GITMO ruling equals minor change in procedure once GOP Congress affirms

[papau]

"...government must offer more due process than what Hamdi has received so far, but substantially less than he would get as a criminal defendant in a civilian court."

USSC opinion: "...a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker..."


http://www.slate.com/id/2103112/

Taking It to the Trenches
What the Supreme Court's terrorism decisions will mean for the war effort.
By Phillip Carter
Posted Tuesday, June 29, 2004, at 4:35 PM ET

<snip>But for the U.S. military and intelligence personnel now fighting the war on terrorism, these decisions also have important and more immediate repercussions. The court's omissions are almost as vital as what it did. The decisions did not substantially impinge on the president's actual powers to wage war or on the military's right to take prisoners during war. But the court did speak to the kinds of procedures necessary to lawfully hold combatants. By levying procedural due-process requirements on the government in Hamdi, the court likely created new requirements for soldiers in the field when they detain prisoners. It also may have fundamentally changed the way our nation gathers intelligence in the war on terrorism. And by opening the federal courts to the Guantanamo detainees, the high court may have altered the nature of U.S. detention operations—and created a new means of resistance for detainees in U.S. captivity.

<snip>The president's power to wage war was not itself at issue in any of this week's Supreme Court decisions. But the power to detain prisoners is a subset of those powers—and ultimately of the larger power to kill in wartime—so it was something the court could have touched upon if it chose to. In its Hamdi decision (the most important of the three), the Supreme Court all but affirmed the use of force by the president since Sept. 11, saying that Congress' resolution from Sept. 18, 2001, provided both the explicit power to wage war and the "explicit congressional authorization for the detention of individuals in the narrow category we describe." At the end of the day, the White House emerged with its broad war powers intact, including the power to take prisoners on the battlefield, so long as it acts with the authorization of Congress.

<snip>One operational implication from this ruling is that soldiers in the field will need to become substantially more diligent about their actions at the "point of capture" than they have been. When military personnel capture someone now, they are supposed to fill out a short form with tiny boxes for "date and time of capture" and "description of weapons, special equipment, documents." Additionally, prisoners are generally interrogated when captured, in the hopes that they will provide valuable battlefield intelligence. It's not clear whether these measures will create enough of an evidentiary record to satisfy the kind of process envisioned by Justice Sandra Day O'Connor in the Hamdi decision. If they don't, the military will need to develop some new mechanism for gathering evidence, such as the creation of special Judge Advocate General teams whose sole job is to interview soldiers after they capture detainees, in order to create an evidentiary record for future detention hearings.

Justice O'Connor's opinion in Hamdi also may have imposed a substantial limit on the reasons a detainee can be held, in addition to the requirements for due process. The Bush administration vociferously argued that it needed the power to detain combatants to gather intelligence about future terrorist operations—indeed, that detainee interrogations were one of its best tools in this shadowy war on terrorism. The court tackled that argument obliquely: "The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again," O'Connor wrote, adding later that "Hamdi contends that the does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized." The operational implication from this language isn't altogether clear, because the court didn't specify just how much detention it would allow for the purpose of interrogation. One indicator of how the court might see this issue comes from Justice Anthony Kennedy's concurrence in Rasul, where he wrote that "as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker." Still, it's not clear whether the courts will find that all protections afforded in Hamdi will automatically be offered to the Guantanamo detainees.<snip>

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"Bob Ayers, a homeland security and intelligence expert at Chatham House, predicted the ruling will have little impact."

http://www.guardian.co.uk/worldlatest/story/0,,-5921854,00.html

Some saw the beginning of the end for Guantanamo Bay, others a vindication for Europeans who have condemned the U.S. prison camp. Still others saw a toothless ruling that will ultimately make no difference in a climate where they believe Washington is determined to have its way.

The U.S. Supreme Court's ruling Thursday that President Bush overstepped his authority in ordering military trials for a handful of Guantanamo Bay detainees provoked a range of reactions, from jubilation to deep skepticism.

In immediate terms, the decision will simply force the United States to look for other ways to try some 10 men charged with crimes. But some people saw wider implications - predicting it could force the Bush administration to address the continued detention of about 430 others, many held for more than four years without charge.

``A lot of us remain skeptical of what this decision will actually accomplish because it only applies to the handful of men who have been charged and Bush has not respected past court decisions,'' said Moazamm Begg, 37, who was held at Guantanamo for more than two years. ``That said, I'm very glad to hear the news and hope it will be the beginning of the end for many of these men.''
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http://www.theage.com.au/news/World/Hicks-court-victory-may-be-short-lived/2006/06/30/1151174359769.html

Hicks' court victory may be short lived

Accused Australian terrorist David Hicks and other Guantanamo Bay inmates scored a major victory in America's highest court but their joy could be short-lived.

<snip>However, soon after the court revealed its decision, US President George W Bush and other US government officials hinted they would go to the US Congress to remedy the concerns raised by the Supreme Court.

If successful, Hicks and other Guantanamo inmates could still face the military commissions.<snip>

The US government maintained the right to hold "enemy combatants" such as Hicks for as long as deemed necessary.

The Supreme Court decision also would not force the Guantanamo Bay prison to be shut down.<snip>

Hicks's lawyers have argued the court martial and civilian court systems will offer Hicks a better chance of acquittal as the military commissions were "rigged".<snip>