Worrying about Hamdan

Yesterday the Supreme Court agreed to review the D.C. Circuit decision in the Hamdan case that approved the legality of military commissions to try enemy combatants. Hamdan himself was Osama bin Laden’s personal driver. Hamdan is being held at Guantanamo; he claims he has a right to have a “competent tribunal” determine whether or not he is a prisoner of war under the 1949 Geneva Convention governing the treatment of prisoners. Today’s Boston Globe story on the Supreme Court’s agreement to hear the case is here.

Chief Justice Roberts has recused himself from hearing the case, so the case will be argued to only eight justices when the Court hears it next March. (Only four votes are required for the Court to take a case; if the Court were to divide four-four after hearing it, the D.C. Circuit decision would stand.) The Court’s agreement to hear the case worries me. Today I wrote the most knowledgeable person I know on the issues involved in the case to ask him (or her) for his (or her) take on the case:

Since shortly after 9/11/2001, opponents of the President’s liberation of Iraq have consistently and repeatedly accused him and the military of violating the Geneva Conventions and engaging in torture. Unfortunately, the Administration’s response has been, typically, silence. Of course, they sometimes talk — like when they argue that there should be a CIA exception for torture. In those cases, the talking has not helped them.

The Court has now decided to [hear] Hamdan v. Rumsfeld. Even if the Court decides that the Geneva Conventions are self-executing law and enforceable in the US courts, the Court may still decide that the military war crimes trials are fully in accord with Geneva. Here is what Judge Williams said, concurring in Hamdan:

In such a conflict, the signatory is bound to Common Article 3’s modest requirements of “humane [ ]” treatment and “the judicial guarantees which are recognized as indispensable by civilized peoples.”

I assume that our conflicts with the Taliban and al Qaeda are distinct, and I agree with the court that in reading the Convention we owe the President’s construction “great weight.” Maj. Op. at 41. But I believe the Convention’s language and structure compel the view that Common Article 3 covers the conflict with al Qaeda.

Thus, even if Article 3 of Geneva applies and even it if is self-executing law, it only requires “the judicial guarantees which are recognized as indispensable by civilized peoples.”

However, the Court might decide that it wants to “protect” aliens and “increase respect in the world community” by ruling against the Administration. So, the Court could decide that the military commissions are not what Geneva had in mind. Judge Williams, in his concurrence, thought that the trials do comport with Geneva. The Court created some new procedures in Rasul; they may create new procedures here.

In addition, the Solicitor General in the earlier cases (and in the present Hamdan case) takes positions that are broader than necessary, and thus more likely to lose. In Hamdan, the petitioners argued that Hamdan would be excluded for part of his trial. The military lawyers prosecuting him say that they do not envision trying to exclude him, that it is unnecessary to do so. But the Solicitor General has never brought that to the attention of the courts. I don’t know why.


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