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ACLU Urges Supreme Court to Declare Guantánamo Bay Military Commissions Illegal


    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.

This is what the ACLU are saying:

    Describing the military commissions at Guantánamo Bay as unfair and unlawful, the American Civil Liberties Union urged the Supreme Court to halt their use in a friend-of-the-court brief filed in Hamdan v. Rumsfeld (05-184), which is being argued today.

    “The military commissions established by President Bush do not provide a fair trial under any recognized set of legal standards, whether those standards are derived from the Constitution, our international treaty commitments, customary law or the Uniform Code of Military Justice,” said ACLU Legal Director Steven R. Shapiro. “There is no reason to believe that Congress ever intended to authorize such a system, and no reason for the Court now to uphold it.”

    The military commission rules do not guarantee an independent trial court, do not provide for impartial appellate review, and do not prohibit the use of coerced testimony despite extensive evidence that coercive interrogation techniques have been used at Guantánamo Bay and elsewhere.

    In its friend-of-the-court brief, the ACLU argues that this system fails to provide the basic procedural safeguards guaranteed by the Geneva Conventions and American law. In addition, the ACLU said the commissions violate the constitutional rule barring the government from creating a separate system of punishment that applies only to non-citizens.

Note to ACLU : terrorists aren’t covered by the Geneva convention.

    Prior to reaching the merits of these arguments, the ACLU said, the Supreme Court will have to decide whether it still has jurisdiction to hear the case following congressional passage of the Detainee Treatment Act, also known as the Graham-Levin Amendment. The government is contending that the Detainee Treatment Act strips the Court of jurisdiction to hear Hamdan’s appeal, even though it was accepted for review before the Detainee Treatment Act was adopted.

Only eight Justices are participating in this decision. Justice Roberts has recused himself because he has ruled in favor of the government in a lower court. Despite calls for Justice Scalia to recuse himself, he is still participating, and from reports jumped in to help the government word its argument out. Most reports seem to think that the majority of Justices seemed to lean toward the detainee’s defense arguments, especially Souter and Kennedy. The main argument of the government is a straightforward and simple one.

    “This is a war,” he said, and presidents have long had the power in wartime to order the trial of “classic war crimes.”