Bush's Guant a1namo Vagaries Before the Supreme Court Justices
    By Corine Lesnes
    Le Monde

    Wednesday 29 March 2006

    Taking into account its "historic" character, the Supreme Court allocated 90 minutes to the proceeding, an extremely rare event for a decision-making body that normally devotes only 60 minutes to each of the 90 cases it agrees to take on each year out of the 8,000 referred to it. Tuesday, March 28, it heard the "Hamdan versus Rumsfeld" case: Osama bin Laden's former chauffeur, Salim Ahmed Hamdan, held at Guant a1namo, against American Defense Secretary Donald Rumsfeld. The stakes are not inconsiderable. "At issue is the distribution of powers between the President, Congress, and the federal justice system with respect to the war against terrorism," the National Law Journal commented.

    One chair is empty. Judge John Roberts has recused himself. While he was not yet president of the court, he ruled on the case. They are therefore only eight, seated in front of immense red curtains. At the last minute, there were theories that the most conservative judge, Antonin Scalia, could have to recuse himself. On March 8 he had made a speech before some Swiss students mentioning that his son had served in Iraq.

    You'd have to be "crazy," he had added, to allow terrorists rights equivalent to those accorded by civilian justice. Six former military officers demanded his withdrawal, but he did paid no attention to their call.

    Detained in Guant a1namo since 2002, Salim Ahmed Hamdan was supposed to be among the first to appear before a military commission, a kind of court martial with lesser safeguards that were established by order of President George Bush on November 13, 2001. The trial never took place, any more than did those of the nine other "enemy combatants" designated by the White House - among 490 prisoners - to be tried.

    Salim Hamdan's lawyers contest the legality of the military commissions. And, more generally, the Constitutionality of the powers grasped by President Bush since September 11, 2001. "We're all in agreement. We need new rules. The question is who must write them. That cannot be the president," Commandant Charles Swift, the military advocate assigned to the case, declared the day before the hearing. All the country's think tanks are waiting to see how the court will rule. The trial is considered the most important since the "Rasul vs. Bush" case in June 2004, which allowed prisoners to contest their detention before federal courts.

    After that decision, the courts have been inundated with appeals. More than 300 lawyers, the self-proclaimed "Guant a1namo Bar," have voluntarily taken up the detainees' defense. A law was voted in on the treatment of prisoners ("Detainee Treatment Act") that prohibits torture (the McCain amendment), but which also takes away from prisoners this right to habeas corpus appeals, a cornerstone of Anglo-Saxon jurisprudence. The detainees would no longer have any but a posteriori recourse against their condemnation.

    Since then, the system has been paralyzed. What should be done with about a hundred appeals? The government has demanded that all courts relinquish the cases. That's another issue the Supreme Court has been asked to sort out. "It would be an extraordinary act on the part of Congress to question this court's authority," remarked Justice Ruth Bader Ginsburg.

    Perfect Silence

    In the courtroom: ambassadors accompanied by their wives, military in full dress uniforms, Attorney General Alberto Gonzales. According to tradition, the public is allowed to come sit for three minutes behind the columns in the back of the courtroom before being seen out in perfect silence by the bailiffs.

    If they raise their eyes, spectators can see a marble frieze representing the Fathers of the Law: Moses, Confucius, Hammurabi, Napoleon, and Mohammed armed with a sword. That representation of the Prophet did not escape the notice of the CAIR (Council on American-Islamic Relations) association, which protects Muslims. Ten years ago, it demanded the image's suppression, but then-Chief Justice Rehnquist responded that it would be "illegal to remove or change any architectural characteristic of the Supreme Court."

    Each lawyer has 45 minutes. Barely had one begun his exposition, when he was interrupted. Judge Scalia and Judge Breyer, his alter ego on the left and a distinguished francophone, tossed the ball back and forth through interjected questions. Judge Clarence Thomas, slumped in his black leather armchair, didn't say a word, as is his custom.

    It's a kind of big oral exam, pointillist and erudite. They dissect the episode of 1780, when George Washington had brought together a group of generals to try the British major John Andr , accused of espionage. That had been the first military commission, asserts the government's advocate general, Paul Clement, the proof of their legitimacy, even if they were never used again until the 1942 trial of eight Nazi saboteurs.

    The government's lawyer went through a difficult moment when he tried to explain to a court that jealously guards habeas corpus that Congress had not intended to suspend that disposition even though that appeared to be the case. "You're saying that Congress could have suspended habeas corpus inadvertently?" asked an astonished Justice David Souter.

    His colleague Stephen Breyer summarized the accusation: "You talk to us about a war against terrorism, but this is not a war, at least not an ordinary war. This is not a war crimes tribunal: there's no emergency, no battlefield, civilian justice operates, and not a single officer has made any other claim. If the president can do all that, then he can go to Toledo (Ohio), put a military commission in place, choose a foreigner and judge him in front of that special commission," he declared. The decision is not expected before July.