March 28, 2006,
The Supreme Court hears arguments today in one of the most important cases since the beginning of the War on Terror. That case is Hamdan v. Rumsfeld, and at stake is the president’s authority to order that illegal enemy combatants be tried by military commission. A lower court has correctly found that the answer to that question is yes and the Supreme Court should now affirm its decision.
Salim Ahmed Hamdan, a Yemeni national, has been held at Guantanamo Bay since his capture in Afghanistan. He has admitted to being Osama bin Laden’s personal driver, and he also stands accused of delivering weapons for al Qaeda and receiving training to commit terrorist attacks. His lawyers argue that President Bush has no authority to establish military commissions of the type that will try him, and that such commissions violate the Geneva Conventions’ protections for enemy combatants. But in July 2005, a three-judge panel of the D.C. Circuit all but laughed those claims out of court.
On the question of presidential authority, it noted the 1946 Supreme Court ruling in Yamashita v. United States that the “conduct of war” involves, among other things, “the trial and punishment of enemy combatants” who have violated the laws of war and that, following September 11, President Bush received authorization from Congress to conduct war. So clear did this authorization seem to the court that it didn’t even address Bush’s second argument: that the executive possesses inherent authority under Article II of the Constitution to create military commissions for such as Hamdan.
On the question of Geneva protections, Hamdan’s lawyers say that he must be tried by the same procedures as U.S. soldiers: courts martial, not military commissions. But the D.C. court rejected that claim as well. To begin with, there is a long history of jurisprudence holding that international treaties do not establish private, judicially enforceable rights, even when they benefit private persons. If U.S. treatment of Hamdan violates the Geneva Conventions, the court said, that problem must be addressed by “international negotiations and reclamation” between the U.S. and Yemen not by lawsuits in U.S. courts.
But the idea that Hamdan is subject to Geneva protections in the first place is absurd. Those protections apply to soldiers of countries that are parties to the conventions, and to non-parties that accept and apply the conventions’ terms. Al Qaeda, with its distaste for wearing uniforms and its penchant for blowing up civilians, belongs to neither category.
This doesn’t mean Hamdan will be mistreated: U.S. law forbids the inhumane treatment of captives, regardless of their Geneva status. And Hamdan will even keep the privilege of having his case reviewed by a U.S. court. The Detainee Treatment Act passed last December and signed by President Bush guarantees that privilege. It has been described by the press as “[stripping] federal courts of jurisdiction over cases brought by detainees at the United States naval base at Guantánamo Bay,” but that simply isn’t so. The act is, rather, an attempt to streamline the process by which the courts will deal with hundreds of complaints filed by Guantanamo detainees. It allows them to appeal their cases to the D.C. Circuit Court, but requires that such appeals take place after they are sentenced. Let no one say, then, that Hamdan is being denied due process: If found guilty, he will get another shot at making the very arguments about the commission’s legitimacy that he is making today.
The Detainee Treatment Act also casts into doubt whether the Supreme Court even has jurisdiction to hear today’s arguments. Many legal scholars believe its wording is ambiguous on the question of whether it applies to cases that were pending at the time of its enactment like Hamdan’s or only to future cases. But if the language of the act is less than clear, its intent is not: Because it is a response to, and a means of coping with, appeals from litigious Gitmo detainees, it is most reasonably understood as applying to both pending and future cases. If so, Hamdan can file an appeal only after his sentencing, and until then the Court must dismiss his case.
But regardless of the jurisdictional question, Hamdan should not be hard to decide on the merits. Hamdan is an illegal combatant, and President Bush is well within both the bounds of congressional authorization and the tradition of presidential wartime powers in ordering that he be tried by military commission. The Supreme Court should seize the opportunity this case presents to make that clear.