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ORIGINAL FRENCH ARTICLE: George W. Bush en difficulté à la Cour suprême

by By Jacques Coubard

United States: George W Bush’s Policy Ailing at the Supreme Court

Translated by John O’Neil

Translated Thursday 20 April 2006, by John O’Neil

Has Bush violated both the US Constitution and the Geneva Conventions by refusing to bring Guantanamo detainees before the US courts, instead having them convicted by military war tribunals? On 28 March, attorneys for Salim Ahmed Hamdan, who was Osama bin Laden’s driver, and for nine other detainees in the US prison camp, argued this question before the Supreme Court.

Five of the eight justices undermined solicitor general Paul Clement’s arguments, which are based on a law passed three days after the attack on the World Trade Center instituting military commissions charged with trying the "enemy combatants", even sentencing them to death. According to Clement’s argument, Bush was acting as commander in chief, a role the US Constitution confers on the President.

Justice Anthony Kennedy replied : the application of this law must be caried out in accordance with the Geneva Convention regarding the treatment of prisoners of war. Other justices pointed out that habeas corpus appeals must be observed. Habeas corpus is a British law taken up in the US Constitution authorizing any detainee to petition to go before a court. They pointed out the only known exception was made by President Lincoln during the Civil War. The Guantanamo prisoners would thus be justified to ask not to go before special military tribunals.

In this legal battle,which lasted only 90 minutes, the representative of the White House made the point that the Congress had adopted in 2005 an amendment restricting the rights of the Guantanamo prisoners.

But, since the hearing, several newspapers have examined the transcripts of the proceedings and have noted that none of the expressed opinions went in the direction of Paul Clement. The Los Angeles Times reported that the Supreme Court showed "prudence", even "skepticism", toward the government’s position.

If a majority of the judges were to decide, at the next hearing of Hamdan versus Rumsfeld in July, that the prisoners have right to be heard by a court, it would constitute a serious setback for the "commander-in-chief." President Bush briskly overstepped the boundaries of presidential prerogative with the USA Patriot Act, which he uses in order to engage in wiretapping and recording information on American citizens, while refusing to ask for authorization at a court set up precisely for that purpose.

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