The Department of Defense won an important legal victory this morning in the Hamdan case. The United States Court of Appeals in Washington D.C. reversed a district court decision that Hamdan, who admits he was Osama bin Laden’s driver in Afghanistan, could not be tried by a military commission unless a “competent tribunal” first determined that he was not a prisoner of war under the Geneva Convention. The Court concluded that the Geneva Convention is not enforceable in federal court. It also found that a military commission is a “competent tribunal,” and thus that such a commission can try Hamdan and, in doing so, decide his claim that he’s entitled to prisoner of war status.
The opinion was written by Judge Randolph, a jurist who in my view would be a serious candidate for the Supreme Court but for his age. His opinion was joined by Judge Roberts who reportedly is a serious candidate. Senior Judge Williams concurred with most of the opinion.
I’ll have more to report after I’ve had a chance to review the opinion carefully. I’ll also try to find the link.
UPDATE: The link is here, courtesy of Michelle Malkin.
Here are the rulings in the Hamdan case, as I read the decision. First, the government was wrong in arguing that the district court should have abstained from exercising jurisdiction over Hamdan’s habeas corpus petition. Second, Hamdan was wrong in arguing that President Bush violated the separation of powers when he established military commissions. Congress authorized the president to take necessary and appropriate action against those he determines were involved in the attacks. The fact that Congress didn’t declare war doesn’t matter. Third, the Geneva Convention of 1949 may not be enforced in federal court. Supreme court precedent establishes that the 1929 Geneva Convention cannot be so enforced, and there is no basis for treating the 1949 Geneva Convention differently. The general principle is that the U.S. traditionally has negotiated treaties with the understanding that they don’t create judicially enforceable rights. If a treaty is violated, this becomes the subject of “international negotiations and reclamation” not a lawsuit.
Fourth, even if the Geneva Convention could be enforced in court, this wouldn’t help Hamdan because he does not fit that instrument’s definition of a prisoner of war, nor does the 1949 Convention apply to al Qaeda and its members. Al Qaeda has not accepted and applied the provisions of the Convention, as it must to be covered if the war is an international conflict. And the war against terrorism in general, and the war against al Qaeda in particular, is an international conflict.
Fifth, even if Hamdan were covered by the Geneva Convention, the court would abstain from deciding whether the military commission before which the government proposes to try him meets the requirements of the Convention. That issue involves deciding not whether the commission will try Hamdan (which the court is willing to do), but how it may try him. Before the court would entertain that issue in the context of a claim based on the Geneva Convention, Hamdan would first have to “exhaust” his military remedies — in other words have the trial and then appeal. But this is all hypothetical because the court ruled that Hamdan is not covered by that Convention.
Sixth, during Hamdan’s trial, the military commission need not comply in all respects with the requirements of the Uniform Code of Military Justice (UCMJ). Most of these requirements apply only to court martials. The UCMJ imposes only minimal restrictions upon the form and function of military commissions. And finally, army regulations requiring that prisoners receive the protections of the Geneva Convention until some other legal status is determined by competent authority do not prevent the military commission from proceeding. The president intially found that Hamdan is not a prisoner of war under the Convention, and the president is a competent authority for that purpose. Moreover, the military commission is a competent tribunal for the purpose of making a more definitive determination.
Senior Judge Williams disagreed only with the conclusion that the Geneva Convention does not apply to our conduct toward al Qaeda personnel captured in Afghanistan. He argued that only conflicts between nations are international conflicts in the context of this Convention. Accordingly, the conflict with al Qaeda is not an international conflict for this purpose, which means that the conflict is covered as an “armed conflicts not of an international character occurring in the territory of” a party to the Convention.
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