WASHINGTON - The Supreme Court agreed Monday to consider a challenge to the Bush administration's military tribunals for foreign terror suspects, a major test of the government's wartime powers.
Justices will decide whether Osama bin Laden's former driver can be tried for war crimes before military officers in Guantanamo Bay, Cuba.
Chief Justice John Roberts, as an appeals court judge, joined a summer ruling against Salim Ahmed Hamdan. He did not participate in Monday's action, which put him in the difficult situation of sitting in judgment of one of his own rulings.
The court's intervention piles more woes on the Bush administration, which has already suffered one set of losses at the Supreme Court and has been battered by international criticism of its detention policies.
"I think it's a black eye for the Bush administration. This opens a Pandora's box," said Michael Greenberger, a Justice Department attorney in the Clinton administration and law professor at the University of Maryland.
Now here's a second interesting story. This is from the Washington Post, titled "Cheney Fights for Detainee Policy." Here's the first couple paragraphs from the Post story:
Over the past year, Vice President Cheney has waged an intense and largely unpublicized campaign to stop Congress, the Pentagon and the State Department from imposing more restrictive rules on the handling of terrorist suspects, according to defense, state, intelligence and congressional officials.
Last winter, when Sen. John D. Rockefeller IV (D-W.Va.), vice chairman of the Senate Select Committee on Intelligence, began pushing to have the full committee briefed on the CIA's interrogation practices, Cheney called him to the White House to urge that he drop the matter, said three U.S. officials.
In recent months, Cheney has been the force against adding safeguards to the Defense Department's rules on treatment of military prisoners, putting him at odds with Secretary of State Condoleezza Rice and acting Deputy Secretary of Defense Gordon R. England. On a trip to Canada last month, Rice interrupted a packed itinerary to hold a secure video-teleconference with Cheney on detainee policy to make sure no decisions were made without her input.
Just last week, Cheney showed up at a Republican senatorial luncheon to lobby lawmakers for a CIA exemption to an amendment by Sen. John McCain (R-Ariz.) that would ban torture and inhumane treatment of prisoners. The exemption would cover the CIA's covert "black sites" in several Eastern European democracies and other countries where key al Qaeda captives are being kept.
And now this final little story from President Bush himself. This is also from Yahoo News,titled "Bush Declares: 'We Do Not Torture.'" Here's a couple paragraphs from this story:
PANAMA CITY, Panama -
President Bush vigorously defended U.S. interrogation practices in the war on terror Monday and lobbied against a congressional drive to outlaw torture.
"There's an enemy that lurks and plots and plans and wants to hurt America again," Bush said. "So you bet we will aggressively pursue them but we will do so under the law."
He declared, "We do not torture."
Over White House opposition, the Senate has passed legislation banning torture. With Vice President Dick Cheney as the point man, the administration is seeking an exemption for the CIA. It was recently reported that the spy agency maintains a network of prisons in eastern Europe and Asia, where it holds terrorist suspects.
For the past five years, the American public has been living in a state of fear--fear of terrorism and another 9/11, fear of terrorist smuggling nuclear weapons into the country and causing mushroom clouds over New York. This fear has certainly been amplified by the White House propaganda machine in both marketing its war in Iraq and in destroying John Kerry's presidential campaign last year. The Bush White House has effectively gotten its way in using torture against prisoners by playing up this fear.
And yet while Cheney and the Bush White House continue to support the use of torture, this policy has seriously degraded the U.S. image throughout the world. Look at the Argentine protest marches of last week, and you'll see Argentinians labling Bush as a "fascist" and a "Nazi." Revelations of secret CIA prisons in Eastern Europe holding al Qaida prisoners have emerged, further increasing world condemnation against the United States. The Post article points out a debate raging between two opposing camps within the administration:
But in a reflection of how many within the administration now favor changing the rules, Elliot Abrams, traditionally one of the most hawkish voices in internal debates, is among the most persistent advocates of changing detainee policy in his role as the deputy national security adviser for democracy, according to officials familiar with his role.
At the same time Rice has emerged as an advocate for changing the rules to "get out of the detainee mess," said one senior U.S. official familiar with discussions. Her top advisers, along with their Pentagon counterparts, are working on a package of proposals designed to address all controversial detainee issues at once, instead of dealing with them on a piecemeal basis.
A fundamental question lies at the heart of these disagreements: Four years into the fight, what is the most effective way to wage the campaign against terrorism?
Cheney's camp says the United States does not torture captives, but believes the president needs nearly unfettered power to deal with terrorists to protect Americans. To preserve the president's flexibility, any measure that might impose constraints should be resisted. That is why the administration has recoiled from embracing the language of treaties such as the U.N. Convention Against Torture, which Cheney's aides find vague and open-ended.
On the other side of the debate are those who believe that unconventional measures -- harsh interrogation tactics, prisoner abuse and the "ghosting" and covert detention of CIA-held prisoners -- have so damaged world support for the U.S.-led counterterrorism campaign that they have hurt the U.S. cause. Also, they argue, these measures have tainted core American values such as human rights and the rule of law.
"The debate in the world has become about whether the U.S. complies with its legal obligations. We need to regain the moral high ground," said one senior administration official familiar with internal deliberations on the issue, adding that Rice believes current policy is "hurting the president's agenda and her agenda."
So there's an internal debate raging within the White House between Cheney and Rice regarding the U.S. military and intelligence agencies use of torture. And while this debate is raging, Bush is still clinging to his fantasy views that the U.S. doesn't engage in torture--even though nobody believes him.
But this debate is now shifting outside of the White House's control with the Supreme Court's agreement to hear Hamdan's case. According to the Yahoo News story:
Hamdan's case brought a new issue to the court — the rights of foreigners who have been charged and face a military trial in a type of proceeding resurrected from World War II. Trials of Hamdan and three other low-level suspects were interrupted last year when a judge in Washington said the proper process had not been followed.
The men are among about 500 foreigners, many swept up in the U.S.-led war in
Afghanistan, who have been held at the U.S. military prison in Cuba. The government had planned to proceed with a military trial for another foreigner, Australian David M. Hicks, with a pretrial hearing later this month, but that will likely be stalled now.
Guantanamo Bay has become a flash point for criticism of America overseas and by civil libertarians. Initially, the Bush administration refused to let the men see attorneys or challenge their imprisonment. The high court in 2004 said U.S. courts were open to filings from the men, who had been designated enemy combatants.
Retired military leaders, foreign legislators, historians and other groups had pressed the Supreme Court to review the case of Hamdan, who like many Guantanamo inmates began a hunger strike over the summer.
The administration argued that it was unnecessary for the court to hear Hamdan's case because the Pentagon had relaxed the rules for tribunals, enabling classified information to be shared with defendants "to the extent consistent with national security, law enforcement interests and applicable law." The government also changed the structure of the panels that will hear the cases and decide the men's punishment, with death sentences possible.
Hamdan's lawyer, Georgetown University professor Neal Katyal, said in a filing that "it is a contrived system subject to change at the whim of the president."
"With constantly shifting terms and conditions, the commissions resemble an automobile dealership instead of a legal tribunal dispensing American justice and protecting human dignity," he wrote.
For the past five years, the Bush administration has shredded almost all civil, constitutional, and legal rights of its citizens, or anyone who has been captured and labled as "enemy combatants." They've gotten away with this by playing up the terrorism fears. This is now starting to turn. Just as the American public has turned against the war in Iraq, so now are we starting to see the negative effects of the White House's use of torture. I'm not sure how the Supreme Court will rule in this case, but whatever the decision is, it will have major legal and political consequences if such decision is made in the midst of next year's elections.
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