after-words.org

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 Guant�namo 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. [....] 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.

[...] 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....

Supreme Court: Detainees' Rights—Scalia Speaks His Mind
April 3, 2006 issue - The Supreme Court this week will hear arguments in a big case: whether to allow the Bush administration to try Guantánamo detainees in special military tribunals with limited rights for the accused. But Justice Antonin Scalia has already spoken his mind about some of the issues in the matter. During an unpublicized March 8 talk at the University of Freiburg in Switzerland, Scalia dismissed the idea that the detainees have rights under the U.S. Constitution or international conventions, adding he was "astounded" at the "hypocritical" reaction in Europe to Gitmo. "War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts," he says on a tape of the talk reviewed by NEWSWEEK. "Give me a break." Challenged by one audience member about whether the Gitmo detainees don't have protections under the Geneva or human-rights conventions, Scalia shot back: "If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy." Scalia was apparently referring to his son Matthew, who served with the U.S. Army in Iraq. Scalia did say, though, that he was concerned "there may be no end to this war." [...] "This is clearly grounds for recusal," said Michael Ratner of the Center for Constitutional Rights, a human-rights group that has filed a brief in behalf of the Gitmo detainees. "I can't recall an instance where I've heard a judge speak so openly about a case that's in front of him—without hearing the arguments." Other experts said it was a closer call. Scalia didn't refer directly to this week's case, Hamdan v. Rumsfeld, though issues at stake hinge in part on whether the detainees deserve legal protections that make the military tribunals unfair. "As these things mount, a legitimate question could be asked about whether he is compromising the credibility of the court," said Stephen Gillers, a legal-ethics expert. A Scalia recusal (it's entirely up to him) would create problems; Chief Justice John Roberts has already done so in Hamdan because he ruled on it as an appellate judge. A Supreme Courtspokeswoman said Scalia has no comment.