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Supreme Court Hears Hamdan Arguments

The Supreme Court heard oral arguments today in the case of Salim Ahmed Hamdan, a Guantanamo detainee who was a chauffer for Osama bin Laden.

Justices Antonin Scalia and Samuel Alito, the newest member of the court, pressed [defense lawyer] Katyal to explain why a defendant before a military commission should be given something that defendants in civilian criminal trials normally don't get -- the chance to challenge the case before a verdict is reached.

"If this were like a (civilian) criminal proceeding, we wouldn't be here," Katyal said.

.... Alito also suggested the justices should wait until Hamdan's trial is over to allow him to question whether charging him with conspiracy violates the laws of war, as Katyal contends.

But Katyal brushed aside the contention. "The government has had four years to get their charges together on Mr. Hamdan," he said.

Scotus Blog, whose firm is co-counsel for Hamden, recaps the hearing and has analysis. They thought it went pretty well, and that Justice Kennedy will be a crucial vote. On whole:

There were a number of comments or questions indicating that the detainees may well be able to draw the votes of Justices Breyer, Souter, Ruth Bader Ginsburg and John Paul Stevens. There was no doubt whatsoever that Justice Scalia (whose recusal had been suggested by some amici, troubled over public statements he made about detainees' rights) would line up definitely on the side of the "commissions" in their present form. Justice Samuel A. Alito, Jr., through a few questions, seemed to be sending a message that he was inclined to allow the "commissions" to go forward with trials, leaving any challenges until after convictions, if any, emerged. Justice Clarence Thomas said nothing, but he has been, in the past, the Court's most fervent supporter of presidential wartime powers.

The overall tone of the hearings seemed significantly in favor of the challenge to the new tribunals. Solicitor General Paul D. Clement seemed more challenged than is customary for him; indeed, at times he appeared genuinely relieved at the help Justice Scalia provided for his argument. He rushed to embrace Scalia's points as if they were stronger than his own.

Here is a new article on the case, written by Hamden's lawyer, Neal Kaytal. And a Slate article written by a Yale law student who worked as a law clerk for the defense on the case.

The ACLU's statement is here. They explain what's at stake here.

TChris and Last Night in Little Rock weigh in here.

The case is Hamdan v. Rumsfeld, 05-184.

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    Re: Supreme Court Hears Hamdan Arguments (none / 0) (#2)
    by squeaky on Tue Mar 28, 2006 at 12:18:10 PM EST
    If they aren't plagiarising, they're lying. If they aren't lying they're cooking the record. If they can't win, they cheat.
    digby
    Republican Senators Lindsey Graham and John Kyl have filed an amicus brief with the Court. This amicus brief argues that the legislative history of the DTA supports the Government's position. Specifically, the brief cites a lengthy colloquy between Senators Kyl and Graham themselves which purportly took place during a Senate floor debate just prior to passage of the bill.
    Emphasis mine. link via atrios Kyl and Graham are lying and fabricated the Senate floor debate. It never happened.

    Re: Supreme Court Hears Hamdan Arguments (none / 0) (#3)
    by Talkleft Visitor on Tue Mar 28, 2006 at 12:34:54 PM EST
    Narius... Is there any reason to give him a civilian trial? Yes...so lawyers can get rich & famous! Funny how the libs talk down on big business making money but aren't afraid of lining their own pockets. It's all about grandstanding....

    Re: Supreme Court Hears Hamdan Arguments (none / 0) (#4)
    by Talkleft Visitor on Tue Mar 28, 2006 at 02:27:28 PM EST
    He isn't asking for a civilian trial. He is asking for a court-martial under offenses recognized as being contrary to the laws of war, in the event that he is properly detained at all. Prior to that, he asks that he be granted the review of his status as POW or civilian, that the Geneva Convention requires, and argues that the scheme the administration has put in place doesn't meet that standard. Only in the absence of a valid tribunal to decide that issue does he turn the Article III courts as a last resort. This is not a request for a full fledged jury trial.

    Re: Supreme Court Hears Hamdan Arguments (none / 0) (#5)
    by Talkleft Visitor on Tue Mar 28, 2006 at 03:28:29 PM EST
    Posted by BB March 28, 2006 01:34 PM Narius... Is there any reason to give him a civilian trial?
    Yes...so lawyers can get rich & famous! Funny how the libs talk down on big business making money but aren't afraid of lining their own pockets. It's all about grandstanding....
    Nah, but it's about tryin' to change the subject into somethin' it's not when ya haven't got a prayer, a case or a leg to stand on. Or in this particular instance, a really lame attempt to do so, bb. Show me where he asks for a "civilian trial". Show me where any lawyer "runs down big business making money or does any grandstanding". That's what I thought. The only buy the numbers, predictable nonsense I see is you pretendin' to have the slightest idea just what the hell you're talkin' about.

    Re: Supreme Court Hears Hamdan Arguments (none / 0) (#6)
    by Sailor on Tue Mar 28, 2006 at 03:39:52 PM EST
    He is obviously NOT on US soil.
    He is on soil rented/controlled by the US.
    He is a terrorist with close ties to Osama Bin Laden,
    He was a driver. Is the best bushco can do is find a chauffeur and not OBL?
    Is there any reason to give him a civilian trial?
    No one, including his lawyers, suggested that. Bushco insists that he doesn't deserve a military trial, civilian trial, GenCon trial; bushco insists that ONLY bush has the final say. That's called a 'dictatorship.'

    Re: Supreme Court Hears Hamdan Arguments (none / 0) (#8)
    by Dadler on Tue Mar 28, 2006 at 05:29:08 PM EST
    narius, So we are to kill "them" all now and ask questions later? And you trust without a doubt the "process" that defines who "them" is and what they are guilty of? In this "new war" where the lack of uniforms makes identifying the enemy that much MORE difficult? Your logic escapes me. If genuinely identifying the enemy is that much harder, an even MORE rigorous examination of these detainees' situations would seem to be in order. The less we know, the more we lose.

    Re: Supreme Court Hears Hamdan Arguments (none / 0) (#10)
    by Talkleft Visitor on Tue Mar 28, 2006 at 07:37:43 PM EST
    Every account of the oral argument that I could find is highlighted at http://washparkprophet.blogspot.com/2006/03/hamdan-oral-argument.html

    Re: Supreme Court Hears Hamdan Arguments (none / 0) (#11)
    by Che's Lounge on Tue Mar 28, 2006 at 11:18:35 PM EST
    Nariusynapse, What a joke the Neuremburg courts would have been if they tried to hang Hitler's driver. I guess the joke's on us.

    Re: Supreme Court Hears Hamdan Arguments (none / 0) (#12)
    by Dadler on Wed Mar 29, 2006 at 11:00:16 AM EST
    narius, You wrote He is a terrorist with close ties to Osama Bin Laden, so he is NOT a civilian. That is the essence of the "them" mentality. Let him rot because he MUST be a terrorist, because because being a chaffeur is the same as being the terrorist himself. I'd rather act like the just and free country we claim to be, by giving this guy a just and free hearing. Would you have advocated life in prison for the schlub who got assigned the job of carting Hitler around in his Duesenberg?