Strongly suggest you all listen to Hamdan case.

[The Witch]

It deals with the legality of the military tribunals in Guantanamo and could be far-reaching in terms of presidential wartime powers.

It's on c-span 3. http://www.c-span.org

[stop the bleeding]

1. I can't but

K&R!

[liveoaktx]

69. AUDIO on CanOFun

entire thing

[liveoaktx]

2. How about when it starts you begin an official thread?

[Jack Rabbit]

3. Background (BBC)

From the BBC Online
Dated Tuesday March 29 11:48 GMT (3:48 am PST)

US judges to hear Guantanamo case

The US Supreme Court begins hearing a case on the legality of the military trials at the Guantanamo Bay prison camp in Cuba.

Lawyers for detainee Salim Ahmed Hamdan - former driver for Osama Bin Laden - say the tribunals are unconstitutional.

Legal experts say a potential landmark ruling against the trials would rein in US President Bush's expanded powers in punishing suspected terrorists.

Mr Hamdan, from Yemen, denies charges of conspiracy to commit war crimes.

Read more.

[The Witch]

4. Ok, this will be the official thread then

The official thread has no attention paid to it. ;-)

[The Witch]

5. I need to go eat something for a while so please go on w/out me

I will listen at lunch and bring my observations back to DU later, look forward to discussing with you all.

[Solly Mack]

6. I'm listening

Katyal explaining why the conspiracy charge is bogus and rejected by international law, as well as us federal code under the war crimes act of 1996

the justices seem to be wanting to allow a lower court to address the issue and only come back to them for appeals

Katyal is having to explain to the justices the difference between aiding and abetting and conspiracy.

quoting the President as claiming he does not have to abide by the UCMJ (Bush said this)

Comparison between Bush's military commissions and Court Martials
http://www.hrw.org/press/2001/12/miltribchart1217.htm

The issue is - and the truth of the matter is

Bush is charging Hamdan under laws of warfare - so he's entitled to full geneva rights...BUT Bush, the piece of shit, wants the rights allowed Hamdan denied with his military commission

Katyal touched on the illegality of naming someone an enemy non-combatant without tribunal first(to determine their status)....Bush only allowed a military tribunal AFTER people were named enemy non combatants (to review their status) - which is against international law and the UCMJ.

[The Witch]

7. I'm back! This is fascinating.

:kick:

I hope people are listening. i think that the hamdan defense is very solid, but the justices are picking apart the layers and trying to pit them against each other. The rumsfeld counsel is a little bit more discombobulated, but I don't know enough about law to tell you if he's hanging himself :)

[Norquist Nemesis]

8. He is sounding desperate

I've been listening in the background (while reading other things) and didn't realize they had changed to Rummy's side. LOL!

[Norquist Nemesis]

9. Oh, my! Breyer just...just

well, he sounded pissed and implied that Congress is trying to dismiss and subvert the powers of SCOTUS.

[BrklynLiberal]

10. Hah! There are members of SCOTUS that are trying to subvert the

power of the SCOTUS!!!

[KansDem]

27. LOL!!!

:rofl:

So true...so true...

[The Witch]

11. Guvvie lawyer can't get a word in edgewise.

I am so glad I work at a legal newspaper, I will get lots of opinions on this :)

[The Witch]

12. The sticking point: how do you answer charges that it's unconstitutional?

Good. That *SHOULD* be the sticking point for this government.

[The Witch]

13. "exigecies [sic] of 9-11" = Lawyerspeak for "9-11! 9-11! BOOO!"

:rofl:

[The Witch]

14. "Are you suggesting congress can suspend habeas... inadvertently!?"

:rofl: Guvvie lawyer wants to crawl in a hole 'n' die. ;-)

[Norquist Nemesis]

18. Justices "sound" as if his arguments are nothing short of

incredulous! I haven't heard Alito and Scalia asking questions of this guy, but Breyer and Souter...WHEW! (Ooops, Scalia popped in there for a minute to help out.)

[Norquist Nemesis]

15. LOL! Rummy's lawyer is getting hammered!

He's all over the place, unable to explain his position, and fumbling big time!

[The Witch]

16. Congress should take note. This is what oversight looks like.

I like them 'activist judges' ;-)

[Mandate My Ass]

17. Souter's got him on the ropes

stuttering away about habeas.

given the significance of suspending of writ of habeas corpus shouldn't we have a clear statute? Something silent about it whether congress was aware that it was suspending HC. It seems there would be difficulty in finding clear intent of suspending writ under H1 powers.

[The Witch]

19. If I am reading this correctly, Souter is undermining the basis for saying

"Congress GAVE the president this power." That way you are stuck with the inherent presidential authority argument, which was recently refuted in the Hamdi case.

But I have only worked at this paper for a week so I am not a legal scholar ;-)

[Nikki Stone1]

21. Thanks for this thread, Witch

I don't have cable so I really appreciate this.

[The Witch]

23. Can't stream it either? Boo hoo for you.

C-Span radio i think is also running it...

[Nikki Stone1]

36. I'm on dialup and a slow connection at that.

Nothing comes through terribly well. :(

[Mandate My Ass]

20. extraordinary that congress did this weeks after we got case

why should we assume congress withdraws our jurisdiction to hear this when the case was already lodged here? Justice Ginsberg.

[Solly Mack]

22. That was great! It really was

[Mandate My Ass]

26. we need more of her

Her dissent in Bush v. Gore was blistering while maintaining judicial decorum.

[fooj]

24. Events of 9-11...

blah, blah, blah...........

[The Witch]

25. hahah! I think this guy just argued that US is guilty of war crimes

"a conspiracy to deprive POWs of their rights was deemed a war crime by SCOTUS" :wow:

Whoops. :)

[SCDem]

28. The likes of Scalia and Alito would probably say that is pre-911

thinking

[The Witch]

30. And I would respond with a certain sicilian gesture. :grin:

:evilgrin:

[The Witch]

29. Now he's quoting a case that said Geneva is unenforceable.

Very worrisome. and it's being taken with a grain of salt by at least one justice.

[liveoaktx]

31. Just coming in ... is that the govt lawyer arguing this?

[The Witch]

32. Yes, it is.

[liveoaktx]

33. Ah! I hear him saying that the Executive can trump Geneva

[Jose Diablo]

38. Ha, and one of the justices relied about something about

'separation of powers'.

What I 'heard' was, are you saying the prez can step on our toes?

[liveoaktx]

39. Yes, and why's the PRez running around making law?

[Mandate My Ass]

34. Geneva conventions don't apply...

The 1949 Geneva Conventions were held contemporaneously with Eisenberger(?) that enemy combatant would get protection of court of the detaining country was absurd. The GC were dealing with people who were very vulnerable. ICRC gets access to detainees. If there is some role for international law, has to give weight to executive act. Pres says conspiracy is an act that can be adjudicated in a military tribunal.

Stevens: Pres can't make something a crime that was never a crime before.

[liveoaktx]

35. Explain to me-why does it matter if conspiracy is a charge?

[The Witch]

37. Conspiracy is not a valid war crime because anyone could be charged

who was on that side of the war.

[Solly Mack]

45. Because conspiracy can cover anything Bush claims it is

the old lady donating to a charity, unaware that it's a terrorists front, can now be charged with conspiracy - since conspiracy is such an undefined and broad charge that can encompass any act

A lot of times, when no other charge will stick, the government will claim conspiracy - even if there is no evidence or proof of guilt for an actual act, you can claim they were still one of the conspirators - simply by association or the innocent donation.

[liveoaktx]

48. So, Hamdan was then accused of the vague charge "conspiracy"

without being adjudicated as being a POW or enemy combatant, yes?

[Solly Mack]

59. Yes - he's being charged under the laws of land warfare w/o benefit

of protections allowed him...and a bogus charge at that- as it's been rejected by treaty/international law and military tribunal law

[The Witch]

51. Note - Not just a Bush argument but has been previously established

that conspiracy is not a valid charge in military tribunals

[Solly Mack]

60. Precisely. A very important fact in this case

and one Bush , the tyrant, thinks he can just overlook

[Mandate My Ass]

40. Hamdan is not protected by Geneva conventions

he is protected by the laws of war. Not domestic court. He disentitled himself by c-cert provisions. All protections that were provided in article V hearing. Innocent civilian vs. enemy combatant. It was his claim when he went into court "I did not take up arms against US." That ought to be enough to allow hearing to go forth in tribunal. The use of military commissions has been part and parcel of war powers for 200 years. This court agreed in a host of cases.

[The Witch]

41. Among other things, this guy can't pronounce Yamashita. My head hurts.

I have a friend named Yamashita. She would say 'kimoi'! :rofl:

Sorry. Random japanophile joke.

[fooj]

62. You and me, both.

LOL!!! I'm married to a Japanese man and Yamashita is TOTALLY not being pronounced correctly.
:rofl: :rofl: :rofl: :rofl: :rofl:

[liveoaktx]

42. Historical role of the SCOTUS to test military tribunals

[The Witch]

43. Hamdan attorney back up.

[Mandate My Ass]

44. Hamdan atty

President can block final review for all time. If you defer to this system and give pres ability to try 75 people you will be countenancing a huge expansion in presidential war powers!!

Right on!

[The Witch]

46. This is an AD HOC trial with AD HOC rules.

indeed.

quoting Paine.

[The Witch]

49. Oral arguments are over.

Thanks for keeping me company on this thread, all :)

[Nikki Stone1]

54. Thank you again for posting

Really appreciate it

[SCDem]

47. So it looks as if Hamdan has a strong case

But now it just seems like it's up to SCOTUS and who is a crazy Bush neocon appointee and who is not

I'm just following along here on DU (do not have access via TV or net so thank you) but it looks like
Stevens, Ginsburg, Souter

on the other side of the fence is:
Alito, Scalia, Thomas

and Roberts has recused himself.

Where have Justice Kennedy's comments fallen and the other SCOTUS that my mind is just blanking on right now?

Of course these are just comments and this doesn't mean anything when it comes down to deciding a case.

[Mandate My Ass]

53. I read there's a strong possibility

of a 4-4 split. x(

[SCDem]

57. Has this happened in the past?

If so what happens?

I think it's ridiculous that the court even hear the case if it can come up with a judicial ruling and it means nothing.

[Mandate My Ass]

50. this is an ad hoc procedure

he (pres) says laws of war don't apply (for Hamdan's protection) but then they do (for Boosholini to become judge, jury and executioner). He charged him with one offense that is rejected by int'l law. (?)

Asking that you enforce the lawful uses of commissions in military cases.

[liveoaktx]

52. Thank you-that's it in a nutshell

[Mandate My Ass]

55. Hamdan's lawyer was good, not whiny like Rummy's

I think he made his case.

[rpgamerd00d]

56. Thomas Paine quote:

"He that would make his own liberty secure must guard even his enemy from oppression."
-- Thomas Paine

[Jose Diablo]

58. To summarize what I heard thru all this

Was the executive is arguing there 'right' to set-up a star chamber court outside of the constitution and without any legal basis to put anyone on trial, that they want. Using a military tribunal and war powers.

[Odin2005]

61. This got me pissed of this morning.

* is using the "9/11 changed everything" and "unitary C-in-C powers" BS. :grr: We are not in a state of war. A state of war requires two ore more opposing governments, AQ is not a government. The wars in Afganistan and Iraq ended when the new governments were set up. If there is no state of war the Prez can't invoke C-in-C powers, end of story.

[Thorandmjolnir]

63. For what is worth

I have some insight into these case, since I am working with the Pentagon defense counsel for one of the prisoners in Gitmo. (Major Mori, google and look him up, a real hero).

There are some big issues in this case, and some of them were only briefly touched by the hearing.

One is Habeas Corpus, which allows someone being held by the US government to challenge the governments right to do so in the courts. The US Supreme Court said in Rasul v. Bush, that the Gitmo prisoners can bring habeas corpus petitions before the US civilian courts.

The Detainee Treatment Act of 2005 says they cannot. One problem, which is what Justice Stevens alluded to: there are only two ways the Habeas Corpus Act can be suspended (the so called suspension clause) In case of rebellion or invasion. The Gov. lawyer tried in one of his comments to equate 9-11 with invasion. (Quickly moved on, because that is a ridiculous argument). His other argument was that Congress "inadvertently" suspended the Habeas Corpus. That was why J. Stevens was upset. Congress cannot "inadvertently" suspend a right that has been part of US (and before that UK) law, since the Magna Carta. Then the Gov. lawyer tried to make a distinction between citizens and non citizens, when it comes to the Habeas Corpus. Another ridiculous assertion, since the act does not make any such distinction.


The second part of the big issue, which was not really discussed at the hearing is, exactly what rules applies. Hamdan's lawyers want the UCMJ to apply. Its a tested and proven system, where every one knows how to act. The system set up by the president only serves one purpose: Get a conviction while maintaining the appearance of fairness.

It is anything but fair. The judges are military people. Only the presiding officer is legally educated. They are appointed by the Secretary of state. Any decision they make that will dismiss a charge must be approved by the Secretary of State (who can overturn that decision). (There are lots of other stuff).

Third, the charges are totally bogus. In our clients case, he is charged with conspiracy, Unlawful killing by a belligerent and aiding the enemy.
First, like the Hamdan lawyer said, conspiracy is not an international recognized war crime. As a matter of fact, the US is one of very few countries with conspiracy as a crime. In most other countries, you must be an accomplish to be liable. The distinction is huge. In conspiracy, you don't need to take any active part in the crime, (and in fact, no actual act needs to take place) to be liable. Just the fact that you know about it is enough. As a matter of fact, you don't need to know the full scope of the crime to be liable. Applying that to Gitmo people. The fact that they were at Al Queada training camps makes them liable for all actions committed in the name of Al Queada, even if they only came there to defend the taliban, and had no intention of bombing an embassy in Africa. To be an accomplish, there has to been an act and you must be an active participant in carrying out that act.

The second charge is total BS. The government is saying that any one shooting at a coalition soldier is guilty of a war crime (seriously!). Meaning, any one who fought back during the invasion on Afghanistan is guilty of a war crime:

32 CFR 11.1

(3)(B) Unlike the crimes of willful killing or attacking civilians, in which the victim's status is a prerequisite to criminality, for this offense the victim's status is immaterial. Even an attack on a soldier would be a crime if the attacker did not enjoy "belligerent privilege" or "combatant immunity."


The above listed "crime" is totally bogus. It is not the status of the person doing the killing that is determining whether a war crime is being committed, but whether the person being killed is a "protected" person. like a POW, civilian or wounded person.

The last charge is Aiding the Enemy. Another BS charge. Our client is Australian. So he cannot ppossible be aiding the enemy, because he owns no allegiance to the US. The government say, that they can prosecute him by proxy (on behalf of Australia) even though Australia has said it is not a crime under Australian law.

That is what the Hamdan case is about. If the Supreme Court find for Bush, he can make up charges against any one any where in the world in his "war on terror".

An yes, a little old lady in Switzerland, who donates money to a charity, that turns out to be Al-Queda, would be guilty of war crimes.


There are a whole lot of other issues involved, but those are some of the major ones. Scary stuff.

[SCDem]

64. What happens if the ruling is 4 - 4

Is there a historical precedent set as to what happens since there are only 8 justices hearing this case?

[Thorandmjolnir]

65. If the ruling is 4-4

the lower courts ruling stand. The lower court in most parts agreed with the government, but, the lower court did not address the Habeas Corpus claim and the DTA (not enacted at the time of the lower courts ruling).

[SCDem]

67. From listening to the arguments today....

What do you think the vote break down will be

Sounded to me like Souter, Stevens and Ginsburg were really taken the Rumsfeld lawyer to the mill but Hamdan needs to others - if you have time... what are your thoughts?

[Thorandmjolnir]

70. Sounded like Scalia and Alito leans

towards the government (big surprise there). We know Thomas always sides with the government in cases like this.

Personally, I think it will be a 5-3 decision. I think the majority will follow Stevens, who wrote the opinion in Rasul, and I think it will follow Rasul. It will set limits as to what the government can do. It will disregard the Habeas stripping provision in the DTA (especially if it is true that Kyle and Graham lied in their brief to the court) and I think (and hope) that it will reign in this unlimited grab at power by the executive.

The problem here is, that this case is a huge power grab by Bush. IF not stopped now, there is no limit to what he can and cannot do in the name of War on Terror.

No act of congress, no treaty or anything can stop him.

[SCDem]

71. Thanks for your response....

It gives me hope that we can put some type of stop or slowdown to this increasing zeal of American imperialism.

This is becoming more than me just being an active Democrat. This is more than just party politics - I see Hamdan's attorney and I see Patrick Fitzgerald and I see people who are concerned about the United States, it's constitution, the rule of law etc. That gives me hope and hopefully the SCOTUS will renew my faith in the America that I thought I was a part of.

Again thank you very much :)

[Mandate My Ass]

66. Thank you for that explanation

You've very succinctly filled in the gaps of what we heard today.

I also thought the arguments by Rumsfeld's attorney were tissue-paper thin, not that it ever stops this cabal from making them anyway. They know who their friends are on the court. Scalia should have recused himself, but he's just as arrogant and filled with hubris as the rest of them. "They were shooting at my son so I don't care what happens to them." How judicious. :eyes:

[Thorandmjolnir]

68. What I think the Bush lawyer did well

was to deflect discussion from the big issues.

J. Stevens was great and really hammered the basic issue. Can the government prevent someone from contesting their detention by the US government.

The other issue, whether the court should hear the case now or wait until after a final decision is also crucial. (I think that is the way Scalia is leaning).

The problem with that argument, is that the prisoners claim they should not be on trial at all. If some of their acts are as described by the government, then they enjoy combat immunity, and are simply POW's. the problem with that is then you have to treat the humanely. (Which has not happened in this case). Second, in they enjoy combat immunity, they did not commit war crimes, and thus the commission has no jurisdiction.

Further more, the prisoners were not all apprehended on the battlefield. Some where taken in Bosnia. Another point is, that if this is a war, and we are fighting an enemy, then it must follow, that any prisoner we take in this war, is a prisoner of war.

The reason for the requirement in the Geneva Convention for identification or uniform, is so soldiers can shoot at you without committing a war crime (Shooting on civilians). But, since the government has already established that these people are the enemy, they must have been easily distinguishable from the general civilian population.

The prisoners are caught in a catch-22 and the government want to the Supreme Court to endorse it.

They are are the enemy because we say so, but no prisoners of war because we cannot tell what they are.

War crimes has never applied to a conflict like this. Remember, it is not a war crime to shoot at your enemy or destroy enemy installations.

Therefore, the bombing of the Cole, using the governments argument, was not crime, but a simple act in a war. And if we catch the people responsible, then they are POW's.

The only alternative is to use traditional criminal law and diplomacy. Of course, Bush would never do that.

[Mandate My Ass]

72. deflection, they excel at that

They also cherry pick facts of different cases or statutes and apply whatever fits their argument while chucking the rest. Once again thank you for your explanations which are very enlightening, particularly the Catch-22 reference about the Geneva Conventions which clears up a lot.

I googled Maj. Mori like you suggested. He really is speaking out against the "kangaroo court" nature of what they're promoting. I also was surprised to learn about the purge of the first group of ethical defence attorneys, which I hadn't read here but was reported in The Guardian. Of course they were replaced by people who were sympathetic to the cause. How did Maj. Mori manage to stay on?

[Thorandmjolnir]

74. Not sure

But from what I understand from him is, that the Military is pissed about this kangaroo court. Just look at the number of retired military personal that has filed Amicus Briefs on behalf of the prisoners.

[The Witch]

75. Thank you so much for your insight!

You should post this separately. It's important stuff.

[0007]

73. I did! Scalia didn't sound too happy toward the end.

[Mandate My Ass]

76. good article here

Decommission The Commissions

On March 28, the Supreme Court will hear arguments on whether the "military commissions" created by President Bush in November 2001 to prosecute suspected Qaeda terrorists are a time-honored presidential prerogative or (as I have reluctantly come to believe) another unwise, unconstitutional Bush power-grab.

The difficulty of sorting out enemy combatants from innocent civilians calls for especially exacting procedural fairness.

The legal issues are complex and difficult, and the outcome is hard to predict. What's already clear beyond dispute, however, is that this supposedly speedy, streamlined system -- which took nearly three years to start its first trial -- has in practice been a fiasco and an international embarrassment.

Small-fry defendants. Weak evidence. Commission members apparently hand-picked for their likelihood to please their bosses.

Egregious errors by translators. And constantly changing rules, including the last-minute effort to dress up the commissions for their date with the Supreme Court by banning the previously approved use of statements obtained under torture.

http://nationaljournal.com/taylor.htm

And a superb resource here: http://www.hamdanvrumsfeld.com/briefs

[The Witch]

77. we reprinted this in my paper -- i was very pleased with it.

It's the truth.

(I took out that last paragraph break, but I see it was on purpose...)

[Gabi Hayes]

78. anybody heard the latest on this? are they still doing orals?

Talk of the Nation discussed this yesterday, and the 'experts,' including one of Hamdan's attorneys agreed that they probably will rule that at least the UCMJ will have to be followed, meaning Hamdan will at least have to appear before the tribunal/commission, whatever