On Friday, the Supreme Court turned its attention to the case of Salim Ahmed Hamdan, charged with being the driver for Osama bin Laden. He denies participating in terrorist attacks but admits to being bin Laden’s driver. He has questioned the legality of his detention and his trial by the first special military tribunal at Guantanamo.
The US District Court ruled on 8 November 2004 that:
[U]nless and until a competent tribunal determines that Hamdan is not entitled to POW status, he may be tried for the offenses with which he is charged only by courtmartial under the Uniform Code of Military Justice.
The ruling was overturned on appeal. After the Supreme Court agreed to hear his case, Congress passed and Bush signed the Detainee Treatment Act on 30 December 2005; it “[strips] the federal courts of jurisdiction to hear pretrial appeals in Guantánamo cases.” It was part of the Defense Appropriations bill.[ADBLOCKHERE]
In a closed-door session, the Bush Administration will argue for dismissal of the case. The Department of Justice argues that “the Constitution does not guarantee aliens held abroad a right to habeas corpus.” In 2004, the Supreme Court rejected the argument that “federal courts have no jurisdiction to hear habeas corpus petitions from persons detained at Guantanamo Bay” in Rasul v Bush, according to FindLaw.
FindLaw continues: “Moreover, the Court said, even if the habeas statute were to be read to have no extraterritorial application, given the fact of U.S. control, the Guantanamo Bay Naval Base should be deemed, in effect, U.S. territory.”
Congress does have the power to suspend habeas corpus during wartime. Can it be suspended retroactively? Can it be suspended when there is no formal declaration of war?
The BBC has a Q&A on the Guantanamo hearings.
In other “terrorist” news, a Federal judge in Miami denied bail to Jose Padilla. “Prosecutors point to Padilla’s violent criminal record, ‘including multiple bond jumps,’ and his alleged association with al Qaeda.”
However, he is not charged with being a terrorist or with any involvement in a domestric terrorist plot. Instread, he is charged with “conspir[ing] to murder, kidnap and maim people overseas.”
Padilla sat in a U.S. Navy brig in Charleston, South Carolina, for more than three years, as court-appointed attorneys in New York and South Carolina challenged his detention all the way to the Supreme Court.
Prosecutors obtained an indictment in Miami on November 17, just one week before a deadline to reply to Padilla’s latest high court petition.
Last year a federal judge in South Carolina ruled the president does not have legal authority to indefinitely detain a U.S. citizen arrested on U.S. soil without charges. But an appeals court in Virginia overruled, prompting a petition to the Supreme Court that justices are still considering.
This article first appeared at US Politics @ About.com.