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Originally posted by acludem
Today was a great day for the Constitution and civil liberties. The Supreme Court, with a mix of liberal and conservative justices, stood firm for the right to a fair trial and the right to an attorney.
Of course it was a lousy day if your name was John Ashcroft.
acludem
...The Court's three rulings will surely complicate U.S. detention policy, at least at the margins. But at the same time they uphold the longstanding and proper deference that the Supreme Court has shown throughout its history to the executive branch on national security, especially in wartime. That includes decisions on how to define and handle a dangerous enemy. For a change, this particular Court actually restrained itself.
Most important, the Court upheld the authority of the Commander-in-Chief to detain enemy combatants, including U.S. citizens. That's the key finding of Hamdi, and the implicit basis of Padilla, which the Court threw back to the lower courts on jurisdictional grounds....
...pretty much guarantees that the 600 or so Guantanamo detainees will bring 600 or so habeas corpus cases--perhaps in 600 or so different courtrooms, with 600 or so different judges demanding 600 or so different standards of what evidence constitutes a threat to the United States. Justice Antonin Scalia's dissent shreds the majority's messy reasoning.
But the solution here is for Congress to step in with legislation consolidating all of the Gitmo cases in a single court. Arlington, Virginia would be a good choice, as that's where the detainees' ultimate warder, Defense Secretary Donald Rumsfeld, is located. It also has the advantage of being located in the jurisdiction of the Fourth Circuit Court of Appeals, which has already examined these issues in a serious way...
...anyone who reads Justice Sandra Day O'Connor's plurality opinion can only conclude that Yaser Esam Hamdi--or anyone else--is unlikely to be sprung from detention anytime soon.
Yes, Justice O'Connor wrote that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." But she also outlined the extraordinary deference that must be given the executive branch.
"The Constitution would not be offended," she wrote, "by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided." And "once the Government puts forward credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence."
In short, the burden is on the petitioner in these cases to prove that the government's designation is wrong. Just to be sure the ACLU gets the point, Justice O'Connor added that "the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting."
Even more striking, Justice O'Connor all but invited the Administration to set up a military court to hear Hamdi's plea. That suggestion goes a bridge farther than even President Bush has dared. His controversial 2001 order establishing military tribunals to try enemy combatants specifically excluded U.S. citizens even though there is ample legal precedent for their use. The Court's ruling is also an implicit suggestion that the military is capable of adequately reviewing challenges brought by the Gitmo prisoners.
All in all, the Court stepped away from the chaos of making judges the arbiters of American security. That's a welcome victory for the Presidency, no matter who wins in November.
U.S. Forms Tribunal for 3 Terror Suspects
1 hour, 37 minutes ago
By PAISLEY DODDS, Associated Press Writer
GUANTANAMO BAY NAVAL BASE, Cuba - The U.S. military has formed a five-member military tribunal to preside over the first trials of terror suspects held at its naval base in Guantanamo Bay, officials said Tuesday. An Australian and two alleged bodyguards of Osama bin laden will be the first defendants.
The Pentagon (news - web sites) announcement came a day after the Supreme Court ruled that prisoners at Guantanamo Bay can appeal their detention to civilian courts.
That ruling was a blow to President Bush (news - web sites)'s stance that the United States can jail terror suspects without judicial review and that the Cuban base was outside the reach of U.S. courts. Relatives and advocates are now planning hundreds of lawsuits to challenge the detainees' captivity.
The trials of an Australian, a Sudanese and a Yemeni would be the first military tribunals convened by the United States since the end of World War II.
"This is an important first step," Air Force Maj. John Smith, a lawyer who helped draft the tribunal rules, said in a telephone interview from the Pentagon. "We'd like to have a case tried by the end of the year..."
