"Could" covers a lot of territory. The USSC ruling essentially says that the detainees are entitled to the same due process accorded to any other U.S. Military person, because the court ruled that all U.S military courts must be as procedurally "uniform as practicable. It also said that if the President does not treat the detainees in accord with Geneva Convention Common Article 3, that the President would be liable for a "war crime," under Title 10 U.S.C. 2441(c)(3). This is why the USSC opinion characterizes the military tribunals as "illegal," rather than unconstitutional. It's a veiled message that if the President were to ignore the Court, he could very easily be impeached for something rather more significant than breaking into the Watergate or perjury in the Paula Jones civil suit. There is also a message in this for persons other than the President: a person who encourages the President to ignore the USSC ruling is subject to criminal liability for a war crime, exactly as if that person were to have committed the crime him/herself. This is criminal law 101: a person who aids, abets, encourages or assists in the commission of a crime is liable as a principal. In short, Ann Coulter (and others) may want to watch her ass, because she ain't the Pres and she doesn't need to be impeached before she can be prosecuted for a crime. Back to your question. Unfortunately for the detainees, the USSC's decision yesterday does not require that the detainees be tried or released. A Habeas Corpus petition can be stayed until "hostilities have ceased." And, as we all know, this "war" with al-Queda will never end, because the enemy is amorphous both in identity and location. So, under the working legal theory, the detainees can be held forever without trial, unless it is determined by another USSC ruling that Geneva Code Common Article 3 requires that they be tried or release on grounds that to not do so violates the due process "guarantees ... recognized as indispensable by civilized peoples." Furthermore, the USSC decision was basically a one vote victory, and Justice Stevens is 86 years old. So if his ticket expires while George Bush is President, then there is an excellent chance that the USSC will be moved further into the "President can do whatever he wants" camp, and the Hamdan decision will be reversed. I find this an extremely likely probability. Old people die everyday without warning. As for Congress, it cannot very easily dispense with the Geneva Convention Treaty (it could, but the consequences to U.S. status in the World would be devastating), but it can certainly modify the UCMJ to give the President the latitude to try the detainees under the President's rules, by changing just a few words in the current statute. At present, whether the military commissions and courts-martial are as "uniform as practicable" is an objective standard. By changing the statute so that the standard is based on what "the President deems practicable," it would place the military commissions beyond the reach of the USSC, except where the commissions were so outside the bounds of law, that no civilized nation would find the trial procedures acceptable. So, in the end, the ruling is both strong and weak, It's strong because it basically says, "Mr. President, what you are doing with the detainees is a war crime." And, it's weak, because as long as the Congress maintains a Republican majority in at least one chamber, President Bush is safe from ouster from office for just about anything less than taking a gun and shooting one of the detainees in cold blood (ed. op.). We live in very strange times.
kent, Even though you're a lawyer, you seem pretty reasonable. What do you honestly think is reasonable for adjudicating these detainees' status? I think in principle there are of course worries about secret evidence and other due process issues, but we are dealing with an ongoing hostility against a worldwide albeit stateless entity. Surely disclosure of ongoing methods of intelligence gathering or the fruits of such inteligence is problematic, as is anything that creates a risk of disclosing the identities of people who may be subject to retaliation. It's bad enough that the NY Times claims a constitutional right to disclose that kind of material. Keeping in mind that these detainees are not being tried for a crime but merely having the ground for their detention adjudicated, what is fair? Does the government have to provide them with non-military counsel? Does it have to pay for private investigators? Should they be able to subpoena witnesses? Should they be able to drag in the troops who captured them and cross examine them, even if they are no longer in the military or if they're in a combat zone? Do they have the right to know the names and personal details of those who are accusing them, ie their captors?
Thank you for the back handed compliment. I think an appropriate response to your opening statment is: "Even though you're not a lawyer, you seem pretty reasonable." Civil Grand Juries examine and deliberate in secret every day, and they have little trouble keeping their collective silence about the subject matter of their deliberations -- even when the issues comprise organized crime, racketeering, drug rings, extortion, antitrust law, political bribery, serial murder, etc. Thus, the President's position that only a commission composed of members of the Military is suitable to determine the existence of probable cause to try a Guantanamo Bay detainee is really nothing more than the traditional act of the authoritarian, who seeks to maintain absolute authority, without independent review. It would not be unreasonably difficult for a government who actually gave a rat about due process to form a civilian Grand Jury from ordinary citizens who have successfully obtained an FBI Top Secret security clearance. But, the government, and its supporters would never consider such a move. Why? Because it doesn't want to submit to any independent review. The government will say that only military persons are qualified to review probable cause of a purported member of a terrorist organization with which we are at war. My response is simply: horse manure. There is nothing substantially different between what al-Queda is doing today, and what the Italian Mafia has done for the past 100 years, EXCEPT, that the Mafia's prime interest was in making money, whereas al-Queda is interested in promoting religion (and making money). An ordinary probable cause hearing could be accomplished by finding/creating a representative group of citizens with high security clearances, and using them as the courtroom audience to ensure that the proceedings were being handled without deception. Same goes for a trial. There are all sorts of creative ways that a reasonable trial judge could ensure security and yet provide a jury of 12 with the objective facts of the case against any one of the detainees. You think a pool of press members could not be constituted for the purpose of viewing the proceedings so as to ensure their fairness, with a promise to not release any information to the public except by unanimous vote of the press pool (or some other high degree of oversight, like consent from the presiding judge, etc.). More expensive than an ordinary federal court action? Assuredly. Unusual? You bet. Fair? A hell of a lot more fair than what we've been doing by light years. And, we can afford it. It's chump change in comparison to the cost of the horseshit that the government is actually doing to try to keep the process completely within the scope of the Executive Branch. As for dragging troops off the battlefield to confront the accused, what of it? Military Courts are required to do this routinely. I find absolutely nothing that warrants the sort of secrecy that the government believes is so necessary to these proceedings. The blunt fact is that there are a few hundred people who have been summarily determined to be a danger to the U.S., and those people have been held without due process for the past 3-4 years. And, the only reason is, because our Mr. President and his staff wants to show its ass at the rest of the world. Well, I'm not impressed. The ass is way too hairy for my taste.