July 02, 2006
Jihadist Prudence: Gitmo Tribunal Decision
For those interested, a text of the Hamdan v. Rumsfeld decision can be found here. That's the very recent U.S. Supreme Court decision striking down the military tribunals President Bush established by Executive Order for prisoners at Guantanamo Bay, Cuba. The decision is a bit convoluted given that the Court had to first torture the interpretation of a very specific law which prohibited courts from hearing these habeas corpus petitions made by Gitmo prisoners. (The Court reasons that the prohibition doesn't apply to those petitions, such as Hamdan's, which had already been filed when that anti-habeas law was passed in 2005.) While I favor the overall result of the case, I do share dissenting Justice Thomas' pique at the majority's sleight of hand jurisprudence and their evasion of the application of plain language and common sense on that particular issue.
Once it is decided the Court can hear the case, the decision then proceeds to a rather technical set of distinctions which basically boil down to the argument that the President cannot override the scheme of military courts already established by Congress and validated by the Geneva Conventions minimum standards for prisoners. Ultimately, the decision has a nugget or two of sense, buried amidst distinctions that are by no means obviously compelling.
The nugget or nuggets are extractable from the Court's syllabus (summary):
The military commission at issue is not expressly authorized by any congressional Act. . . .The military commission . . . lacks the power to proceed because its structure and procedures violate both the UCMJ [Uniform Code of Military Justice -- the American military criminal law statute] and the four Geneva Conventions signed in 1949.... [The Geneva Conventions'] Common Article 3 requirements [for a “regularly constituted court” to try prisoners-of-war] are general . . . but they are requirements nonetheless. The commission convened to try Hamdan does not meet those requirements. . . . Even assuming that Hamden [sic] is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment.
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I'm confused. I haven't had time to look into this closely, but I thought the Geneva Conventions, in the traditional American interpretation, stipulated a "regularly constituted court" to which even "unlawful combatants" have recourse and a "competent tribunal" to decide whether someone is an unlawful combatant to begin with. Are these being distinguished?
Posted by: Michael at July 2, 2006 06:48 PM
More importantly, it looks like the Congress is about to define a "regularly constituted court" for foreign Muslims suspected of wanting to kill Americans. And just about now, the Republicans are looking for a fight that would mobilize their core electorate. Doesn't that sound like a dangerous combination?
Posted by: Michael at July 2, 2006 07:19 PM
What I'm confused about (this doesn't really have anything to do with the technicalities of either the law involved or the decision) is why we can't just try them according to the pre-existing law and rules of evidence and all that. If it has to be done in secret to accomplish things like not compromising national security (which is almost always a figleaf for abuse, but whatever) or because the jurors need to have their anonymity protected (this one I could understand and get behind) then fine. But otherwise, you open up a can of worms.
Posted by: pantom at July 2, 2006 11:26 PM
If the Court tortured the statute, that torture was earned. The principal authors of the specific provision disagreed on its effect. The guy who thought it did not cut off Hamdan said so in the debate leading up to passage, and the guy who thought it did cut them off stayed silent until the vote was taken, and then inserted his remarks, retroactively, to the effect that it did cut them off. They both knew that the Supreme Court was going to have to decide which of them had beaten the other in the statute drafting contest, and now we know. There were repeated attempts to get language that would more clearly cut the case off, in the Senate and in conference, but these failed, and were abandoned in favor of betting that the Court would rule for cut-off.
The Court has also avoided a constuitutional question, one that the proponents of the statute could not have won.
Congress is free to repudiate the Geneva Conventions. I wouldn't think that convicting Salim Hamdan (and 9 other men) of whatever crime they can get to stick would really be worth doing so, but I can see that some folks think preserving Republican majorities in both houses is important enough to jettison Geneva.
Posted by: CharleyCarp at July 3, 2006 09:21 AM
Repudiation of the Geneva Conventions are not required by the SCOTUS decision in order to use military commissions to try detainees who are ineligible for POW status by virtue of breaking the laws of war.
What is required is that military commissions be authorized by the Congress and adhere to minimal but coherent procedural standards consistent with the precedent of Ex Parte Quirin:
"Quirin held that Congress had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law of war. 317 U. S., at 28. UCMJ Art. 21, which is substantially identical to the old Art. 15, reads: “The jurisdiction [of] courts-martial shall not be construed as depriving military commissions … of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such … commissions.” 10 U. S. C. §821. Contrary to the Government’s assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions-with the express condition that he and those under his command comply with the law of war. See 317 U. S., at 28-29. Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21. Cf. Ex parte Yerger, 8 Wall. 85, 105. Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Art. 21 or the AUMF, was enacted after the President convened Hamdan’s commission, it contains no language authorizing that tribunal or any other at Guantanamo Bay. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the Constitution and laws, including the law of war. Absent a more specific congressional authorization, this Court’s task is, as it was in Quirin, to decide whether Hamdan’s military commission is so justified. Pp. 25-30"
Posted by: mark safranski at July 3, 2006 07:36 PM
(I will attempt to refrain from snark on Anthony Snow's comment that the change "is not really a reversal of policy [because] humane treatment has always been the standard." It ain't easy, though.)
Posted by: Eva Luna at July 11, 2006 02:41 PM