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Tragic High Court Buck-Passing

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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May 1, 2007

The Supreme Court, by a vote of 6-3 (the same line-up that refused in February to hear a constitutional challenge to the habeas provision in the MCA), refused to hear a plea by alleged Bin Laden driver Salim Ahmed Hamdan and Canadian national Omar Khadr, aged 15 at the time of his alleged offense, for the Court to examine the constitutionality of the system.With their hands off, the Court has now paved the way for the military commission of these two men, the second and third to have their guilt or innocence weighed in the actual commission process. The first was David Hicks, who, through a plea agreement where he agreed to not say an ill word about his Gitmo stay, got nine months. Obviously, the Hicks case was dispensed without the Kabuki theater of an actual commission, so we have yet to see what these things are going to look like.Justices Ginsburg, Souter and Breyer would have immediately granted the Khadr/Hamdan petition.So, what does this mean? Effectively, barring some Congressional action, it means the military commissions—with their looser evidentiary standards, use of secret evidence, blatant military command influence and limited appeals—will have their first bona fide defendants in the dock. Hamdan lawyer and G-town law prof, Neal Katyal, put it nicely in Congressional testimony last week:

The eyes of the world will be on these trials, and it will be extremely detrimental for them to take place in the legal vacuum created by this administration at Guantánamo.

As an incidental link, the LA Times also has an editorial questioning the asserted justification behind the Pentagon/Justice Department assault on Gitmo lawyers:

Officials at Guantanamo have a right and responsibility to maintain discipline. But, as the president of the New York City Bar Assn. pointed out in a letter to Atty. Gen. Alberto R. Gonzales, there is another explanation for hunger strikes and other unrest at Guantanamo: Many detainees have been held in solitary confinement and haven’t received a meaningful opportunity to assert their innocence. In many respects, Guantanamo is still a legal black hole.

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