| Supreme court considers bush habeas corpus suspension { March 28 2006 } Original Source Link: (May no longer be active) http://www.latimes.com/news/nationworld/nation/la-032806scotus_lat,0,955832.story?coll=la-home-nationhttp://www.latimes.com/news/nationworld/nation/la-032806scotus_lat,0,955832.story?coll=la-home-nation
Justices Look Askance at War Tribunal Order By David G. Savage Times Staff Writer
10:56 AM PST, March 28, 2006
WASHINGTON — A Bush administration lawyer ran into sharp and skeptical questions from the Supreme Court today in defending the president's order to use specially arranged military tribunals for suspected war criminals.
Most of the justices said they were inclined to rule against the administration's claim that the president — on his own — can set up military trials that do not follow the rules of either the U.S. military or the Geneva Convention.
That point was underscored by lawyers for a Yemini detained at Guantanamo Bay and charged with conspiracy.
"You will be countenancing a huge expansion of military jurisdiction" if the president's order is upheld, Georgetown law professor Neal Katyal told the court.
He was representing Salim Hamdan, a onetime driver for Osama bin Laden who has been held at Guantanamo Bay and has been charged with conspiring with Al Qaeda. His case is the first to test an order issued by President Bush that said "violations of the laws of war" will be tried in special military tribunals, not ordinary military courts.
Katyal argued that the president's order created an unfair system because his military subordinates decide what crimes will be prosecuted, and who will act as judge and jury. Moreover, the president gave himself the power to review any convictions.
Hamden has protested his trial. A federal judge agreed, saying the military panels violate federal and international law, and halted his trial in a military tribunal. The U.S. Court of Appeals for the D.C. circuit overturned the ruling, saying that Congress gave the president the authority to use force after the Sept. 11 attacks.
During the argument, the justices said they were particularly troubled by a recent move by Congress to say the federal courts cannot hear claims from the prisoners at Guantanamo Bay.
The Constitution says the ancient right of habeas corpus cannot be suspended except in times of invasion and insurrection. Congress cited neither, said Justice John Paul Stevens.
"This raises a terribly difficult question," added Justice Stephen Breyer.
He was joined by Justices Anthony Kennedy and David H. Souter, both of whom took sharp exception to the notion that Congress could strip the high court of the power to decide Hamdan's case.
At one point, Solicitor General Paul Clement, representing the administration, said the attacks of Sept. 11, 2001 were the kind of emergency that would justify suspending habeas corpus.
"This is war," Clement said. And the Guantanamo detainees, like Hamdan, "were not part of the uniformed Al Qaeda division," he said. He argued that Hamdan was not entitled to the protections of the Geneva Convention, and therefore can be tried in a special military court.
Only Justices Antonin Scalia and Samuel A. Alito Jr. spoke up in defense of the government's argument.
Chief Justice John G. Roberts Jr. was absent because he was a member of the lower court panel that upheld Bush's order last summer.
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