A Question of Values: Why Hamdan Should Win

On March 28, the Supreme Court heard arguments in the high-stakes legal challenge to the...

March 30, 2006

*Cross-posted from ACSBlog 

On March 28, the Supreme Court heard arguments in the high-stakes
legal challenge to the military commissions established by the
President to try suspected terrorists at Guant√°namo. The case, Hamdan v. Rumsfeld,
raises a plethora of complex questions of constitutional, military, and
international law. If Petitioner Salim Ahmed Hamdan wins, which he
should, it will not just be because he is right on the law. It will
also be because the administration has offended deeply rooted values in
its continuing quest for unchecked executive power.

Judicial Independence. The threshold question in the case
is whether the Supreme Court still has the power to hear Hamdan's
appeal in light of the recently enacted Detainee Treatment Act of 2005
("DTA"). That act purports to eliminate jurisdiction over habeas corpus
petitions filed by detainees at Guantanamo, while providing for
limited review of "final decisions" of military commissions. Hamdan
argues that Congress did not divest the Supreme Court of jurisdiction
over his case and, moreover, could not do so without raising a serious
constitutional problem under the Suspension Clause.

The Supreme Court has resisted previous assertions of executive power that threaten its jurisdiction. In Rasul v. Bush,
decided almost two years ago, the Court squarely rejected the
government's claim that federal courts lacked habeas jurisdiction over
detentions at Guantanamo. It affirmed that detainees there, including
Hamdan, have the right to test the legality of their confinement.

After Rasul, a district court granted Hamdan's challenge to
the military commissions. The District of Columbia Circuit reversed
that decision. Then, two days after the Supreme Court announced it
would hear Hamdan's appeal, Senator Lindsey Graham, with the Bush
administration's backing, introduced legislation in Congress intended
to strip the Supreme Court of jurisdiction over the case. The ensuing
skirmish evoked the specter of Ex parte McCardle, a much-criticized Reconstruction-era case in which Congress eliminated the Court's jurisdiction over a pending habeas appeal.

The
legislation that emerged, while not a model of clarity, supports the
conclusion that Congress did not intend to eliminate habeas corpus in Hamdan
or any other pending case by a Guantanamo detainee. But canons of
statutory construction aside, the Court will likely view the DTA as an
attempted assault on its independence, an effort by the administration
to take away its power to decide a case it feared it might lose, just
like the President's eleventh hour decision to indict Jose Padilla
after more than three years of military detention in an effort to
short-circuit Supreme Court review of his case. Further, if
jurisdiction in Hamdan were limited to the DTA, it could
forever foreclose review of the very questions now before the Court:
whether the commissions are authorized and whether they violate the
Geneva Conventions. Because the DTA constitutes such an affront to the
Court's institutional role in preserving the separation of powers, the
Court should reject the government's jurisdictional and abstention
arguments, and reach the merits.

Rule of Law. The government's main contention in Hamdan
rests on a fundamental contradiction. The government claims that the
laws of war authorize military commissions, but refuses to acknowledge
that those same laws impose constraints on such commissions. The
government relies on a provision of the Uniform Code of Military Justice
(UCMJ) which preserves the jurisdiction of military commissions
concurrent with courts-martial. That provision, however, expressly
limits a military commission's jurisdiction to "offenders or offenses
that by statute or the law of war may be tried by military
commissions."

The President has charged Hamdan only with conspiracy. Yet, both the
War Crimes Act of 1996 and every war major war crime tribunal in the
past half-century make clear that conspiracy alone does not violate the
laws of war. The reason is simple: conspiracy is a notoriously elastic
charge and, if used as the basis for war crimes trials, would
inevitably lead to prosecutorial abuses.

The President similarly seeks to avoid the procedural safeguards of the laws of war. The Geneva Conventions (and the military's own regulations
implementing them) require that a prisoner be afforded a hearing before
a competent tribunal to determine his status. If he is determined to be
a prisoner of war, he may not be tried by a military commission.
Hamdan, however, has not been provided that threshold hearing. In
addition, the laws of war mandate that if Hamdan is to be tried, it
must be by "a regularly constituted court" that "affords all the
judicial guarantees which are recognized as indispensable by civilized
people." The commissions flunk that test because, among other things,
they deny Hamdan and other defendants the right to be present
throughout their trial and to confront the witnesses and evidence
against them.

Hamdan's arguments on these points appeared to have significant
traction with a number of Justices, and for good reason. The President
cannot invoke the laws of war to accrete power but discard them
whenever they impose constraints on the exercise of that power. The
rule of law, in short, means that the President cannot make up or bend
the law to serve his purposes.

Fairness. Hamdan argues that the military commissions
violate the UCMJ because they do not conform to the procedures of
courts-martial. The government asserts that only those procedures
specifically made applicable in the UCMJ to military commissions apply
to those commissions. The Court's construction of the UCMJ's text will
likely be colored by its underlying assessment of whether Hamdan (or
any one else) can ever get a fair trial before these tribunals.

The commissions are flawed in numerous respects, but perhaps most
significantly by denying a defendant the right to be present for his
trial and to confront the witnesses against him. The Court, through
Justice Scalia, has previously described the right of confrontation as
a "principle of the common law, founded on natural justice." That right
is guaranteed not only in civilian trials but in military trials under
the UCMJ as well. Further, Justice Scalia explained that this right was
designed to prevent the use of ex parte statements made
during custodial interrogations, precisely the type of evidence the
government seeks to use to bolster its case against Hamdan and others.

In a speech he gave two weeks ago in Switzerland that prompted calls for his recusal from Hamdan,
Justice Scalia said combatants captured during wartime are not entitled
to a jury trial in civilian courts. The appropriateness of those
comments aside, they miss the mark. The question is not whether Hamdan
must necessarily be tried by jury in a civilian court instead of by
military commission; rather, it is whether he can lawfully be tried by
the current military commissions at Guant√°namo which, among other
failings, deny Hamdan the right of confrontation. The district court
believed Hamdan could not be tried before such a commission, and the
Supreme Court should not uphold a trial that deprives any defendant of
a right it has said is founded on natural justice.

Tradition. The commissions also offend tradition. The history of military commissions is relevant in Hamdan
because it provides evidence of what the laws of war have authorized
over time. But history is important for another reason, one that cannot
help but escape the Court's notice. Military commissions have typically
been used as emergency measures, gap-fillers for occupied territory or
situations when the civilian courts were not open and functioning. On
the rare occasion in which military commissions have exceeded those
narrow limits, as in Ex parte Quirin, they have been severely
criticized. The current commissions forebode something very different:
the unilateral creation by the President of a new, ad hoc,
and open-ended military justice system, unfettered by the established
protections of civilian criminal trials or courts-martial, with
jurisdiction to try a virtually limitless class of non-citizens in an
amorphous "war on terrorism" that the administration says could last
generations. With the rest of the world watching, the Court should be
very reluctant to sanction such a dramatic break with tradition, at
least not without the inter-branch checks, procedural safeguards, and
other guarantees that the commissions lack.

Jonathan Hafetz: "A Question of Values: Why Hamdan Should Win" (PDF)