Government Loses Hamdan Case

The Hamdan case addressed the rights of people detained as enemy combatants at Guantanamo Bay when tried for crimes beyond merely being detained, a detention which was itself upheld. The U.S. Supreme Court ruled against many key parts of the Bush Adminisration's enemy combatant doctrine. The main ruling was 5-3 with Justice Roberts who ruled in favor of the government in the U.S. Court of Appeals before he was appointed, not participating. Justice Kennedy, part of the majority, concurred in only part of the primary opinion by Justice Stevens. SCOTUS Blog has a syllabus of the decision. The full opinion is here.

The Court expressly declared that it was not questioning the government's power to hold Salim Ahmed Hamdan "for the duration of active hostilities" to prevent harm to innocent civilians. But, it said, "in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."

Basically, the Court's main opinion held that:

1. The government can try Hamdan, but must comply with rules essentially identical to courts-martial for U.S. soliders, not the reduced legal protections of the military commissions established by the administration.

2. The Detainee Treatment Act of 2005, which divests the courts of jurisdiction over most Guantanamo detainee appeals did not apply to pending cases. And, it ruled out refraining from addressing the case out of a generalized deferrence to the President in military affairs, or because the commission had not reached a final verdict.

3. Neither the Detainee Treatmen Act of 2005, nor the Authorization for Use of Military Force following 9-11, which was used as the basis for the war in Afghanistan authorized the creation of military commissions which were contrary to the Uniform Code of Military Justice and the Geneva Conventions. But, the commissions created by the President violated both the UCMJ and Geneva.

4. Military commissions and courts-martial must comply with the Geneva Conventions, at the very least, because they are part of the laws of war, which the UCMJ provides must be considered.

5. Common Article 3 of the Geneva Conventions, at least, applies to the war with al Qaeda, which is not a Convention signatory.

6. Common Article 3 includes: "a prohibition on 'the passing of sentences … without previous judgment … by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples.'"

7. As an aside, Common Article 3 also "provides that detained persons 'shall in all circumstances be treated humanely,' and that '[t]o this end,' certain specified acts 'are and shall remain prohibited at any time and in any place whatsoever'—including 'cruel treatment and torture,' and 'outrages upon personal dignity, in particular humiliating and degrading treatment.' This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment." This means that the President's treatment of many terrorism suspects was illegal. But, it does not clarify how detainees may go about enforcing this right. For example, do they have a private right of action to enforce it? The other part of Common Article 3, in contrast, is enforceable through the UCMJ courts-martial process through additional Congressional action in the form of express adoption of the "laws of war" as part of the rules of courts-martial.

8. Specific problems with the military commissions include: (a) the use of evidence kept secret for the defense, (b) a lack of real limits on evidence that the commission may consider, (c) the UCMJ requires its proceedures to be applied, if practicable, to trials of detainees in commissions, but the administration has failed to show good cause for deviating from those procedures, and (d) in the sense of the Geneva Conventions it is not a "regularly constituted court affording judicial guarantees."

In a part of the opinion not joined by Justice Kennedy, Justice Stevens stated:

1. The conspiracy crime with which Hamdan has been charged cannot be brought because it is not part of the law of war.

2. "[A]n accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him." If he is not, the commission violates the Geneva Conventions.

Meanwhile:

Justice Kennedy, agreeing that Hamdan’s military commission is unauthorized under the Uniform Code of Military Justice, 10 U. S. C. §§836 and 821, and the Geneva Conventions, concluded that there is therefore no need to decide whether Common Article 3 of the Conventions requires that the accused have the right to be present at all stages of a criminal trial or to address the validity of the conspiracy charge against Hamdan.

The exact status of this part of the ruling is not exactly clear. While Kennedy didn't join it, he didn't dissent. So, is this a 4-4 ruling, or a 4-3 ruling? This will only come up when new charges using a court-martial procedure are used, and only if the Bush Administration goes this route. The secret evidence holding probably is moot if a court-martial procedure is used. The conspiracy holding, in contrast, is central to any result, since this is a charge against all of the military commission defendants, and the only charge against many of them. To the extent that the issue is not decided in this case, there are at least four votes to say that conspiracy charges are not permitted, and probably four votes to say that they are permitted, leaving Kennedy as the swing vote if the issue returns to the U.S. Supreme Court.

Bottom line: The Bush Administration's military commissions in Guantanamo Bay are kangaroo courts. But, Gitmo can stay, if it stops engaging in torture and near torture.