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It is rare for a president to comment on a pending Supreme Court case. But President George W. Bush has been doing just that in recent weeks, making several mentions of the Hamdan v. Rumsfeld case that will decide the fate of the military commissions he ordered to handle detainees at Guantanamo Bay, Cuba. “We’re waiting on our Supreme Court to act,” Bush said at a press conference Wednesday, one of several comments that indicate he is eager to follow the Court’s lead, even if it rules against his claim of broad power to deal with the detainees outside the established military and civilian court system. Bush’s remarks and tone have confounded opponents of the military commissions, leaving some wondering if Bush is trying to soften the blow of an expected defeat — or already preparing the public for civilian alternatives to military commissions. Covington & Burling partner David Remes, one of the coordinators of the legal effort against the administration position, says Bush’s comments have led him to ask “why Bush made Hamdan a test of presidential power in the first place. If Bush could accomplish his goals within the existing legal framework, why did he confront the judicial branch with such breathtaking claims of presidential power?” The presidential commentary on the case was so frequent in recent days that expectations were high that the Court might hand down the decision on Thursday. The two lawyers who argued against each other in the case — Solicitor General Paul Clement and Georgetown University Law Center’s Neal Katyal — were in the courtroom, but the justices instead handed down four criminal and business law cases. The Court will convene again next Monday and Thursday to issue more decisions in its push toward adjournment by month’s end. The Hamdan case asks whether the president has constitutional or statutory authority to establish the commissions — and whether federal courts have jurisdiction over the issue. Lawyers challenging the commissions say the limited rules of evidence and trial procedures violate the Uniform Code of Military Justice and the Geneva Conventions on prisoners of war. The administration has argued that Bush has ample authority to decide that military necessity requires a special process for handling the detainees outside the court system. But during a joint press conference June 9 with the prime minister of Denmark, Bush said he thought Guantanamo detainees “ought to be tried in courts here in the United States. We will file such court claims once the Supreme Court makes its decision as to whether or not — as to the proper venue for these trials.” That comment seemed to some to contradict his legal position, which was that the detainees should be tried by military commissions at Guantanamo, not courts in the United States. “This is a dramatic about-face from the Administration’s position in the high court, and an admission that the detainees have been right all along,” said Katyal, who argued on behalf of detainee Salim Ahmed Hamdan before the justices on March 28. “These cases belong in our courts, not in a makeshift military system that lacks credibility. President Bush’s statement reaffirms that national security doesn’t require this makeshift system, which is precisely what Mr. Hamdan has been saying for three years.” On Wednesday, at a press conference after his surprise visit to Iraq, Bush seemed to amend his comments, emphasizing that he had military, not civilian courts in mind. “I’d like to close Guantanamo,” Bush said, “but I also recognize that we’re holding some people that are darn dangerous, and that we better have a plan to deal with them in our courts. And the best way to handle … these types of people is through our military courts. And that’s why we’re waiting on the Supreme Court to make a decision.” But on May 7, in comments during an interview on a German television network, Bush seemed indifferent about which courts the detainees ultimately face. “I very much would like to get people to a court,” Bush said, according to the transcript. “And we’re waiting for our Supreme Court to give us a decision as to whether the people need to have a fair trial in a civilian court or in a military court. But in either case, they will get a trial which they, themselves, were unwilling to give to the people that they’re willing to kill.” Richard Samp of the Washington Legal Foundation, which filed a brief in support of the Bush Administration’s position on military commissions, said not much should be made of these remarks. “He has been talking to a lot of foreign leaders lately about Guantanamo, and I am sure he wants to not appear insensitive to their concerns,” said Samp. Samp adds that it is prudent for the administration to be planning now for the ramifications of a high court ruling — no matter which way it comes down. Deborah Pearlstein of Human Rights First, a leading critic of the commissions, agrees that Bush’s comments about the case reflect “national and international pressure on the administration to finally come up with some definitive — and lawful — resolution to a global detention system that long ago stopped serving U.S. policy interests in promoting freedom, or in protecting its own security.” But she too was astonished at Bush’s seeming acceptance of trials for the detainees, no matter where they take place. “The suggestion that the Guantanamo detainees should be tried at all, much less tried in U.S. courts, contradicts the administration’s position all along that the President can just detain, without trial if he wants, the ‘worst of the worst’ at Guantanamo forever.”

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