By: Mary Mostert, Analyst, Banner of Liberty (www.bannerofliberty.com)
June 30, 2004
Britain’s left wing Guardian reported Tuesday wrote of the U.S. Supreme Court’s decision in HAMDI et al. v. RUMSFELD, SECRETARY OF DEFENSE:
“Prisoners held at Guantánamo Bay will be able to challenge their detention in the American courts after the US supreme court yesterday curbed the Bush administration's power to deny detainees the right to a lawyer.“By a 6-3 majority, the court rejected the administration's argument that Guantánamo Bay lay outside the jurisdiction of US courts - giving the approximately 600 prisoners, including four Britons, being held at the military prison camp the right to take their cases before an American judge.”
The article refers to John Walker Lindh, born in the United States and captured by the Northern Alliance opponents of the Taliban in the bloody Mazar-e-Sharif prison uprising in December 2001. At the time Lindh, who renamed himself Yaser Esam Hamdi when he converted to Islam, gave an interview with CNN while in a hospital being treated for bullet wounds.
The Guardian reported that interview as follows: “Asked whether he believed the Taliban's 'holy war' against the US was a just cause, the disorientated Californian replied: 'Definitely.' His remarks caused outrage back home, fuelling demands, led by New York mayor Rudy Giuliani, that he be tried for treason - a crime which carries the death penalty.”
Obviously, Julian Borger and Vikram Dodd, the Guardian reporters writing the story yesterday, didn’t read the various decisions handed down by the obviously very conflicted United States Supreme Court. There was no “6-3 decision.” Actually, there were four different decisions. Justice O’Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress properly authorized the detention of combatants in Hamdi’s case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.
Justice Souter, joined by Justice Ginsburg, concluded that Hamdi’s detention was unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant. Justice Scalia, in a dissent, held that
“Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus. A suspension of the writ could, of course, lay down conditions for continued detention, similar to those that today’s opinion prescribes under the Due Process Clause. Cf. Act of Mar. 3, 1863, 12 Stat. 755. But there is a world of difference between the people’s representatives’ determining the need for that suspension (and prescribing the conditions for it), and this Court’s doing so.”
Justice Thomas, in a dissent, stated,
“I conclude that the Government’s detention of Hamdi as an enemy combatant does not violate the Constitution. By detaining Hamdi, the President, in the prosecution of a war and authorized by Congress, has acted well within his authority. Hamdi thereby received all the process to which he was due under the circumstances. I therefore believe that this is no occasion to balance the competing interests, as the plurality unconvincingly attempts to do."
Actually, the decision was 9-2 AGAINST the argument put forward by lawyers for John Walker Lindl/Yaser Esam Hamdi that his imprisonment at Guantanamo Bay after being captured with the Taliban in Afghanistan while fighting against US forces was a violation of both the United States Constitution and International Law. None of the nine Supreme Court Justices agreed with Hamdi’s brief which declared:
“The conflict with the terrorist organization al-Qaeda has no bearing on the termination of the international conflict with the Taliban. Members of al-Qaeda are not recognized as ‘belligerents’ under international law – which is why Respondents (the bush Administration and Secretary of Defense Donald Rumsfeld) refused to find that the Geneva Convention applied to al-Qaeda members.”
Judge Robert Doumar, of the 4th District Court, ruling against the Bush Administration on August 16, 2002, declared:
“Hamdi was originally classified as an enemy combatant by ‘military forces’ based upon his interviews and in light of his association with the Taliban when he was captured by the Northern Alliance.”
Doumar stated that it was “unclear” how the “Northern Alliance differentiated themselves from Taliban forces during the conflict. Was there some garb of each that made identification easy to participants?” Now, I wasn’t present but it occurs to me that perhaps the Northern Alliance allies of the US military suspected Hamdi was a member of the Taliban because he was shooting at them and was WITH the Taliban. Then, of course, the US soldiers heard Hamdi say in an interview with CNN that the Taliban’s effort to kill Americans was a “just cause.”
Doumar held, 228 years after we declared independence from a foreign government, that we must allow Hamdi to roam freely in our midst because no FOREIGN judge has approved US actions to detain him. I suspect if that notion becomes our adopted standard, and it already is accepted by many Bush bashers like Doumar, the next case will be a demand to repeal the Declaration of Independence because the neither King George III or any British judge at the time approved it.
In fact, the Declaration of Independence totally circumvented the king and his courts by claiming that our liberties come from God, instead of the king and his courts. Obviously that notion could never be adopted today in Congress - without a 60% majority. And if the ACLU, Judge Doumar, Supreme Court Justices Souter and Ginsburg ever decide its constitutionality, they just might repeal it.
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To Comment: Mary Mostert