Analysis: The Terror War's Legal Front
Council on Foreign Relations
March 27, 2006
Prepared by: Eben Kaplan
Of all the battles the Bush administration has waged throughout its "war on terrorism," those fought on the legal front are probably among the most vexing. The outcome of the Hamdan v. Rumsfeld case, which the Supreme Court takes up this week, could lessen the administration's legal burdens, or multiply them. At issue is a lawsuit filed by lawyers for Guantanamo Bay detainee Salim Ahmed Hamdan (Trial Watch) that challenges his designation for trial before a military commission. Hamdan, who served as driver for al-Qaeda leader Osama Bin Laden, is charged with conspiring to commit acts of terrorism. His lawyers contend conspiracy, the same charge leveled against Zacarias Moussaoui, is not a war crime and the case should be tried in civilian court. But the bigger question, as explained by the New York Times, is whether "to police the president's ability to make war or to allow executive authority to go unchecked."
In trying to answer this question, the justices must decide whether they still have jurisdiction to consider the case (NYT). After the Court's decision in November to hear Hamdan's appeal, Congress passed the Detainee Treatment Act, which denies Guantanamo Bay detainees access to the U.S. legal system. The Court must determine whether this ban applies only to future appeals or if it extends to the approximately 150 cases currently working their way through the lower courts. Meanwhile, proceedings are continuing before the same military commissions whose legality is being challenged (Amnesty).
Read the rest of this article on the cfr.org website.
Copyright 2006 by the Council on Foreign Relations. This material is republished on GlobalSecurity.org with specific permission from the cfr.org. Reprint and republication queries for this article should be directed to cfr.org.
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