A case to watch

Tomorrow, a three-judge panel of the U.S. Court of Appeals for the District of Columbia will hear oral argument in the case of Salim Ahmed Hamdan. Hamdan was captured in Afghanistan and has been detained at Guantanamo Bay. The president has found that he was a member of al Qaeda. A combatant status review board has reached a similar conclusion. I understand that Hamdan himself has said he was a driver for al Qaeda leaders.
Hamdan was set to be tried by a military commission, but the trial was halted by a district court judge in Washington, D.C. who found that Hamdan’s rights under the Geneva Convention are being violated. I’m hardly an expert in this area of the law, but the district judge’s opinion strikes me as a hyper-technical analysis driven by the judge’s personal belief that the government’s position “can only weaken the United States’ own ability to demand application of the Geneva Conventions to Americans captured in armed conflicts abroad.” Call me naive, but I had thought that the views of our military leaders and president on this policy question would trump those of a former civilian lawyer now serving as a district judge.
Among the legal issues that the government is raising are (1) whether the Geneva Convention applies to members of al Qaeda and (2) whether the procedures of the military commission can be reconciled with the rules of the Uniform Code of Military Justice (UCMJ). The latter issue arises because commission procedures, unlike court martial procedures, permit the exclusion of the defendant when highly sensitive classified information is presented. The government contends that, since the UCMJ contemplates the use of special commissions, not just ordinary court martial proceedings, the limited use of special procedures that don’t exist for court martials is not inconsistent with the UCMJ. I would hope that when an al Qaeda member is on trial, the government could present evidence that reveals secret information helpful to al Qaeda outside the presence of the al Qaeda defendant. A contrary result would seem to endanger our national security. But that’s just my policy preference.
As far as I know, this will be the first court of appeals case to raise these issues. We will watch the Hamdan case closely.

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