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Bush's Justice and the War on Terror By: Henry Mark Holzer
FrontPageMagazine.com | Wednesday, July 20, 2005


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The media coverage of President Bush’s nomination of John G. Roberts, Jr., to the O’Connor seat on the Supreme Court of the United States has understandably focused on his legal background and conservative credentials. Because the court on which he now sits—the United States Court of Appeals for the District of Columbia Circuit—has twelve justices who sit in random panels of three, and because Judge Roberts has been a member of that court for only two years, critics of his nomination such as Kennedy, Leahy, Durbin and Schumer will have a limited number of cases on the basis of which to attack him.

In an odd quirk, the case upon which they may rely most was decided only last Friday.  Two other circuit judges (one of whom wrote the opinion) and Judge Roberts unanimously rendered a decision that strikes a blow for our country in our War on Terror.

Salim Ahmed Hamdan was admittedly Osama bin Laden’s driver in Afghanistan from 1996 to two months after the September 11, 2001 terrorist attacks in Washington, DC, and New York City.

 

On November 13, 2001, President Bush, with Congressional approval, promulgated an Order relating to the “Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism.  That Order, among other provisions, created Military Tribunals.

 

Hamdan was captured by Afghani troops in Afghanistan in late November 2001, turned over to the American military, and then interned at Guantanamo.

 

In July 2003, the President determined that there was reason to believe Hamdan was either a member of al Qaeda or otherwise engaged in terrorism against the United States.

 

In accordance with President Bush’s Order of November 13, 2001, and his July 2003 determination that good cause existed to believe Hamdan was a terrorist, he was marked to be tried before a Military Commission.

 

In December 2003, Hamdan was appointed counsel.

 

In April 2004, he filed a petition for a writ of habeas corpus in the United States District Court for the District of Columbia—even though at that time there was no federal statute or Supreme Court decision that allowed Hamdan, an “enemy combatant,” to do so.

 

But Hamdan, and the rest of the Guantanamo detainees didn’t have long to wait.

 

Just two months later, the Supreme Court of the United States in the cases of Hamdi v. Rumsfeld and Rasul v. Bush ruled that “enemy combatants” were entitled not only to file petitions for habeas corpus (anywhere in the United States), but were also entitled to due process of law.  Sandra Day O’Connor was the fifth, swing vote that allowed the Court’s four liberals—Stevens, Souter, Ginsburg and Breyer—to so handcuff our country’s defense against terrorists.

 

While Hamdan’s habeas corpus petition was pending, he was formally charged with conspiracy to attack civilians, murder, destruction of property and terrorism.  In addition to charging that Hamdan was bin Laden’s driver, it was alleged that the defendant served as bin Laden’s bodyguard, delivered weapons to al Qaeda members, and trained at an al Qaeda camp.

 

As a result of the Hamdi decision, Hamdi went before a Combatant Status Review Tribunal, which found that he was indeed an enemy combatant “either a member of or affiliated with Al Qaeda.”  Consequently, his continued detention was required.

 

Enter judge James Robertson of the United States District Court for the District of Columbia.  Here is his biography:

Judge Robertson was appointed United States District Judge in December 1994 [by William Jefferson Clinton].  He graduated  from Princeton University in  1959 and  received an  LL.B. from George Washington University Law School in 1965 after serving in the U.S. Navy.  From 1965 to 1969, he was in private practice with the law firm of Wilmer, Cutler & Pickering [Lloyd Cutler was, for a while, White House counsel to President Clinton].  From 1969 to 1972, Judge Robertson served with the Lawyers’ Committee for Civil Rights Under Law, as chief counsel of the Committee’s litigation offices in Jackson, Mississippi, and as director in Washington, D.C.  Judge Robertson then returned to private practice with Wilmer, Cutler & Pickering, where he practiced until his appointment to the federal bench.  While in private practice, he served as president of the District of Columbia Bar, co-chair of the Lawyers’ Committee for Civil Rights Under Law, and president of Southern Africa Legal Services and Legal Education Project, Inc.

On November 8, 2004—perhaps driven by his own politics, but certainly by the license given him by O’Connor’s Hamdi and Rasul decisions—Robertson granted a part of Hamdan’s habeas corpus petition. 

Essentially, Robertson ruled that bin Laden’s al Qaeda terrorist driver might be covered by the 1949 Geneva Convention as a prisoner of war, and until a competent tribunal found otherwise Hamdan (and, by implication, anyone like Hamdan) could not be tried by a military commission.  To enforce his ruling, Robertson enjoined the Defense Department from conducting any further proceedings against Hamdan.

The government appealed to the United States Court of Appeals for the District of Columbia Circuit.

Only two “friend of the court” briefs were filed supporting the government: the “Washington Legal Foundation” and “The American Center for Law and Justice.”

 

“Friends of the court” supporting the terrorist included dozens of law professors, “305 United Kingdom and European Parliamentarians,” “Military Attorneys Detailed to Represent Ali Hamza Amhad Sulayman Al Bahlui,”  “Military Law Practitioners and Academicians,” “National Association of Criminal Defense Lawyers,” “Human Rights First,” “General Merrill A. McPeak,” “People for the American Way,” “The World Organization for Human Rights USA,” “Urban Morgan Institute for Human Rights”—and, worst of all, the prestigious “Association of the Bar of the City of New York.”

 

Despite this array of “friends,” the Court of Appeals panel—one of whom was John G. Roberts, Jr., President Bush’s nominee to the Supreme Court—reversed Judge Robertson, rejecting his conclusion that Hamdan was covered by the Geneva Convention, which could be enforced in a United States federal court. Robertson had conveniently ignored the Supreme Court precedent of Johnson v. Eisentrager (which the current liberal Court majority massaged, in order to reach its conclusion in Rasul), which held that the Geneva Convention, a compact between governments, was not judicially enforceable in a private lawsuit.  Period!

 

Hamdan had made two other arguments.  One was that a particular Army Regulation provided relief for him.  It requires that prisoners receive Geneva Convention protection “until some other legal status is determined by competent authority.”  (Emphasis added)  The Court of Appeals ruled that President Bush was such a competent authority.  To the extent that the Army Regulation requires a “competent tribunal” to determine his status, the Court of Appeals ruled that a military commission is one.  So if the Army Regulation even applies, Hamdan can tell the commission that he should be considered a prisoner of war.

 

Last, and since the Geneva Convention issue appears to be settled, most important both for the War on Terror and the War for the Supreme Court, is Hamdan’s argument that President Bush had no power to constitute military commissions because Article I, Section 8, of the Constitution gives the power to “constitute Tribunals inferior to the Supreme Court” only to Congress.

 

As to this argument, the Court of Appeals ruled, and reminded Judge Robertson, that when President Bush promulgated his order of November 13, 2001, he had relied on various sources of authority: Commander in Chief, the post-9/11 Congressional authorization to use force in the War on Terror, the Articles of War, the World War II cases of Ex parte Quirin and In re Yamashita.  Said the Court of Appeals—said nominee Roberts, by joining the majority opinion—given the foregoing, “It is impossible to see any basis for Hamdan’s claim that Congress has not authorized military commissions”.

 

Although Hamdan v. Rumsfeld has struck an important blow against the War on Terror (and in the process rebuked an obviously Left-wing federal judge), we have not heard the last of the case or the crucially important issues it has raised.  The Court of Appeals for the District of Columbia is only one of thirteen circuit courts, in any of which these same issues can be litigated.  One way or another, they will reach the Supreme Court of the United States. 

 

When they do, the cases will be heard by a newly appointed justice who is not merely the conservative that the President promised, but one who understands the Constitution, the appropriate manner of its interpretation, and, of utmost importance today, the seriousness of our War on Terror.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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