Flash: The Whole Supreme Court Story Of The Bushite's Latest Loss!
The cases of Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196 were in play in the recent Supreme Court Decusion to reverse it's previous ruling.
Bushites in Terror and Panic
In a surprise reversal, the U.S. Supreme Court, without comment Friday June 30 2007 stated that it would review a Guantanamo Bay detainee's challenge of the White House's war-on-terror powers.
The court's action, granting a writ of certiorari, came in a collated case carrying the names of both a Kuwaiti and an Algerian, neither of which has ever been charged with a crime, but nonetheless, imprisoned at Guantanamo Bay, U.S. Navy base in Cuba for five years.
The 5-3 ruling places officials under pressure to create a new policy for prosecuting at least ten of those labeled as, "enemy combatants" which are awaiting trial. The ruling, however, does not address the right to detain suspects by the government.
The case was a great test of President Bush's stretching of the authority of his position as commander in chief during war, to Supreme, Infallible, Emperor, some folks with working brain cells believe. Bush has aggressively asserted his power to capture, detain and prosecute suspected terrorists in the wake of the attacks of 9/11, 2001.
The High Court now in Rejecting Bush administration arguments, reversed course and promised Friday to review Guantanamo Bay' detainees right to use civilian courts to challenge their seeming infinite confinement, while I propose that only the God of Heaven has, or should have power over infinity, not the god in the White House, better known as the feeble minded, the avaristic, malevolent and cowardly sycophants of the Fascist regimes.
The administration's argument that the Military Commissions Act of 2006 strips courts of their jurisdiction to hear detainee cases is ludicrous.
This means that both Bush administration and detainee lawyers probably face court as early as October for the third time to resolve if and how a King, err, I mean a president, can assume godhood and dungeonize, in medieval evil, an "enemy combatant" and even subject such prisoners to military trial rather than civil of criminal trial in the American court system.
Justice John Paul Stevens, writing for the enlightened majority, stated, "The military commission at issue is not expressly authorized by any congressional act." "The tribunals must be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law."
"In undertaking to try Hamdan and subject him to criminal punishment, the executive [Writer's insertion in italics-Meaning, in this case, sadly enough, the President, or as Bush prefers, the title His Eminence, or God.] is bound to comply with the rule of law that prevails in this jurisdiction." Stevens continued.
Justice Stephen Breyer concurred writing, "Congress has not issued the executive a 'blank check. " "Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here." Breyer added, however, "nothing prevents the president from returning to Congress to seek the authority he believes necessary."
Ruth Bader Ginsburg, David Souter and Anthony Kennedy, joined Stevens and Breyer.
Judicial consensus came closer in an 11th-hour question to the court in the shape of a congressional statute, which stripped U.S. courts of judicial oversight in the prosecutions of Guantanamo Bay detainees. The government's argument that the statute should apply retroactively to cases pending when it became law last December was not greeted enthusiastically by Justices, three of which appeared outraged at said statute, which the government used to strip detainees of Habeas Corpus Bill of Rights, protection.
David Souter was incredulous at the supposition, and glared, "Whether or not the writ of habeas corpus was suspended, you are leaving us with the position of the United States that the Congress may validly suspend it inadvertently? Is that really your position?"
"At least when you're talking about the extension of the writ to enemy combatants..." Solicitor General Paul D. Clement was cut-off mid-reply by Souter, with, "Now wait a minute. The writ is the writ. There are not two writs of habeas corpus!"
Justices John Paul Stevens and Stephen Breyer also suggested that the Bush administration was reading into a vaguely worded statute elements unsupported by the written material. Although the High Court was not requested to address the constitutionality of the Detainee Treatment Act (DTA), several justices hinted that they may do so because its effect suspends habeas corpus, nevertheless.
According to the Constitution, Habeas corpus may only be suspended during insurrection or invasion. Two years ago in another detainee case, Justice Anthony Kennedy noted that the Habeas Corpus Act does not make distinction between citizens and foreigners whenever it grants prisoners access to a judge to review their detention.
The court had before denied the administration's request to dismiss those cases summarily, including Hamdan v. Rumsfeld's case on Tuesday, instead reserving for itself interpretation or application of the statute.
Mr. Katyal, who represents, Salim Ahmed Hamdan, noted that the statute was wasn't a model of clarity, and said it was not specific in applying to all pending appeals.
Hamdan, a native of Yemen, has been in custody at Guantanamo Bay Navel Base for five years, now (since June 2002). He readily admits to being Usama bin Laden's chauffeur and bodyguard, but denies any role in the 9/11 attacks.
Mr. Katyal argued that the court should throw out the government's conspiracy charge against his client. Conspiracy is not usually so loosely applied as a war crimes charge. Hamdan is one of ten detainees charged with conspiracy to commit terrorism out of 490 to have been formally charged by the United States. Mr. Kaytal challenged the cogency of the special military commission that will try Salim Ahmed Hamdan, arguing that it does not licitly adhere to the Uniform Code of Military Justice or 1949 Geneva Convention and further that President Bush lacked the authorization to form the commission to begin with.
Mr. Katyal further argued, "This is not an ordinary criminal trial applying lawful ordinary procedures. The procedures are all defined by the president in this ad hoc trial. He says the laws of war do not apply when we're talking about protecting this vulnerable individual at Guantanamo, but then he says they do apply and permit him to charge Mr. Hamdan with the one offense which is rejected entirely in international law."
Geneva protections should certainly apply to his client, Mr. Katyal indicated, wherein he would be able to partake of independent assessment of his combatant status rather than one by the Combatant Status Review Tribunal, which found that he was an enemy combatant but displayed no such evidence for that accusation on national security grounds.
The government claims that claims the so-called "War on Terror," which appears to be simply a means of stealing the US and Iraq blind and wantonly murder and assassinate Iraq's and Americans, at will, gives the would be Emperor/dictator, err, I mean the Fuhrer, err, president, err, Constitutional authority in "wartime" (we have not been at war, we have been at slaughter and mayhem and stealing of the wealth of the citizens of two nations. A war is something in which almost or equal sides where each are in danger of losing.) Yes, indeed, it is instead, the slaughter of a nation lacking an air force and a navy and 12 times smaller than that attacking nation which is run by cowardly bullies.
Some in Washington wish to take totalitarianist measures to take charge and steal more from American's, at the hands of a certain despicable character who was too scared to go into military service himself. You all know which creature I mean, the one who hid like a snake underground during 9/11, while ordinary citizens had to fend for themselves.
Because the president determined Hamdan to be a member of Al Qaeda and enemy combatant, the government argued that he was not entitled to prisoner of war status - and trial by court-martial - or Geneva protections.
"If he is any different from any prisoner of war, it is because he has disentitled himself to some protections," Clement arrogantly, said.
An exasperated Breyer repeatedly prodded Clement to clear up what he, Breyer saw as contradictions in the government's claims.
Justice Breyer slam-dunked Clement, with, "I take [your] argument as saying you want to try a war crime. You want to say this is a war crimes tribunal. One, this is not a war - at least not an ordinary war. Two, it's not a war crime because [conspiracy] does not fall under international law. And three, it's not a war crimes tribunal or a commission because there is no emergency, it's not on the battlefield, the civil courts are open, there is no military commander asking for It.".
Justice Breyer then added, "If the president can do this, well, then he can set up a commission to go to Toledo and in Toledo pick up an alien and not have any trial at all except for that special commission!"
Clement replied, smugly, "I think the events of 9/11 speak to the fact that this is a war where the laws of war are involved,", then he added that conspiracy was considered a war crime during the Civil War.
While Hamden's multi-purpose appeal appeared well designed for wide appeal, Justices Antonin Scalia and Samuel Alito indicated the case was being brought before them before it's time.
Alito pointed out that Hamdan was questioning a military commission that had yet to try him. "Judicial review after a final decision is the general rule." "You're assuming bad faith on the part of those making these decisions." Gee, I wonder why anyone would assume that?
Clement said that the military commission's word wasn't necessarily the final word. He then added, "He can make the argument he wants to make in the commission. If the commission rejects the argument, then there will be review of that decision in the court of appeals in the concrete record," Under the DTA, the U.S. Court of Appeals for the District of Columbia Circuit has exclusive jurisdiction to review the commission's procedures.
Several justices later asked Katyal what would happen if the government charged his client with a more typical war crimes charge or uncovered more serious evidence against him.
"The government has had four years to get their charges together on Mr. Hamdan. This is the government's charge against him," Katyal answered.
The ruling advocates that the Bushites will have to adopt a military commission system for trying accused terrorists that meets international standards.
The court's ruling also established that federal courts do have the jurisdiction to hear appeals involving "enemy combatants" imprisoned in U.S. military custody outside of the USA, brushing aside a Bush administration argument to the contrary.
In 2006, Congress passed and Bush signed the Detainee Treatment Act, which limited court intervention over the prisoner issue.
Scalia sarcastically wrote that the court's reasoning a "mess.".
Dissenter Alito wrote that, "It seems clear that the commissions at issue here meet the standard." Apparently meaning those established by the government to try the accused terrorists. NOT!
Mr. Hamden's lawyers argued that Bush exceeded his authority by setting up military commissions to try terrorist suspects, whom the administration terms "enemy combatants," rather than prisoners of war. (Watch military lawyer defend terror suspect -- 2:18)
They also argued that the government's charge of conspiracy against Hamdan banned under international standards of law for prisoners of war, and that federal courts in the past had rejected such standards as well, because they were too broadly defined.
The administration's misinterprets the term to mean detainees do not have the same rights afforded prisoners of war, as outlined in the Geneva Conventions.
The "enemy combatant" designation, according to the Bushites, means a suspect may be held in a military prison without the protections of the U.S. criminal justice system, such as the right to counsel, despite the absence of charges. The court rejects this status in this case
The Guantanamo Bay dungeons opened in 2002 and now have 460 prisoners.
At a European Union summit in Vienna, Mr. Bushite said, "I'd like to end Gitmo, like it to be over with." Most nations and their leaders have urged Mr. Bush to close the camp, and he indicated, last week that he might do so, depending on what the court ruled.
Bush said, "They are cold-blooded killers. They will murder somebody if they are let out on the street. And yet we believe there ought to be a way forward in the court of law." Mr. Bushite also said, "One of the things we will do is that we will send people back to their home countries. We have about 400 people left; 200 have been sent back. There are some who need to be tried in U.S. courts."
The majority of the prisoners were captured in Afghanistan.
Anthony Romero, executive director of the American Civil Liberties Union, was elated, as hinted at by this comment: "We're elated."
Bringing the horror pit of Guantanamo back to court involves status hearings created by officers there to simulate battlefield reviews - in the midst of a storm of criticism of "Combatant Status Review Tribunals."
Within hours of the announcement that the Supreme Court would review the case, a US Army judge upheld the dismissal of a Military Commission case against captive Omar Khadr, 21, who were accused of killing of a U.S. Special Forces medic in Afghanistan with a grenade.
In the words of CBS News correspondent Wyatt Andrews, "In other words, the two other branches of government have told the court to lay off Guantanamo and today the Supreme Court said 'No.'"
Only weeks ago, in April, the court turned down an identical request, however at that time several justices indicated they could be persuaded otherwise. There was no comment about their reasoning in the unusual turnabout. Justices took the action without comment along with other end-of-term orders.
"Just because the justices have agreed to hear the cases doesn't mean they will automatically rule against the government and for the detainees," reports CBS News legal analyst Andrew Cohen. He adds, that the news will leave the White House "concerned."
The court did not indicate what changed the justices' minds about considering the issue. However, last week the detainees' lawyers filed a statement of a military officer wherein he described the inadequacy of the process the administration has used as an alternative to an efficacious review by civilian courts.
Professor Eric M. Freedman, professor of constitutional law at Hofstra Law School, who has been advising the detainees, remarked that, "This is a stunning victory for the detainees. It goes well beyond what we asked for, and clearly indicates the unease up there" at the Supreme Court.
Gordon Johndroe, a spokesman for the National Security Council, said "we did not think that court review at this time was necessary, but we are confident in our legal position." (The parents of people who advised him on what to say also lent money to Adolph Hitler and bought German and Japanese War Bonds During WWII.)
The Justice Department issued a similar statement: "We are disappointed with the decision, but are confident in our legal arguments and look forward to presenting them before the Court."
Tom Wilner, an attorney for Guantanamo detainees, says the court is finally confronting the legal black hole of Guantanamo. "Of the 375 detainees, only 10 have been charged with a crime, and the evidence against the rest, can be farcical," Wilner says
Wilner goes on to say, "The government has admitted that most of the evidence is simply second- or third-hand hearsay ... but for many people, there is no evidence,"
According to the Rubric of the Supreme Court, five of the nine justices must agree to take a case that previously has been denied a hearing. The case will most likely be heard in the fall.
In February, the U.S. Circuit Court of Appeals for the District of Columbia supported stripping federal courts of their ability to hear the detainees' challenges to their imprisonment.
The appeals court is studying the detainees' challenges to tribunals that labeled them as "enemy combatants," erasing the legal rights normally allowed prisoners of war.
The lawyers of detainees' are requesting that the appeals court allow a wider inquiry questioning the exactitude of the "evidence" the Combatant Status Review Tribunals have against the detainees, most of it "classified," which in this administration can be decoded as, "we don't like these fellows and so we lied or those who collected money for their testimony lied and the only evidence is so weak the only way we could keep them in court is to pretend it is 'classified.'"
The Justice Department wants limit review, because, they say that the findings of the military tribunals are "entitled to the highest level of deference," which when decoded probably means, "We won't play with you if we can't play by our rules, better known as 'Framing people we don't like."
Evidence like that given by an honest Army reserve officer, a lawyer who was active in the enemy combatant hearings at Guantanamo Bay insists that tribunal members relied on ambiguous and inefficacious intelligence and were being pressured to rule against detainees, often without any reliable evidence. The officer's testimony was submitted to the Supreme Court last Friday, and does a military panels member, who determines whether detainees will continue to be imprisoned, make the first evidence public.
Washington attorney David Remes, who represents 18 detainees, reflected that, "I suspect that the disclosure about the corrupted CSRT proceedings and the very restrictive government view of what the detainees can do in the lower courts led the justices to conclude that they should take up these issues. The court's decision to hear the cases brings the detainees one step closer to receiving their day in court."
Professor Emeritus Peter Bagnolo Social Media Pages:
Professor Bagnolo has majored in: Cultural Anthropology, Architectural design, painting, creative writing. As a child prodigy, abed with polio for almost two years, he was offered an opportunity to skip three grades at age 8. Later He was a (more...)