seats Tuesday morning to hear Osama bin Laden's former driver challenge the Bush administration's plan to try him before a military commission, one question — perhaps the most important one — was how protective the justices would be of their jurisdiction to decide the case.

The answer emerged gradually, but by the end of the tightly packed 90-minute argument, it was fairly clear: highly protective.

At least five justices — Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, David H. Souter and John Paul Stevens — appeared ready to reject the administration's argument that the Detainee Treatment Act, passed and signed into law after the court accepted the case in November, had stripped the court of jurisdiction.

It was less certain by the end of the argument how the court would then go on to resolve the merits of the case, a multipronged attack on the validity of the military commissions themselves and on their procedures. Lawyers for the former driver, a Yemeni named Salim Ahmed Hamdan who is charged with conspiracy, also argue that he cannot properly be tried before any military commission for that crime because conspiracy is not recognized as a war crime.

Solicitor General Paul D. Clement was on the defensive throughout his argument. His stolid refusal to concede that any of the government's positions, on the jurisdictional as well as ultimate questions of the case, might present even theoretical problems provoked the normally soft-spoken Justice Souter into an outburst of anger.

What appeared to trouble Justice Souter most was Mr. Clement's discussion with Justice Stevens about whether Congress's removal of the federal courts' jurisdiction to hear habeas corpus petitions from detainees at the naval base at Guantánamo Bay, Cuba, amounted to "suspending" the writ of habeas corpus.

Suspending habeas corpus is an action, limited by the Constitution to "cases of rebellion or invasion," that Congress has taken only four times in the country's history. Habeas corpus is the means by which prisoners can go to court to challenge the lawfulness of their confinement, and its suspension is historically regarded as a serious, if not drastic, step.

Mr. Clement's position was that Congress had not in fact suspended habeas corpus, but that it might constitutionally have done so given "the exigencies of 9/11." Addressing Justice Stevens, the solicitor general said, "My view would be that if Congress sort of stumbles upon a suspension of the writ, that the preconditions are satisfied, that would still be constitutionally valid."

Justice Souter interrupted. "Isn't there a pretty good argument that suspension of the writ of habeas corpus is just about the most stupendously significant act that the Congress of the United States can take," he asked, "and therefore we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?"

When Mr. Clement began to answer, Justice Souter persisted: "You are leaving us with the position of the United States that the Congress may validly suspend it inadvertently. Is that really your position?"

The solicitor general replied, "I think at least if you're talking about the extension of the writ to enemy combatants held outside the territory of the United States —— "

"Now wait a minute!" Justice Souter interrupted, waving a finger. "The writ is the writ. There are not two writs of habeas corpus, for some cases and for other cases. The rights that may be asserted, the rights that may be vindicated, will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus."

Justice Breyer, in his questioning of Mr. Clement, practically begged the solicitor general to endorse an alternative approach that would allow the court to avoid "the most terribly difficult and important constitutional question of whether Congress can constitutionally deprive this court of jurisdiction in habeas corpus cases."

The alternative at hand was the one offered by Mr. Hamdan's lawyer, Neal Katyal, a law professor at Georgetown University. That was to interpret the Detainee Treatment Act as applying only prospectively, stripping federal courts of hearing future cases brought by the detainees but allowing the Supreme Court to continue with at least this one.

The argument was a textual one, based on a slight change in wording from the measure originally proposed by Senator Lindsey Graham, Republican of South Carolina, to the version the Senate eventually passed after Senator Carl Levin, Democrat of Michigan, and others raised objections to taking the Hamdan case away from the Supreme Court.

Mr. Graham, who filed a brief in this case, and the administration maintain that the change was immaterial. But the justices appeared ready to embrace the ambiguity if it would allow them to retain jurisdiction and proceed with the case.

Only eight justices will vote in the case, Hamdan v. Rumsfeld, No. 05-184. Chief Justice John G. Roberts Jr. is not sitting, because he was a member of the three-judge panel of the federal appeals court here that rejected Mr. Hamdan's challenge to the military commissions in a decision last July.

Of the other members of the court, Justice Antonin Scalia appeared most supportive of the administration. He intervened several times to offer Mr. Clement a helping hand, something the solicitor general rarely needs but accepted gratefully.

For example, Justice Kennedy was questioning Mr. Clement on the government's position that even if the court had jurisdiction, it should abstain from ruling on the validity of the military commission until after Mr. Hamdan's trial.

Justice Kennedy said he found the argument troubling, pointing out that Mr. Hamdan was arguing that because the commissions lacked the procedures required by the Geneva Conventions, they were invalid. "The historic office of habeas corpus is to test whether or not you're being tried by a lawful tribunal," Justice Kennedy said. "And he says, under the Geneva Convention, as you know, that it isn't."

Mr. Clement replied that Mr. Hamdan could raise that argument later, before the military commission itself. He predicted that the argument would fail and said that in any event, there was no reason "why that claim has to be brought at this stage."

Justice Scalia then jumped in to support the solicitor general. "In the normal criminal suit," he said, "even if you claim that the forum is not properly constituted, that claim is not adjudicated immediately."

Along with Justice Scalia, Justice Samuel A. Alito Jr. also appeared to support the argument that the court should allow the trial to go forward. Justice Clarence Thomas alone asked no questions.

Mr. Clement argued that the detainee law would allow a detainee to argue in federal court, after a conviction by a military commission, that the commission's procedures were illegal or unconstitutional.

Justice Ginsburg then asked him to "straighten me out." She said, "I thought it was the government's position that these enemy combatants do not have any rights under the Constitution and laws of the United States."

"That is true, Justice Ginsburg," the solicitor general answered.

Mr. Hamdan's lawyer, Mr. Katyal, appeared to get traction with his argument that conspiracy, with which Mr. Hamdan and nine other detainees awaiting military commissions have been charged, is not an appropriate crime for a trial before a military commission. If a majority agrees, this might provide a narrow way of resolving the case.

In many respects, the argument marked a resumption of the encounter between the court and the Bush administration two years ago, in cases that led to the court's rejection of the administration's claim to broad authority to proceed without judicial oversight. The administration was once again seeking "fundamentally open-ended authority," the "blank check" the court had rejected then, Mr. Katyal said.



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http://online.wsj.com/article/SB1143515219...dary_stories_hs

Court on Trial
As Justices Weigh
Military Tribunals,
A Guantanamo Tale

Torture in Morocco Is Alleged
By Accused Accomplice
In Old 'Dirty Bomb' Plot
A Constitutional Conundrum
By JESS BRAVIN
March 28, 2006; Page A1

Four years ago, a Muslim convert from Chicago and another from London set out from Karachi, Pakistan, intent on terrorism in America, the U.S. government says. The two were stopped at the Karachi airport for problems with their papers. Then their paths diverged.

The Chicagoan, Jose Padilla, was arrested when he arrived at O'Hare airport, accused of plotting to explode a radioactive "dirty bomb," and jailed without charge as an "enemy combatant." The result is a civil-liberties storm that has twice reached the Supreme Court. It is a flash point in the debate over executive power, individual rights and homeland security that has smoldered since Sept. 11, 2001.


The other Muslim convert wasn't a U.S. citizen. And his path, he asserts in an account provided by one of his lawyers, has led to a Moroccan torture cell, imprisonment at Guantanamo, Cuba, and a proceeding to be held in a secretive military court created by order of President Bush after Sept. 11.

The identity of this second inmate, even his existence, largely escaped notice. The announcement of Mr. Padilla's arrest in 2002 by then-Attorney General John Ashcroft made no reference to a second man. His existence was briefly mentioned two years later at a news conference on the Padilla case, although then-Deputy Attorney General James Comey said this prisoner's name was classified.

But last November, after the Defense Department quietly listed five Guantanamo prisoners newly approved for military trials, the name of the alleged accomplice of Mr. Padilla could be pinpointed. He is Binyam Mohamed, a 27-year-old who was born in Ethiopia, lived for a time in America and moved to London in his teens. His story, which is impossible to verify, is that he was tortured and told by his captors what they wanted him to say.

The profound constitutional issues these murky events raise are now coming to the fore. The Supreme Court today will hear arguments over the validity of the military commissions set up to try prisoners at Guantanamo. Lawyers for the prisoners will argue they are illegal. The government will say the president has inherent power to create such commissions and that traditional laws of war give prisoners accused of war crimes limited rights.

Adding to the constitutional confusion, the justices face administration claims that a law known as the Graham-Levin Amendment, which provides limited legal rights to Guantanamo prisoners, strips the Supreme Court of jurisdiction over the military-commissions case. One of the amendment's authors, Democratic Sen. Carl Levin of Michigan, says the law does no such thing.

Then next week, proceedings in such a commission are to begin against Mr. Mohamed. The proceedings in his case and Mr. Padilla's underscore the contrasts between traditional law and special military trials in addressing the modern scourge of terrorism.

With Mr. Padilla, the administration acknowledges it can't use some evidence because it was collected while the Chicagoan was held without charge and denied the rights to have a lawyer and avoid self-incrimination.

The military-tribunal system doesn't bar such evidence. Advocates say it may be the only way a suspect can be held to account for a plot with alleged al Qaeda ties, because a civilian trial might entitle the defendant to subpoena al Qaeda leaders the U.S. holds abroad -- exposing intelligence sources and methods. But critics say such a military proceeding comes at the cost of a fair trial, and that this cost is too high. A military-commission trial, they warn, risks countenancing evidence extracted by torture.

The commissions are panels of four or more military officers, one a lawyer, and held at Guantanamo. The public can't attend, in contrast to civilian trials, but the Pentagon flies in a handful of reporters to file accounts, unless the presiding officer deems the information too sensitive.


A five-page charge sheet accuses Mr. Mohamed of conspiring, along with Mr. Padilla, with al Qaeda leaders to commit the war crimes of "attacking civilians, attacking civilian objects, murder by an unprivileged belligerent, destruction of property by an unprivileged belligerent and terrorism." The al Qaeda leaders it cites include Osama bin Laden, Ayman al-Zawahri, Khalid Sheikh Mohammad, Abu Zubayda and the late Muhammad Atef.

The sheet says that around May 2001, after a conversion to Islam, Mr. Mohamed went to an al Qaeda training camp in Afghanistan, attended a lecture by Mr. bin Laden and was sent to a 30-day "city warfare course" in Kabul. It says he trained on AK-47 assault rifles but not pistols "due to lack of ammunition." It says he went to an explosives class in Kabul also attended by Richard Reid, the so-called shoe bomber.

Then, the charge sheet says, Mr. Mohamed went to Pakistan with Abu Zubayda, a senior al Qaeda figure later captured there. Along the way, it says, Mr. Mohamed met Mr. Padilla, and in Lahore they "reviewed instructions on a computer...on how to make an improvised 'dirty bomb.' " However, the sheet says, Abu Zubayda considered a dirty bomb unfeasible, so they weighed alternatives, "such as blowing up gas tankers and spraying people with cyanide in nightclubs."

The sheet says Khalid Sheikh Mohammad -- the alleged Sept. 11 mastermind, now also in custody -- explained in Karachi that their mission would involve targeting gas stations and natural-gas-heated apartment buildings, using the gas to cause explosions. It says in April 2002 Messrs. Mohamed and Padilla were given $6,000 and $10,000, respectively, to go to the U.S. and execute the plot.

Mr. Padilla has told interrogators the two were feted the night before their departure by al Qaeda leaders including Khalid Sheikh Mohammad and Ramzi Binalshibh, according to Mr. Comey at the 2004 news conference. "That is," Mr. Comey said, they were "hosted at a farewell dinner by the mastermind of Sept. 11 and the coordinator of those attacks." (Both are now in custody.) Because of the conditions under which Mr. Padilla was being held, such a statement by him couldn't be used against him in federal court, but could at a military commission.

The two didn't get far. Passport control stopped them at the Karachi airport and held them overnight.

Mr. Padilla, under U.S. surveillance, was allowed to proceed to Chicago, where Federal Bureau of Investigation agents arrested him as a material witness in a criminal probe. A month later, just before a deadline to justify his detention, the U.S. transferred him, at President Bush's order, to a military prison.

Last November, as the Supreme Court weighed a challenge to his military detention, Attorney General Alberto Gonzales announced plans to return Mr. Padilla to civilian custody and prosecute him for other crimes. Instead of a dirty-bomb plot, he now is under indictment for having supported a terrorist organization during the 1990s, among other charges. These charges, the U.S. says, are based on evidence it obtained lawfully. He has pleaded not guilty.

Mr. Mohamed, meanwhile, returned to the Karachi airport a week later with a forged passport, the Pentagon's charges say, attempting to fly to London. He was arrested again. The charge sheet ends there. The Pentagon declines to elaborate about "allegations that may become the subject of litigation in Mr. Mohamed's military commission."

His attorneys filed a brief supporting today's Supreme Court challenge to the validity of the military commissions, which concerns another Guantanamo inmate. The brief asserts that Mr. Mohamed "was rendered to Morocco by United States personnel...where he underwent unspeakable torture."

Besides this brief, Mr. Mohamed's version emerges in two other places: an interview with his brother, a U.S. citizen who asked not to be named for fear of reprisal for his relationship to an accused terrorist; and an account written by one of Mr. Mohamed's attorneys, Clive Stafford Smith, which the attorney says reflects what Mr. Mohamed told him during meetings at the Guantanamo naval base. The Wall Street Journal reviewed this 26-page account but had no way to authenticate it as Mr. Mohamed's own words.

Mr. Mohamed was born in Ethiopia, says his brother, and reared for a time in Nairobi, Kenya, where their father was an engineer for Ethiopian Airlines. Although of Muslim background, the family was secular, said the brother, adding that Mr. Mohamed attended a Catholic school. With Ethiopia in turmoil, the family in the early 1990s moved to the U.S., where Mr. Mohamed's brother and two sisters received asylum. Young Binyam knew nothing of the Quran, says his brother, but he "memorized 'Police Academy' " and was always reciting dialogue from the 1984 Steve Guttenberg comedy. "It was annoying."

Their father returned to Ethiopia and Binyam stayed in the U.S., the brother says. But "my sister and I didn't want to take the responsibility of raising a 14-year-old kid," so their father placed Binyam in the care of family friends in Britain. He later moved to a London YMCA. This brother says he last saw Mr. Mohamed in 1998 but the family spoke to him weekly until July 2001, when he stopped answering his telephone.

The brother says he knew nothing of Binyam's interest in Islam or of his fate until May 2002, when two FBI agents arrived, showed a photo of Mr. Padilla and said Mr. Mohamed had been seen with him. The brother says he finally learned Binyam's whereabouts in January 2005 after the International Red Cross said he was a prisoner at Guantanamo.

According to Mr. Stafford Smith, Mr. Mohamed, after studying kickboxing and computer programming, found his Islamic faith in 2000. He was having a rough time in life because of a drug problem, the lawyer says in an interview, "and he converted because it seemed like a sanctuary." The attorney says Mr. Mohamed worked as a janitor for a London mosque and then journeyed to Afghanistan. Besides getting away from the streets, "he also wanted to see the Taliban with his own eyes, to decide whether it was a 'good Islamic country or not.' "

Mr. Stafford Smith is a Briton who was educated in the U.S. and spent 25 years here opposing capital punishment, winning honors from Queen Elizabeth II. He founded an international advocacy group called Reprieve for prisoners facing the death penalty. His name was passed around by British inmates of Guantanamo seeking a sympathetic lawyer, he says, and in January 2005 he got a postcard from Mr. Mohamed requesting his representation, sent via the International Red Cross.

He says Mr. Mohamed "dabbled with the idea of going to Chechnya" to join Islamic rebels fighting Russian rule but denies any tie to a terrorist plot against the U.S. -- or knowing Mr. Padilla.

Mr. Stafford Smith ridicules the suggestion that his client, who he says spoke no Arabic when he got to Afghanistan, and Mr. Padilla, who is not alleged to belong to al Qaeda, were feted by its leadership. "The idea of a conspiracy that involves two very minor people...and every major figure in al Qaeda except bin Laden himself seems risible," Mr. Stafford Smith wrote in a defense memorandum.

The attorney quotes Mr. Mohamed as saying he had "never met anybody like Khalid Sheikh Mohammad." But the lawyer also says he hasn't pressed his client to say whether he encountered any of the numerous al Qaeda figures the charge sheet says he conspired with.

An attorney for Mr. Padilla declined to say whether his client admits knowing Mr. Mohamed. The Padilla attorney, Andrew Patel, said he is weighing whether to call Mr. Mohamed as a witness in Mr. Padilla's trial set for September in federal criminal court in Miami.

In what Mr. Stafford Smith says is Mr. Mohamed's account, the prisoner says his misleading of Karachi airport authorities about his identity led to 14 weeks' detention in Pakistan and questioning by British and U.S. agents. In July 2002, the account says, U.S. agents flew him to Morocco. "It was when I got to Morocco that they said that some big people in al Qaeda were talking about me. They told me that the U.S. had a story they wanted from me, and it was their job to get it. They talked about Jose Padilla and they said I was going to testify against him and big people," the account reads.

The account says that in Morocco, questions were posed by Arabs and a self-described Canadian. The account says he was shackled in painful positions and punched by guards -- and then, weeks into his detention, came harsher treatment: "They took the scalpel to my right chest. It was only a small cut. Maybe an inch....Then they cut my left chest. This time I didn't want to scream because I knew it was coming."

The account continues: "One of them took my penis in his hand and began to make cuts. He did it once, and they stood still for maybe a minute, watching my reaction. One of them said it would be better just to cut it off, as I could only breed terrorists.

"I could not take any more of this torture, and I eventually repeated what was read out to me," the account continues. "They told me to say that I had been with bin Laden five or six times," that he himself had recommended targets, and that he had known about 25 terrorist leaders. "They told me I must plead guilty. I'd have to say I was an al Qaeda operations man, an ideas man."

After his confession, the account says, "brainwashing" began. "I remember they played Meat Loaf and Aerosmith over and over. I hated that," the account says. "When I became a Muslim, I had tried to get away from this. I'd canceled all the music out of my head and now they were forcing it back."

Morocco's Embassy in Washington didn't respond to requests for comment.

In January 2004, the account says, Mr. Mohamed was flown to Afghanistan and held by the U.S. for months in a place called the "prison of darkness." It says he was chained to the floor, kept in a lightless cell for 23 hours a day and subjected to "horrible ghost laughter and Halloween sounds" or Eminem's "Slim Shady," at blasting volume.

Eventually, according to the account, U.S. soldiers said, " 'This is the story that Washington wants.' It was about a dirty bomb. I was meant to steal the parts and build it with Padilla in New York. I did not even know what a dirty bomb was." Mr. Mohamed was taken to Guantanamo in September 2004, the account says, and told he must stay until he agreed to testify against others. Mr. Mohamed is to be judged by a panel of seven military officers whose names are secret but for the presiding officer and sole lawyer, Marine Col. Ralph Kohlmann.

U.S. citizens have a right to attend their trials, confront witnesses and compel defense witnesses to testify. Guantanamo defendants, by contrast, can be barred from proceedings and denied the right to compel testimony by witnesses if the commission finds this necessary to protect national security.

The military commission has discretion to consider any evidence it deems of "probative value to a reasonable person." The Pentagon acknowledges this could include statements taken through torture. It said last week it is considering rule changes to limit such evidence.

There's an indication Col. Kohlmann has considered the question of how to treat evidence possibly received this way. In November, at his child's high school in Durham, N.C., he led a student discussion titled "Torture, Terrorism and National Security." An organizer said it wasn't recorded or transcribed. The Pentagon wouldn't make Col. Kohlmann available for an interview.

Write to Jess Bravin at jess.bravin@wsj.com

DON'T DISCARD RULES IN THE WAR ON TERROR - WILLIAM S. SHEPARD (BALTIMORE SUN, MARCH 28): The Supreme Court will hear oral arguments today in Hamdan v. Rumsfeld, a case with broad implications for the war on terror. Salim Ahmed Hamdan, a prisoner at Guantanamo Bay, Cuba, has sued the federal government, alleging that the military trial he faces there is unlawful. When the Supreme Court decides the case, it is to be hoped it will say that the Geneva Conventions and their prohibitions against inhumane treatment must apply. Such a decision would be a more compelling argument in the Middle East and elsewhere for democratic values than all of the spin doctoring the undersecretary of state for public diplomacy, Karen Hughes, can muster.
http://www.baltimoresun.com/news/opinion/o...,0,868308.story

From the Los Angeles Times
Court Appears Wary of Terror War Tribunals

Most justices seem open to a prisoner's claims that new presidential powers go too far.
By David G. Savage
Times Staff Writer

March 29, 2006

WASHINGTON — The Supreme Court gave a skeptical hearing Tuesday to the Bush administration's claim that the president has the power on his own to create and control special military tribunals to punish foreigners he deems to be war criminals.

Five of the eight justices hearing the case commented that the laws of war and the Geneva Convention set basic rules of fairness for trying alleged war criminals.

And they questioned whether the president was free to ignore those basic rules — as well as the rules of American military law.

The justices' skepticism suggested a second setback might be looming for the administration's legal strategy in the fight against terrorism. Two years ago, the high court said war — even a new kind of war on terrorism — did not give the president a "blank check" to make new legal rules for capturing and holding prisoners.

The case heard Tuesday concerned the rules for punishing these prisoners. But the tenor of the argument suggested the court would again reject President Bush's claim of unilateral power to try and punish alleged Al Qaeda conspirators.

"If you defer to this system and give the president the ability to launch all these military tribunals … you will be countenancing a huge expansion of military jurisdiction," Georgetown University law professor Neal K. Katyal told the justices.

Justice Stephen G. Breyer appeared to agree. "If the president can do this, well then he can set up a [military court] to go to Toledo and … pick up an alien and not have any trial at all," he said.

Katyal was representing Salim Ahmed Hamdan, a native of Yemen and a former driver for Osama bin Laden. Hamdan was picked up in Afghanistan in 2001, and has been held since then at the military jail for terrorism suspects at Guantanamo Bay, Cuba.

The administration, led by Defense Secretary Donald H. Rumsfeld, has charged him with being a war criminal for having conspired with Al Qaeda to kill Americans.

But the case of Hamdan vs. Rumsfeld is not a test of whether Bin Laden's driver is guilty as charged. Rather, it is a test of the president's power to act as lawmaker, prosecutor, judge and jury in the war on terrorism.

Hamdan's lawyer says he has no objection to having his client tried under the rules of courts-martial used by the U.S. military. Most lawyers say these trials are fair because the prosecutors and judges have some independence from the command structure and because the defendant can confront and challenge the evidence used against him.

The Geneva Convention says foreign prisoners of war can be tried as war criminals, but they should be tried by reputable courts with established rules of fairness.

But in November 2001, President Bush issued an order saying his administration would not follow the Geneva Convention. Instead, his order said, terrorists and captured Al Qaeda operatives would be tried in special military tribunals.

The president reserved for himself the power to define which offenses would be crimes, who would prosecute the cases, what rules would be followed and who would serve as judge and jury. And after the trial, those convicted could appeal their cases to the president.

This system is "literally unburdened by the laws, Constitution and treaties of the United States," Katyal said.

U.S. Solicitor General Paul D. Clement, representing the administration, said that ever since Gen. George Washington had a British spy tried and hanged, the "commander in chief … has exercised the authority to try enemy combatants by military commissions."

The case is complicated by the fact that in December, Congress passed a law saying the courts had no jurisdiction to hear claims from Guantanamo prisoners. Clement said Hamdan's appeal should be dismissed.

New Justice Samuel A. Alito Jr. agreed that the high court should not rule on the issue now. "In a criminal litigation, review after a final decision is the general rule," he said. If Hamdan is convicted, he could file an appeal in the federal courts, Alito added.

But most of the other justices disputed the idea that Congress could bar the Supreme Court — or any federal judge — from hearing a writ of habeas corpus from a person held in U.S. custody.

In old English law, people imprisoned by the king could file a writ of habeas corpus — a request to come before a judge. The U.S. Constitution adopted the idea and says "the writ of habeas corpus shall not be suspended [except] in cases of rebellion or invasion."

President Lincoln suspended habeas corpus during the Civil War.

Hamdan filed a writ of habeas corpus to challenge the military trials, but Clement cited the action by Congress taking away the court's authority to hear it.

"I have trouble with that argument," Justice Anthony M. Kennedy said. "The historic [writ] of habeas is to test whether or not you are being tried by a lawful tribunal."

Justice Antonin Scalia disagreed. "We don't intervene on habeas corpus…. We wait until the proceeding's terminated."

Kennedy disputed that. "If a group of people decides they're going to try somebody, we wait until that group of people finishes the trial?" he asked.

Justices David H. Souter, Ruth Bader Ginsburg and John Paul Stevens joined Breyer and Kennedy in clashing with the government's lawyer.

Chief Justice John G. Roberts Jr. was missing from the argument because he had ruled on the case while he was a U.S. appeals court judge.

If the court were to split 4-4, the government would win. But it sounded as though five of the justices were inclined to deal the administration a defeat.