ChezLark

Ah, Hamdan v. Rumsfeld.

The case was decided on June 29th, but I haven’t written about it yet. Why? Well, it’s a voluminous decision, and there are just gobs of information flying around about its significance. Here, finally, is an attempt to corral some of the information.

Background

After September 11th, Congress authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks . . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons”.

On November 13th, 2001, the President issued a military order (66 FR 57833) laying the groundwork for the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”. The Order prescribed that non-citizens associated with Al Qaeda, or who commit acts of terrorism against the US, may be tried by a military commission. The order defined some broad constraints on those commissions, and vested in the Secretary of Defense the authority to implement them. The Secretary of Defense’s powers included the ability to set “rules for the conduct of the proceedings of military commissions, including pretrial, trial, and post-trial procedures, modes of proof, issuance of process, and qualifications of attorneys …”.

Hamdan, a Yemeni national, was charged by such a commission with the crime of “to commit . . . offenses triable by military commission”. More specifically, it was charged that “from on or about February 1996 to on or about November 24, 2001,” Hamdan “willfully and knowingly joined an enterprise of persons who shared a common criminal purpose and conspired and agreed with [named members of al Qaeda] to commit the following offenses triable by military commission: attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; and terrorism.” Hamdan was supposedly Osama bin Laden’s driver, among other things, and the charging documents list various “overt acts” of participation in Al Qaeda’s activities that Hamdan voluntarily committed.

The military commission set up to try Hamdan differed in many significant ways from “normal” courts-martial, that are used to prosecute members of the US military. The commission’s procedures are defined by Military Commission Order No. 1, issued by the Department of Defense under the authority granted by the Presidential Military Order mentioned earlier. Notable departures from the structure of courts-martial include:

• The Presiding Officer has the authority to “close” any or all portions of the proceedings, based on any of a variety of grounds, including a blanket reference to “national security”.
• The defendant and his civilian lawyer (but not his “Detailed Defense Counsel”) may be excluded from “closed” portions of the proceedings
• Although the defendant’s Detailed Defense Counsel must be present at “closed” portions of the proceedings, “Defense Counsel may not disclose any information presented during a closed session to individuals excluded from such proceeding or part thereof.”
• Any evidence may be admitted if “in the opinion of the Presiding Officer … the evidence would have probative value to a reasonable person”. This allows hearsay and evidence obtained by torture, among other things.
• The Presiding Officer may, “as necessary to protect the interests of the United States”, withhold material from the Defense, or substitute abridged material.

These rules make it possible for a defendant to be convicted based on hearsay evidence, or evidence obtained by torture, that the defendant never has the opportunity to rebut, or even see. As the Supreme Court ruling puts it:

The commission’s procedures, set forth in Commission Order No. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to “close.”

Hamdan filed filed habeas and mandamus petitions, claiming:

[T]hat the military commission lacks authority to try him because (1)neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and (2) the procedures adopted to try him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.

The Decision

The Supreme Court ruled (among other things) that:

• The military commissions that Bush created are not “expressly authorized by any congressional Act”, and that the usual Uniform Code of Military Justice should therefore apply. The Government argued that Congress’ Authorization for the Use of Military Force (AUMF) constituted such an authorization, but the court ruled that “there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter [existing law]“.
• “The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949.”
• Because of this, the military commissions that Bush set up are illegal, and Hamdan’s prosecution within that framework is illegal.

The commissions are illegal under the Uniform Code of Military Justice because Section 36 empowers the President to prescribe rules for courts-martial, but requires that “All rules and regulations made under this article shall be uniform insofar as practicable”. The Supreme Court found that the government had offered no convincing reason why it was not “practicable” to follow the structure of existing courts-martial, and that the “uniformity” requirement was therefore violated.

The court also held that the commissions are illegal under the Geneva Conventions.

There was some contention about whether the Geneva Conventions are judicially enforceable (!), and the resolution of that question is important. The UCMJ, which is an exercise of Congress’ Constitutional power to “make Rules for the Government and Regulation of the land and naval Forces”, grants jurisdiction to military tribunals to try offenses against “statute” or the “law of war”. The Supreme Court found that the Geneva Conventions are “indisputably” part of the “law of war”, and that the UCMJ must therefore be understood as requiring that military commissions respect them.

The Government also argued that the Geneva Conventions did not apply to Hamdan because:

The conflict with al Qaeda is not, according to the Government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply because Article 2 of those Conventions (which appears in all four Conventions) renders the full protections applicable only to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U. S. T., at 3318.59. Since Hamdan was captured and detained incident to the conflict with al Qaeda and not the conflict with the Taliban, and since al Qaeda, unlike Afghanistan, is not a “High Contracting Party”—i.e., a signatory of the Conventions, the protections of those Conventions are not, it is argued, applicable to Hamdan.

The Court points out that Common Article 3 of the Conventions, which is meant to serve as a “floor”, or minimum set of standards, applies even if “the relevant conflict is not one between signatories”. The Court ruled that these provisions must apply to all prisoners, at a minimum, as the Convention intended. Article 3 offers these protections:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘ hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Section 1(c) is the sticking point: the Court ruled that the military commissions, as Bush had constituted them, did not pass muster under the “regularly constituted” test nor the “all the judicial guarantees which are recognized as indispensable by civilized peoples” test. The Court comments:

Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.

So What?

This is the daunting part. What does it all mean?

Well, obviously, it means that Hamdan and other detainees in the War On Terror™ can’t be tried under military commissions as they are currently set up. Beyond that, though, there is a veritable cacaphony of discussion and speculation going on throughout the country and the blogosphere.

The Court decision didn’t resolve whether the government can legitimately imprison detainees indefinitely without charging them with any crime, so that is still an open issue. The ruling also ducked the issue of whether courts could force the government to observe the Geneva Conventions if Congress had not specified in the UCMJ that they must be respected.

If you put these provisos together, the next thing you start wondering is whether Congress will now move to explicitly authorize the President’s treatment of detainees, and whether detainees would then have any ability to challenge their confinement in court.

Many people believe that this court decision has direct applicability to the NSA “terrorist surveillance” (aka “domestic spying”) program. The government has always claimed that it had the authority to conduct telephone surveillance in the US despite the clear provisions of the Foreign Intelligence Surveillance Act (FISA) because the President has sole authority to engage the enemy in wartime, so he may disregard any acts of Congress that claim to abridge that authority. In the Hamden case, the Supreme Court roundly dismissed that line of argument, finding instead that Congress is co-equal and may place various restrictions on the President’s conduct in wartime. Also, the government has claimed that the Authorization for the Use of Military Force should be understood to implicitly amend FISA to allow any measures the President sees fit against Al Quaeda. Again, in this case, the Court rejected that interpretation as it related to military commissions: since the AUMF was silent on the matter of trying detainees, the Court found that existing legislation must continue to apply. Similar reasoning suggest that the NSA’s monitoring of telephone calls is illegal.

Marty Lederman at SCOTUSblog thinks that the ruling is hugely significant because it clarifies that the government must comply with Geneva’s Common Article 3 protections for all prisoners, at least until Congress changes the law:

This almost certainly means that the CIA’s interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

If I’m right about this, it’s enormously significant.

Certainly, if Marty is right, this is a Really Big Deal. More on this later. SCOTUSblog has several follow-up posts and round-ups to read through. Whew!

Gleen Greenwald has a nice summary of the ruling that you may want to read in addition to this one.

In a later post, Glenn worries that Bush may simply ignore the Court’s ruling, under the theory that the Court is wrong and can no more impinge on his Constitutional powers than Congress can:

Thus, if the President decrees that compliance with a Supreme Court ruling would impair his ability to defend the nation, is it certain — or even likely — that the administration would comply with the ruling? It seems far more likely that the administration would simply assert that the Court has no authority to interfere with the President’s constitutional obligation to defend the country, and that any ruling which does that lacks validity and therefore can be ignored.

Scary.

I think it’s become clear that this is a major ruling, and a major setback for the Bush administration’s theory of the President’s “plenary powers” in wartime and the “unitary executive”. At the very least, the Court found that Congress not only has the power to control and restrict the President’s conduct in wartime, but that existing statutes have just that effect, and that the President has overstepped his authority. The decision may even have clarified that many other activities the government has been involved in (in particular, abusive interrogations), are actually federal crimes.

It will be very interesting to follow what Congress does next.