The First (and Quite Bad) Legal Interpretation of the Military Comissions Act of 2006

A federal district court in Washington, DC yesterday issued the first judicial interpretation of the Military Commissions Act of 2006 in the very same legal

April 6, 2006

*Cross-posted from The Huffington Post

A federal district
court in Washington, DC yesterday issued the first judicial
interpretation of the Military Commissions Act of 2006 in the very same
legal case that the Supreme Court ruled on in June.

The case is Hamdan v. Rumsfeld,
in which one of the Guantánamo detainees challenged the President's
November 13, 2001 executive order creating deeply unfair "military
commissions" to try allegations of war crimes. The detainee, Hamdan,
won in the Supreme Court.

The President's response, on September 6, was to urge Congress to
enact a new statute that established anew military commissions and, oh,
by the way, terminated detainees' rights to mount meaningful challenges
to their detentions and trials by these new commissions. A pre-election
Congress, cowed by the prospect of the kind of attack-ads that dogged Max Cleland in 2002,
representatives of both parties almost fell over themselves in the
haste to curtail detainees ability to enter court and make the simple
claim that they had been picked up by mistake.

Yesterday, on remand from the Supreme Court, Hamdan's claims are being booted out of court.

Yesterday's ruling will only be the first move in a complicated
series of judicial opinions that explore the consequences of Congress's
sweeping effort at jurisdiction-stripping: The courts will have to
plunge into detailed debates about the origins and consequences of the
Constitution's Habeas Suspension Clause;
they will have to decide complex issues of retroactivity; and they will
have to make fine-grained distinctions about the nature and scope of
the United States' international law obligations.

It's noteworthy the congressional sponsors of these
jurisdiction-stripping efforts, such as Senator Lindsay Graham, argued
that federal court review needed to be cut short because it imposed
unnecessary costs and delay. Quite the opposite will be true: The
legislation in fact forces courts into direct confrontation with some
of the most intractable issues of constitutional law. The law will be
in litigation for years to come, a Jarndyce v. Jarndyce for the post-9/11 era.

In Hamdan yesterday, the district court held that Hamdan
lacks a "substantial connection" with the United States. By way of
explanation, Hamdan was captured in the course of U.S. military
operations in Afghanistan--not, notably, on a battlefield; indeed, his
detention is hard to justify in terms of the traditional laws of war.

The court recognized that "Hamdan's lengthy detention beyond
American borders but within the jurisdictional authority of the United
States is historically unique." Indeed, this is the first time in
American history that the nation has established a global system of no-process seizure and detention. And it is the first time we have swept up individuals not only off foreign battlefields, but also from countries that neighbored
the battlefield, and claimed the authority to hold them without any
process whatsoever--indeed without even bothering with the abbreviated
battlefield hearings used since World War II to determine whether a
person has been correctly picked up.

The role of the federal courts has historically been to apply the fundamental principles enshrined in the federal Constitution--first
principles of equality and liberty--to shifting circumstances. Fidelity
to the Constitution, that is, does not mean a slavish and mechanical
devotion to tests and doctrines devised for other ages: It means asking
what the deep-rooted principles and values that the nation holds dear,
and that were embodied at the Founding.

Yesterday's ruling from the Washington district court does leave
Hamdan with no redress, but it may well eliminate his opportunity to
make a meaningful showing that he was wrongly picked up. As the rest of
the world looks at Guantánamo and asks why it is the United States
seems determine to keep holding literally hundreds of people who may
well have absolutely no connection to terrorism, it is worth asking
ourselves quite how the nation's first principles are being respected
and advanced by today's ruling.

 Aziz Huq: "The First (and Quite Bad) Legal Interpretation of the Military Commissions Act of 2006" (pdf)