Fifth Amendment to the US Constitution:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury... nor be deprived of life, liberty, or property, without due process of law..."

Sixth Amendment to the US Constitution:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law..."

Eighth Amendment to the US Constitution:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Ninth Amendment to the US Constitution:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Tenth Amendment to the US Constitution:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Pres. Bush's efforts to assume new powers in personally judging accused al-Qaeda co-conspirators "enemy combatants", then crafting a unique, extralegal war crimes tribunal system, where certain rights are denied the defendants, have been rejected by the Supreme Court. The Bush administration must now file criminal charges, either in civilian criminal court or before a standard military court martial.

The Court specifically found that the Bush administration has filed charges which do not constitute war crimes under international law —there is no "conspiracy" charge, and being a driver for the enemy is not considered per se a war crime—, and that Hamdan must be prosecuted for an actual crime, as described in existing laws.

The special, and legally impermissible situation in which Guantánamo detainees find themselves, stems from their not being able to face accusers at trial, and their not being able to see evidence against them, due to what the government says is the risk to national security of revealing "sources and methods".

What's more, the appeals process involved people in the same chain of command as the original tribunal, creating a vested interest in refusing to overturn tribunal findings. This, the Court found, was an inadequate system for fairly adjudicating the guilt of the accused. The fact remains that in the US system of laws, at all levels, criminal prosecution can only be legitimized when parting from the presumption of innocence until guilt is proven.

A military lawyer from the defense team for Ahmed Salim Hamdan told the press that on the first day they met, Hamdan told him the guards continually told him "there is no law" at Guantánamo Bay. He said he fought the case with the belief in mind that the law would prevail in the US system of jurisprudence, adding that today's ruling "means we can't be scared out of who we are" as a people. [s]

• Supreme Court: "Hamdan v. Rumsfeld, Opinion of the Court" [PDF]
• ICRC: "The Geneva Conventions: the core of international humanitarian law"

BACKGROUND:
PRIVACY MAY BE KEY TO ALITO'S FATE
1984 MEMO URGES IMMUNITY FOR AGENTS INVOLVED IN WARRANTLESS SPYING
30 December 2005

Judge Samuel Alito, by most accounts named to become Associate Justice on the Supreme Court for his so exceedingly surpassing the ill-fated Harriet Miers in judicial experience, has tried to stay clear of the privacy issue. That is because privacy is essential in the Roe v. Wade ruling. But now, newly released documents seem to show Alito has expressed a lack of support for other constitutional privacy rights. [Full Story]

BUSH AGREES TO McCAIN'S FULL BAN ON TORTURE, INHUMANE TREATMENT OF TERROR SUSPECTS
16 December 2005

President Bush has announced his support for Sen. John McCain's proposed ban on cruel, inhumane and degrading treatment of detainees in the "war on terror". The White House had opposed the ban, and the vice president had actively lobbied Congress to include an exception for the CIA. Sen. McCain repeatedly refused to weaken the ban, and both houses of Congress voted overwhelmingly to support it as written. [Full Story]

SERIOUS LEGAL PROBLEMS INHERENT IN GHOST FLIGHTS & 'EXTRAORDINARY RENDITION'
9 December 2005

The principal legal problem relating to alleged "ghost flights", secret interrogations and the policy of "extraordinary rendition" is the extralegal nature of all three techniques, designed to operate beyond the scope of ordinary legal constraints. Rendition is "extraordinary", because it evades the normal legal channels for processing criminal allegations, charges and suspects across international borders. [Full Story]

WASHINGTON POST REPORTS SECRET GLOBAL NETWORK OF EXTRAJUDICIAL CIA INTERROGATION CAMPS
3 November 2005

Dana Priest, a Washington Post writer, reported yesterday astounding revelations about the existence of a global network of secret CIA-managed prisons which appear to violate numerous provisions of international law. The so-called "black sites" are said to exist or to have existed in at least 8 countries, including in eastern Europe, a fact which has sparked outrage across the continent. [Full Story]