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Roger Fitch Esq
10 October, 2005  
Our Man in Washington

There are a variety of cases brought by “enemy combatants” running through the US courts right now. They could be a means for Republican judges to remodel the constitution in favour of absolute executive power. No wonder Bush just loves a continuing state of war


By now it should be abundantly clear that the Bush administration is trying to systematically break down constitutional rights of US citizens, not to mention aliens in the US. It’s those rights that are “tying the president’s hands” in the soi disant “war on terror”.

imageThis dismantling is an excuse for the concentration of national security – read police state – powers in the president that would be called dictatorial anywhere else and arguably would not even be possible in the US without a claim for a continuing state of war.

Numerous constitutional rights test cases are making their way up through the courts of the US. At least four variants have emerged for the Bush administration’s remodelling of the US Constitution, a redraft designed to provide a “bill of rights” for the 21st century that favours absolute executive power in the President of the US.

It’s not unlike what is happening in Britain, but at least there the government is subject to European human rights oversight.

Most of the cases have sought to eliminate habeas corpus through the transfer of defendants from traditional civilian or military court jurisdiction into an ad hoc “presidential” military system of detentions and commissions cobbled out of so-called war powers.

There are quite separate military commissions that have been authorised by the Congress in the Uniform Code of Military Justice, and they provide substantive rights to defendants and must conform to the rights provided in courts martial. Those commissions are anathema to the Bush crowd, who prefer the military law of, say, 1945.

The various detainee cases now in the court system could be classified in the following way: Citizen as Enemy Abroad (Hamdi), Citizen or Alien in the US (Padilla, Al-Marri), Foreign Enemy (Rasul, Al Odah, Hamdan, Hicks) and American ‘Behaving Badly’ Abroad (Abu Ali, a case that involves evading habeas for an American citizen held overseas at US request).

Many of these cases are going through the courts for the second time. That’s a result of the Justice Department’s unprecedented decision to essentially ignore the June 2004 Supreme Court decisions against the government in Hamdi, Rasul (David Hicks) and Padilla.

In doing so the DoJ is forcing the prisoners of George W. Bush to re-litigate nearly all of the issues in their cases, even those that were clearly settled by the Supreme Court, including the substantive jurisdiction of the courts to hear habeas petitions and act upon them.

Sometimes – as in Hamdan and Padilla – what appear to be rogue court of appeals panels have gone along with the most extreme arguments of the government. The same thing may yet happen in Al Odah (ie, Hicks), the successor case to Rasul, which was argued on September 8 before the DC Court of Appeals.

In each case – Padilla, Hamdan, Al Odah – the petitioners won in the District Court, two of them on remand from the Supreme Court decisions of June. What the Supreme Court, with a changed composition, will do on the present appeals of these extraordinary cases is anybody’s guess.

Perhaps the government strategy of re-litigating will pay off, what with two new Bush-appointed justices.

At the moment the lead case in all of this groundbreaking litigation is that of Salim Hamdan, a Yemeni national accused of being (shudder) Osama bin Laden’s driver and sometime bodyguard.

Hamdan was always the Pentagon’s preferred vehicle for its novel (or rather, archaic) theories of the law of war – even if charging a civilian chauffeur as a “war criminal” seems on its face preposterous.

David Hicks’ case was always dodgy, as he fought for the Taliban, the legitimate government of Afghanistan, quite legally under domestic Australian law and international humanitarian law. He seems almost certainly to have been a privileged belligerent, entitled prima facie to prisoner of war status under the Geneva conventions, regardless of whether he had previously trained in small arms under the auspices of bin Laden.

How different his case might be had he attended a National Rifle Association-sponsored shooting range here in the US.

In any case, it is becoming increasingly evident from the statements of Australian ministers that David Hicks was only charged in the “presidential” military commissions at the Howard government’s insistence, for domestic political purposes. As Hicks’ case is going nowhere fast it is a decision that brings with it a fair share of embarrassment.

At some point, I suspect Howard’s government is going to “cut and run”, perhaps by using – behind the scenes and fully denied, of course – the good offices of your British allies. A timely UK intervention after a fast-tracked grant of British citizenship should provide a convenient outer for a political blunder.

The Hamdan case was on the Supreme Court’s docket last Friday, October 7, to consider whether certiorari should be granted. The Chief Justice will most likely not be participating, since he was a member of the three-judge Court of Appeals panel that reversed the District Court’s finding that the presidential military commissions were unlawful.

A good summary of the issues raised in the Hamdan case may be found in a newly-posted “email interview” conducted by the Talking Dog website with Neal Katyal, the lead counsel for Hamdan in the DC civil court proceedings.

It includes links to the earlier Hamdan decisions and also to this earlier interview with Joshua Dratel, the lead civilian counsel for Hicks.

As we say so frequently here, “Enjoy”.