By Marjorie Cohn,
Wed Mar 29th, 2006 at 09:48:38 PM EDT :: The_Judiciary
On Tuesday, the Supreme Court heard arguments in Hamdan v. Rumsfeld, the most significant case to date that tests the limits of Bush's power. Scalia, who has already pre-judged this case, should have recused himself. In a March 8 talk at the University of Freiberg in Switzerland, Scalia denied that the detainees have legal rights."War is war," he declared, "and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts." Scalia, who flipped off reporters in Boston two days before the oral argument in this case, will invariably give the finger to Salim Ahmed Hamdan and the rule of law. Evidently, so will Samuel Alito. He suggested during argument that Hamdan should wait until after he's convicted in the military commission to question whether conspiracy is a war crime. Clarence Thomas, who characteristically remained mute, will vote with Scalia and Alito, judging from his decisions in Rasul and Hamdi. Fortunately, Breyer, Ginsburg, Kennedy, Souter and Stevens showed little appetite for Bush's argument that Congress suspended habeas corpus in the Detainee Treatment Act. "The historic [writ] of habeas is to test whether or not you are being tried by a lawful tribunal," Kennedy noted. Souter took the issue of Bush's unbridled arrogation of power head-on. He asked what would stop the President from setting up military commissions in Toledo, Ohio as well as Guantánamo Bay. The answer is clear: the Supreme Court.
