The Supreme Court two years ago emphatically rejected the president's claim that its jurisdiction did not extend to Guantánamo. Seeking to reverse that ruling, the White House in December helped push through a special amendment as part of the deal that also saw Mr. Bush sign a watered-down ban on torture of military detainees. The amendment, sponsored by Senator Lindsey Graham, a Republican, and Senator Carl Levin, a Democrat, stripped Guantánamo detainees of the normal rights of judicial review. It also designated a single appellate court to conduct a limited review of decisions by the military commissions, and left "enemy combatants" held without a trial in a seemingly inescapable legal black hole.This editorial made me look into the Hamdan case. According to the appellate court opinion (PDF file):
As soon as Mr. Bush signed this law, he declared that the administration was going to apply it to all pending cases, about 160 or so, and the solicitor general told the Supreme Court it no longer had a right to hear Hamdan v. Rumsfeld. This is court-stripping — the attempt by another branch of government to prevent the court from deciding a particular issue. The White House tried to justify this outrageous tampering with the judiciary by ignoring the new law's actual language and legislative history to argue that the new legislation took away the power of the courts to hear not just future cases but also cases already filed and accepted for review. The Supreme Court responded by adding the jurisdictional objection to the list of issues it will consider when the case is heard on March 28.
On July 3, 2003, the President determined “that there is reason to believe that [Hamdan] was a member of al Qaeda or was otherwise involved in terrorism directed against the United States.” This finding brought Hamdan within the compass of the President’s November 13, 2001, Order concerning the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833. Accordingly, Hamdan was designated for trial before a military commission.It is worthwhile, I think, to see how detailed these issues are. The crux of the legal matter before the appellate court is here:
In response to the Supreme Court’s decision in Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), Hamdan received a formal hearing before a Combatant Status Review Tribunal. The Tribunal affirmed his status as an enemy combatant, “either a member of or affiliated with Al Qaeda,” for whom continued detention was required.That led to a hearing in Federal district court:
Among other things, the court held that Hamdan could not be tried by a military commission unless a competent tribunal determined that he was not a prisoner of war under the 1949 Geneva Convention governing the treatment of prisoners. The court therefore enjoined the Secretary of Defense from conducting any further military commission proceedings against Hamdan. This appeal followed. Hamdan was held at Guantanamo, and granted a "military The legal issue taken up by the Court of AppealsThe appellate court considered arguments from Hamdan regarding the validity of the military tribunals, and rejected them, reversing the decision of the District Court, largely on the basis that, per the Eisentrager decision, the 1949 Geneva Convention cannot be judicially enforced.
The Motion to Dismiss, based on the "Detainee Treatment Act" removing jurisdiction, is here, for those interested in legal briefs (also a PDF file).
There is more to it than just this, of course:
In light of the Rasul judgement, the Government, on 7 July 2004, created the Combatant Status Review Tribunal (CSRT), a body composed of three noncommissioned officers, to examine the legality of detentions. Thereafter, the United States District Court dealing with the habeas corpus petitions of the Guantánamo detainees ruled that the CSRT proceedings “deny [the detainees] a fair opportunity to challenge their incarceration” and thus fail to comply with the terms of the Supreme Court’s ruling. (From In re Guantanamo Detainees Cases, 355 F. Supp. 2d 443, at 468-478.)That is from the UN report on Human Rights Abuses at Gitmo. This is another issue the Supreme Court needs to address: the government's response to Rasul. The lower courts have not found these 'tribunals' to meet the standards of habeas corpus, and it isn't at all clear that the Detainee Treatment Act addresses that fundamental jurisdictional issue, or that it can, without simply carving habeas corpus out of the jurisdiction of the Federal courts; which would present a wholly different Constitutional issue, of course.
The Administration ignored the Rasul ruling and set up a system to thwart it, the "military tribunals," which are nothing more than kangaroo courts. Courts tend to jealously guard their jurisdictional authority (it is the only real authority they have), so I don't expect that even Justice Alito will prove a "swing vote" in favor of allowing the Federal courts to be stripped of their jurisdiction in so fundamental a matter as habeas corpus (a right even Scalia vociferously defended in his dissenting opinions). Indeed, Scalia's dissent in Rasul was in part on the court's extension of habeas corpus to non-citizens in that case, a holding he said ran contrary to Eisentrager, the opinion the appellate court relied on (and that may or may not be a significant issue on appeal). And the government is now clearly relying on the "Detainee Treatment Act" as warrant for its actions, even as those actions bring it into conflict with the Hamdi and rasul holdings. It is hard to read Hamdi as validation for the "military tribunals" the Administration has relied on. Rasul extended habeas corpus to non-citizens like Hamdan. These two issues are clearly present in this case, which is why the government is anxious to have it dismissed on jurisdictional grounds.
And the Court has agreed to take up the jurisdictional issue, again. In Hamdi, they rejected the argument that the President had the power to change the Court's jurisdiction. The District Court received the Hamdan case because of Rasul. It would be ironic indeed if that case were now to be used to undo the Court's jurisdiction over the detainees. But that is the government's position in the matter.
What we are witnessing is nothing less than an attempt to shred the Constitution. Bush doesn't want to shrink government; he wants to supplant it. The blatant grab for raw power continues unabated, and has finally reached the Supreme Court. Kevin Phillips is right: Bush is a national embarassment. But it's worse than that: he's a danger to the republic, and to the Constitution he swore to defend against all enemies, foreign and domestic. It's going to be very hard to convince Bush he is that domestic enemy.