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On the Ground at GuantanamoWhile the Supreme Court ponders, a real trial begins.

By Neal Katyal
Posted Tuesday, Dec. 4, 2007, at 6:12 PM ET
Salim Ahmed Hamdan. Click image to expand.

Wednesday, the Supreme Court will consider, for the third time in three years, whether the hundreds of detainees at Guantanamo have any legal rights whatsoever. In another courtroom, many hundreds of miles away and across an ocean, a criminal trial will begin against my client Salim Hamdan, who is accused of being Osama Bin Laden's driver. It will be a makeshift, not marble, courtroom—little more than a portable tent. If the hearing in Washington represents the grand American tradition of justice, the trial at Guantanamo represents its undoing. Only the first proceeding reflects the strength necessary to win the war on terror.

The magnificent Supreme Court building, designed by Cass Gilbert, is flanked by 16 Corinthean columns. Above them lies the profound inscription, "Equal Justice Under Law." But it is in the rickety courtroom at Guantanamo where our nation's most important trials will eventually be held. The twin hearings this morning for Hamdan and at the Supreme Court aren't really a coincidence, because the Pentagon seems to choose trial dates when the justices get involved. The trial in Guantanamo is explicitly proceeding based on the administration's belief that a detainee has no constitutional rights, even though the government wants to impose its most awesome punishments. The judges, to make matters worse, are military officers who have been hand-picked for this task. Some even said in speeches before being chosen that the Guantanamo system is fair and legal.

These trials are not "equal justice": For the first time since equality was written into our Constitution, America has created one criminal trial for "us" and one for "them." The rules for the Guantanamo trials apply only to foreigners—the millions of green-card holders and five billion people on the globe who are not American citizens. An American citizen, even one who commits the most horrible and treasonous act (such as the detonation of a weapon of mass destruction), gets the Cadillac version of justice—a criminal trial in federal court. Meanwhile, a green-card holder alleged to have committed a far less egregious offense gets the beat-up Chevy: a military commission at Guantanamo. Before that commission, that noncitizen will have few of the very rights America has championed abroad, and he can be sentenced to death.

So, for example, the rules for Hamdan's trial admit hearsay evidence in ways that American courts (both civilian and military) do not. The New York Times reported over the weekend, moreover, that the detainees have not been given access even to the names of the people who will testify against them. Problems such as these are bound to arise when the government's base legal theory is that the detainees have no constitutional rights. It is not surprising that Hamdan is being tried for conspiracy—the very crime that a plurality of the Supreme Court said he could not be tried for in its decision last year. The government asserts that Congress, after Hamdan's victory in the Supreme Court, made conspiracy a crime that could be tried in the Guantanamo tribunals. But, as any seventh-grade civics student knows, Congress cannot make something a crime after the fact.

The distinction that the Bush administration draws between citizens and aliens deviates from the U.S. military commission of the past, which applied the same rules to citizens and aliens alike. As Justice Antonin Scalia has said, the genius of the equality guarantee is that it forces Congress to legislate evenhandedly. When Congress can pass a law that only applies to the powerless, literally the people without a vote, those laws are bound to have problems.

President Bush has dispatched his lawyers to both courtrooms today because he hopes to cut the Supreme Court out altogether. He believes that only he can be trusted to decide the constitutionality of his own trial system. Our founders would have been mystified by the idea that the Supreme Court gets in the way during wartime. In fact, anyone with even a passing knowledge of American history would reject it. In times of armed conflict, the court has upheld almost everything our presidents have done, including acts as extreme as the internment of tens of thousands of Japanese-Americans during World War II. If you are the president, it's not easy to lose a case in front of the Supreme Court during an armed conflict; you have to try hard to pull it off.

Yet, since the president announced his Guantanamo trial scheme in November 2001, and even as he has spent dozens of millions of dollars on it, his plan has not produced a single conviction at trial, and the administration has managed to lose three times in three years.

Moments after the Supreme Court sided with Hamdan in that third decision, which rejected the radical claim that the Geneva Conventions do not apply to the war on terror, I rejected the predictable conclusion that "Bush lost." Instead, I stood on the steps of Gilbert's courthouse and said America had prevailed. A fourth-grade-educated Yemeni, accused of conspiring with one of the world's most evil men, brought his case against the world's most powerful man. He took his claim all the way to the Supreme Court. And he won. In few other countries could such a thing even be possible.

President Bush had an opportunity in 2006 to use the court's decision to America's advantage, by showcasing our strength as a people: In America, we let the court announce our leaders' mistakes in boldface print. Instead, the president decided to try, once again, to cut the Supreme Court out. That's why Guantanamo is back in Washington today—while Salim Hamdan is facing a tribunal that exists to avoid the guarantees of the U.S. Constitution.

When Chief Justice Hughes laid the cornerstone of the new Supreme Court building in 1929, he proclaimed, "The republic endures, and this is the symbol of its faith." Whatever else might be said about the Guantanamo courtroom, it will never symbolize America or what it is about.

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Neal Katyal, a law professor at Georgetown University, successfully argued the last Guantanamo case at the Supreme Court on behalf of Salim Hamdan. He previously served as national security adviser at the Justice Department, and has filed a friend-of-the court brief in the Supreme Court case being argued today.
Photograph of Salim Ahmed Hamdan by -/AFP/Getty Images.
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