Hamdan v. Rumsfeld

[Roguish Lawyer]

On March 28th, the Supreme Court heard arguments in Hamdan v. Rumsfeld, a case that deals with the President's executive powers during wartime. A decision from the Supreme Court is expected to be issued soon. The Federalist Society presents an exchange on the Hamdan case in the popular 5 Questions format. To access the first two rounds of questions and answers in this exchange, click the link below.

http://www.fed-soc.org/pdf/hamdan.pdf

The remaining three rounds of questions and answers will be posted shortly after the Supreme Court issues its decision.

[vsvo]

Good stuff, thanks RL.

[Roguish Lawyer]

The decision just came down. You can read it here -- it's long:

http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf

[vsvo]

Thanks, RL. This looks like a biggee. I'll read the decision tonight.

[dmgedgoods]

No comment from anybody? This seems like a pretty big deal...

McD

[vsvo]

I read Justice Stevens’ opinion, but have not read the concurring and dissenting opinions. It was a close decision, with Justice Kennedy appearing to be the swing vote and Chief Justice Roberts recusing himself. In addition, it was not a majority opinion, with Justice Stevens announcing the “judgment of the Court” and Justices Breyer and Kennedy writing concurring opinions.

In the Gitmo thread, I mentioned the Steel Seizure case, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In his famous concurrence in this case concerning presidential power, Justice Jackson identified a three category test to measure presidential power:

1) In the face of Congressional authorization, the President’s power is “at its maximum.”
2) In the face of Congressional silence, the President operates within “a zone of twilight.”
3) In the face of Congressional opposition, the President’s power is “at its lowest ebb.”

In the Hamden case, the Court did not reach the question of whether the President has the power to detain enemy combatants at Guantanamo Bay. It also did not address the question of whether the President has the power to establish military commissions in general. The Court found no language or intent within the AUMF or the Detainee Treatment Act of 2005 to expand the President’s power to establish military commissions beyond what was allowed in Article 21 of the UCMJ. Therefore, POTUS has been operating in category 2. Within this twilight zone, the Court stepped in to define some limits. The Court ruled that the administration did not meet the burden of proving that the charge against Hamden, conspiracy, was a war crime; therefore, the military commission established to try him is not allowed under the UCMJ. Furthermore, the Court held that the procedures established for the commissions violated the UCMJ as well as the Geneva Conventions.

Beyond the narrow holding regarding the commissions, this holding is significant as a check on the Executive in time of war. Congress has remained relatively silent as POTUS has carried out the GWOT. The lawmakers appeared to rouse themselves only recently in light of the eavesdropping revelations and the raid on Rep. Jefferson’s office.

The Court also confirmed again that we are at war, noting that “we assume that the AUMF activated the President’s war powers.”

[Ret10Echo]

Judge Rules First Guantanamo War Crimes Trial Can Begin
Thursday , July 17, 2008


The first war crimes trial at Guantanamo Bay can begin Monday, a federal judge has ruled, saying civilian courts should let the military process play out as Congress intended.

U.S. District Judge James Robertson on Thursday rejected an effort by Usama bin Laden's former driver, Salim Hamdan, to postpone his trial. Hamdan argued he would suffer irreparable harm if his was tried before he could challenge the legality of the process.

Robertson's ruling is a victory for the Bush administration, which plans to use the military commission process to prosecute alleged Sept. 11 mastermind Khalid Sheikh Mohammed and others charged in the 2001 attacks.

The administration suffered a setback last month when the Supreme Court ruled the Guantanamo Bay detainees can challenge their detention in federal court. Hamdan's attorneys hoped to use that ruling to delay his trial. But Robertson refused.

"Hamdan is to face a military commission designed by Congress based on guidelines handed down by the Supreme Court," Robertson said.

He said Hamdan can raise any procedural challenges during trial and, if convicted, he can ask military and civilian appeals courts to settle constitutional questions.

Robertson's decision came shortly after a military judge at Guantanamo Bay also denied Hamdan's request for a postponement.

While Robertson stressed that his ruling only affects Hamdan, judges overseeing hundreds of other detainee cases have said they were watching to see how he would handle the case.

The Justice Department argued that prosecuting suspected terrorists is a key part of the war on terrorism, and a necessary step toward closing the Guantanamo Bay prison.

"Putting the military commission proceedings on hold now would be contrary to these interests and hamper the government's war efforts, not to mention constitute a significant intrusion into areas within the province of the executive branch," government attorneys said.

Hamdan's attorneys can appeal the ruling but the U.S. Court of Appeals for the District of Columbia Circuit would have to act quickly to keep the trial from going forward. His attorneys said they had yet to decide whether to appeal.

[Penn]

Bin Laden's Former Driver Sentenced to 5 1/2 Years

Link to story here:
http://www.washingtonpost.com/wp-dyn...l?hpid=topnews


Was Hamdan’s Chauffeuring Really a War Crime?

Possible reason why the sentence was so light here

http://www.propublica.org/article/wa...war-crime-807/


My position is he should have been sentence according to our laws; as outline below.

Federal Criminal Code
(Title 18, United States Code)
1. General Principles of Liability

Part 1 - Crimes
Chapter 1 - General Provisions
§ 2. Principals.
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
§ 3. Accessory after the fact.
Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.
Except as otherwise expressly provided by any Act of Congress, an accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half the maximum fine prescribed for the punishment of the principal, or both; or if the principal is punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years.
§ 4. Misprision of felony.
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.