Team Infidel
Forum Spin Doctor
USA Today
February 25, 2008
Pg. 6
How to handle Sept. 11 prosecutions?
Recent action in three sets of cases against Guantanamo detainees demonstrates the complexities of the alternative legal system the Bush administration created for foreign terrorist suspects.
Two legal challenges are intersecting at the Supreme Court, where the justices on Friday issued an order related to the detainees. A third involves the first criminal charges brought against men accused of murder in connection to the Sept. 11 attacks.
In November 2001, President Bush ordered the creation of special military commissions to hear cases against al-Qaeda suspects and other foreigners captured in connection with the Sept. 11 attacks. The U.S. government soon began transferring terrorist suspects to the U.S. naval base at Guantanamo Bay, Cuba. Over the past six years, Guantanamo detainees have challenged the basis for their detention, the screening procedures used to determine "enemy combatant" status and the commission procedures themselves. Rulings from the Supreme Court on some of these challenges have forced the administration to change its procedures. Numerous legal challenges remain.
USA TODAY's Joan Biskupic looks at three major sets of cases.
How to handle Sept. 11 prosecutions?
Case: Case of Khalid Sheikh Mohammed and five other detainees accused of murder in connection with the Sept. 11 attacks (announced by Pentagon; not yet officially filed)
Legal question: Whether Mohammed, a reputed Sept. 11 mastermind, and the other five men should be prosecuted and convicted in a capital case for murder, conspiracy and other crimes linked to the terrorist attacks.
Latest development: The Department of Defense announced charges against the six men Feb. 11 and plans to seek the death penalty. Judge Susan Crawford, who oversees military tribunals, will determine whether grounds exist to refer the case to a military commission and whether it would warrant the death penalty.
Among the numerous other issues to be addressed as the case moves forward: how interrogations were conducted and whether evidence obtained from torture could be used. The only individual previously charged with a crime related to the Sept. 11 attacks was Zacarias Moussaoui. In a regular federal court proceeding, he was found guilty of conspiracy but not directly linked to the attacks. In 2006, a jury rejected a government request for the death penalty and sentenced Moussaoui to life in prison.
Can Congress prevent challenges to confinement?
Cases: Boumediene v. Bush, Al Odah v. United States
Legal question: Whether Congress can prevent detainees from challenging their confinement in federal court through a writ of habeas corpus. If so, are the panels that determine enemy-combatant status an adequate substitute for a habeas hearing? For centuries in the Anglo-American tradition, prisoners could seek the writ to assert that they should not be locked up. The writ was considered so essential at the nation's founding that the U.S. Constitution limits when it can be suspended.
Latest development: The paired cases were heard at the Supreme Court on Dec. 5. It appeared that the justices were ready to rule that the Guantanamo prisoners have a constitutional right to challenge their confinement in federal court. It was unclear under what procedures or time frame the justices might say that right could be exercised.
A new development in a separate case, Gates v. Bismullah, could complicate resolution of these paired cases. Lawyers for the detainees have urged the justices not to get detoured by the new case and to resolve the detainees' claim that they have a right to challenge their confinement in federal court.
What constitutes an enemy combatant?
Case: Gates v. Bismullah
Legal question: What evidence must the government produce when a detainee appeals an enemy-combatant determination, and the government seeks to defend that determination. Such appeals go exclusively to the U.S. Court of Appeals for the District of Columbia Circuit. For several years, the court has tried to iron out procedures for handling detainees and has numerous appeals of enemy-combatant designations pending.
Latest development: The U.S. Supreme Court issued an order Friday setting a schedule for the Bush administration's appeal of a D.C. Circuit decision in the matter. The lower court, in a decision last July, said that when it reviews an enemy designation it should have access to all the government information collected on a detainee, "regardless of whether it was all put before the tribunal." The D.C. Circuit had said it needed to look comprehensively at all of the government information to properly assess whether the correct decision was made at Guantanamo. The government contends that ruling would put too great a burden on it and that it would undermine national security because enemy determinations are based partly on classified information.
In a petition to the Supreme Court, U.S. Solicitor General Paul Clement told the justices that the evidence demanded by the D.C. Circuit would force "the government either to engage in a massive and practically infeasible attempt to re-create" information gathered years earlier or to conduct a new set of hearings for scores of detainees. Clement urged the justices either to accept the Bismullah case for a swift review by summer or to defer action until the court decides in the pending Boumediene and Al Odah the breadth of Guantanamo prisoners' rights. The Supreme Court's order Friday requires all filings related to the administration's petition to be presented by March 11. The justices will probably announce later that month whether they will hear the case.
Major Supreme Court Guantanamo cases decided to date
*Rasul v. Bush (2004) declaring that a long-standing federal law gives Guantanamo detainees access to courts to challenge their imprisonment (Congress then changed the law, resulting in the Boumediene and Al Odah cases before the court).
*Hamdi v. Rumsfeld (2004) ruling that U.S. citizens who become terrorist suspects and are designated enemy combatants must receive a hearing on the accusations and evidence.
*Hamdan v. Rumsfeld (2006) finding that President Bush lacked the power to set up military tribunals without Congress' authorization and that the administration's initial procedures fail to meet standards of the U.S. Military Code of Justice and Geneva Conventions intended to protect prisoners of war.
February 25, 2008
Pg. 6
How to handle Sept. 11 prosecutions?
Recent action in three sets of cases against Guantanamo detainees demonstrates the complexities of the alternative legal system the Bush administration created for foreign terrorist suspects.
Two legal challenges are intersecting at the Supreme Court, where the justices on Friday issued an order related to the detainees. A third involves the first criminal charges brought against men accused of murder in connection to the Sept. 11 attacks.
In November 2001, President Bush ordered the creation of special military commissions to hear cases against al-Qaeda suspects and other foreigners captured in connection with the Sept. 11 attacks. The U.S. government soon began transferring terrorist suspects to the U.S. naval base at Guantanamo Bay, Cuba. Over the past six years, Guantanamo detainees have challenged the basis for their detention, the screening procedures used to determine "enemy combatant" status and the commission procedures themselves. Rulings from the Supreme Court on some of these challenges have forced the administration to change its procedures. Numerous legal challenges remain.
USA TODAY's Joan Biskupic looks at three major sets of cases.
How to handle Sept. 11 prosecutions?
Case: Case of Khalid Sheikh Mohammed and five other detainees accused of murder in connection with the Sept. 11 attacks (announced by Pentagon; not yet officially filed)
Legal question: Whether Mohammed, a reputed Sept. 11 mastermind, and the other five men should be prosecuted and convicted in a capital case for murder, conspiracy and other crimes linked to the terrorist attacks.
Latest development: The Department of Defense announced charges against the six men Feb. 11 and plans to seek the death penalty. Judge Susan Crawford, who oversees military tribunals, will determine whether grounds exist to refer the case to a military commission and whether it would warrant the death penalty.
Among the numerous other issues to be addressed as the case moves forward: how interrogations were conducted and whether evidence obtained from torture could be used. The only individual previously charged with a crime related to the Sept. 11 attacks was Zacarias Moussaoui. In a regular federal court proceeding, he was found guilty of conspiracy but not directly linked to the attacks. In 2006, a jury rejected a government request for the death penalty and sentenced Moussaoui to life in prison.
Can Congress prevent challenges to confinement?
Cases: Boumediene v. Bush, Al Odah v. United States
Legal question: Whether Congress can prevent detainees from challenging their confinement in federal court through a writ of habeas corpus. If so, are the panels that determine enemy-combatant status an adequate substitute for a habeas hearing? For centuries in the Anglo-American tradition, prisoners could seek the writ to assert that they should not be locked up. The writ was considered so essential at the nation's founding that the U.S. Constitution limits when it can be suspended.
Latest development: The paired cases were heard at the Supreme Court on Dec. 5. It appeared that the justices were ready to rule that the Guantanamo prisoners have a constitutional right to challenge their confinement in federal court. It was unclear under what procedures or time frame the justices might say that right could be exercised.
A new development in a separate case, Gates v. Bismullah, could complicate resolution of these paired cases. Lawyers for the detainees have urged the justices not to get detoured by the new case and to resolve the detainees' claim that they have a right to challenge their confinement in federal court.
What constitutes an enemy combatant?
Case: Gates v. Bismullah
Legal question: What evidence must the government produce when a detainee appeals an enemy-combatant determination, and the government seeks to defend that determination. Such appeals go exclusively to the U.S. Court of Appeals for the District of Columbia Circuit. For several years, the court has tried to iron out procedures for handling detainees and has numerous appeals of enemy-combatant designations pending.
Latest development: The U.S. Supreme Court issued an order Friday setting a schedule for the Bush administration's appeal of a D.C. Circuit decision in the matter. The lower court, in a decision last July, said that when it reviews an enemy designation it should have access to all the government information collected on a detainee, "regardless of whether it was all put before the tribunal." The D.C. Circuit had said it needed to look comprehensively at all of the government information to properly assess whether the correct decision was made at Guantanamo. The government contends that ruling would put too great a burden on it and that it would undermine national security because enemy determinations are based partly on classified information.
In a petition to the Supreme Court, U.S. Solicitor General Paul Clement told the justices that the evidence demanded by the D.C. Circuit would force "the government either to engage in a massive and practically infeasible attempt to re-create" information gathered years earlier or to conduct a new set of hearings for scores of detainees. Clement urged the justices either to accept the Bismullah case for a swift review by summer or to defer action until the court decides in the pending Boumediene and Al Odah the breadth of Guantanamo prisoners' rights. The Supreme Court's order Friday requires all filings related to the administration's petition to be presented by March 11. The justices will probably announce later that month whether they will hear the case.
Major Supreme Court Guantanamo cases decided to date
*Rasul v. Bush (2004) declaring that a long-standing federal law gives Guantanamo detainees access to courts to challenge their imprisonment (Congress then changed the law, resulting in the Boumediene and Al Odah cases before the court).
*Hamdi v. Rumsfeld (2004) ruling that U.S. citizens who become terrorist suspects and are designated enemy combatants must receive a hearing on the accusations and evidence.
*Hamdan v. Rumsfeld (2006) finding that President Bush lacked the power to set up military tribunals without Congress' authorization and that the administration's initial procedures fail to meet standards of the U.S. Military Code of Justice and Geneva Conventions intended to protect prisoners of war.