Yesterday I posted a short piece on the relative lack of court victories for the critics of the Bush Administration's various legal positions in the War on Terror.
I also noted that they were very likely to finally get one today. And get one they did. Today the Supreme Court released its long awaited decision in the matter of Hamdan v. Rumsfeld
and one of the central contentions of the Bush legal position was swept away.
Having thus confirmed after numerous bites of the apple what all good-thinking people know anyway, Hamdan
is now likely to be trumpeted from all corners of the globe as sweet vindication that the Alliance of Good was right all along and the evil Rovian Empire has suffered a righteous blow.
But hang on a minute there.
There is more to this case than meets the eye, especially if one has simply relied on Associated Press or NPR dispatches to explain it to you. As regular readers here know, what the MSM says Supreme Court opinions say and what they actually do say are quite often as different as night and day (a result, I think, of ignorance on the reporter's part combined with the usual tendency to herd-like group-think and not, say, evil intent).
Before I dive into the details and walk you through the opinion, though, a personal aside: For close to six years now I have been complaining loudly about left-wing groups who continue to call the President's actions "unconstitutional" or "illegal" even though they have been completely vindicated by an appellate court of final jurisdiction. My point was that while it is perfectly proper to argue that a case has been wrongly decided and should have gone the other way, to continue to label those who adhere to the controlling opinion as acting outside the law is at best intellectually indefensible and at worst active and hostile dishonesty that reflects badly and those so charging.
That being my belief, I shall hardly stoop to the same thing here. Hamdan
is the law and it is controlling; thus those actions it complains of are unconstitutional. I expect that, unlike the ACLU, the President will take this punch and adjust course without difficulty. (Unlike those noble souls at the ACLU, he, after all, has no fund raising letters to send out to keep the DOJ going). I agree with Justice Thomas' riveting and completely convincing dissent and will continue to argue, for reasons that will become clear below, that Hamdan was wrongly decided. But, the law is what it is, and it is the law.
Now, to the details. I expect many a conservative despairing at the news of Hamdan
is going to be a bit happier for reading the details. Justice Stevens may be the most left wing justice on the Court but he is no dummy, no hack; he's not as solid as Ginsburg, but he is solid enough. While it is true that Justice Scalia has demonstrated (with what must be distressing regularity to Justice Stevens) that quite often one can take an opinion or dissent of Justice Stevens, eviscerate it, mold the remains into a hat with flashing red lights that say "Because I Say So, That's Why!" and place it squarely on the liberal justice's bald pate, Stevens is not entirely unmindful of his responsibilities. And, so, many issues are dealt with in Hamdan
with requisite seriousness.
Enough preliminaries, let us begin:
The opinion was decided on a vote of 5-3, with new Chief Justice Roberts taking no part in the matter. The opinion was written by Justice Stevens for the majority in which justices, as is becoming all-too usual, joined certain sections of it and declined others. This fact renders certain important portions of the opinion a plurality opinion and other portions a majority opinion. Concurring opinions were written by Justices Bryer and Kennedy, while the three dissenting justices--Thomas, Scalia and Alito--all wrote separate dissents, some of which were joined in parts by the other dissenters.
Hamdan was captured in Afghanistan in 2001 and transferred to Guantanamo in 2002, whereupon he was notified of the President's intent to try him for conspiracy
[this is important, take note of it] to commit war crimes under a military commission. His lawsuit challenges the propriety of the military commission. The first thing to note here is that Hamdan concedes that he remains subject to "a court-martial constituted in accordance with the Uniform Code of Military Justice."
Hamdan's objection to the military commission plan was two-fold. First, that there is no such war crime as "conspiracy." Second, that the military commission's procedures violate "the most basic tenants of international and military law, including the principle that a defendant must be permitted to see and hear the evidence against him."
The court agreed with both arguments, and turned first to questions of jurisdiction. This discussion is interesting in that it raises some important questions about the shape of the federal appellate jurisdiction and Congress' power to grant and restrict it, but that is a discussion for another time. Suffice it to say that the Court found that the Detainee Treatment Act of 2005 did not strip the Court of jurisdiction to hear Hamdan's case. Nor did the Court agree with the Government's position, argued from precedent, that it should wait until the military commission was completely finished with its task before taking up any challenge to its procedures. The Court, rightly in my view, argued that the most relevant precedent in this regard is the famous Nazi saboteur case, Ex parte Quirin
, wherein the Court "convened a special Term to hear the case and expedited our review."
Having disposed of the jurisdictional and procedural objections of the Government, the Court then turned to the central question of the military commission itself.
The Court noted that military commissions were not mentioned in the Constitution nor created by statute, but were creatures of military necessity, formally born during the Mexican-American War (though with some foreshadowing in the Revolutionary Era) when General Scott established them to try both ordinary crimes and war crimes in occupied Mexico. They were again used during the Civil War for the same purpose.
Since the only source of such authority to convene military commissions is the Constitution, the courts have looked there for the foundation of such bodies. As the Court explains, past decisions have located the source of authority in the war-fighting powers therein. In Ex parte Milligan
, Chief Justice Chase held that while the President's authority may not intrude into that of Congress (nor, as is often missed, may Congress' authority intrude upon the President's), military commissions may sometimes be compelled by necessity, i.e. as in Mexico and during the Civil War.
Justice Stevens notes that this contention was never tested further, since by the time of Ex parte Quirin
, the Court had found that military commissions were expressly authorized by Congress in any case in Article of War 15. This article is present-day Article 21 of the Uniform Code of Military Justice which, among other things, states that "[t]he provisions of this code conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions...of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such military commissions...."
You would think that would resolve the matter. After all, the UCMJ was passed by Congress and it expressly contemplates the existence of military commissions and their jurisdiction.
However, says Justice Stevens, there is a problem. While it is true that Quirin
and the UCMJ establish that such commissions may exist if the President has the proper authority to fight a war, and while it is also true that the 2004 decision Hamdi v. Rumsfeld
confirmed that such authority to fight a war and thus the authority to convene military commissions did, in fact, exist, it is also true that after making the determination that the military commissions were properly constituted, the Quirin
court thereafter conducted an inquiry into whether or not the resulting commission complied with the law of war.
So, military commissions exist and are currently properly authorized under our law, but their procedures are still subject to the review of the judiciary. Please note here what the majority is conceding: the President has the authority to hold Hamdan as an enemy combatant and the authority to convene military commissions to try war crimes. That doesn't exactly read like an ACLU press release, does it? The Court concludes:
Together, the UCMJ, the AUMF [Authorization for the Use of Military Force], and the DTA [Detainee Treatment Act of 2005] at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the "Constitution and laws," including the law of war. Absent a more specific congressional authorization, the task of this Court is, as it was in Quirin, to decide whether Hamdan's military commission is so justified. It is to that inquiry we now turn.
The Court notes that the common law of military commissions, while sparse, speaks of their use in three circumstances: 1) where used as substitutes for civilian courts during periods of martial law (example: during the Civil War); 2) where used as courts during military occupations (example: applying German criminal law during the post-WWII German occupation; and 3) where used incident to the conduct of war to immediately try those of the enemy found to be violating the laws of war (example: trying a captured Japanese commander in the Philippines for failing to prevent his troops from committing war crimes).
Since we are dealing with neither an area of declared martial law nor occupation, as all parties agree, we are dealing with the third variety: the military commission designed to try war crimes.
Here the court turns to the important work of Colonel William Winthrop, whose treatise on the laws of war describes four pre-conditions for the exercise of jurisdiction by a military commission to try war crimes: 1) it can only assume jurisdiction for offenses committed in the field of command of the convening commander; 2) the offenses must have been committed during the conduct of the war; 3) it may only try those individuals of the enemy (and home) army who have been guilty of illegitimate warfare in discord with the laws of war; and 4) it can only try offenses related to the laws of war or the regulations in which it is fought under.
The Court characterizes these conditions as the best summary of the common law of military commissions acting in its law of war violation capacity.
It then concludes that since the bulk of the offenses charged against Hamdan occurred prior to the AUMF and, further, since the crime of conspiracy has never been considered an offense related to the laws of war, the military commission as composed to try Hamdan is not in accordance with the law. In addition to a long discussion over the charge of conspiracy with regard to military commissions, the Court notes, most persuasively in my opinion, that the learned jurists of the Nuremberg International Military Tribunal "pointedly refused to recognize as a violation of the laws of war conspiracy to commit war crimes."
Finally, the court adds, Hamdan's military commission was established by a general with no relation to the field of battle and long after the events complained of occurred. The Court thus concludes:
Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001 and the AUMF. That may well be a crime, but it is not an offense that "by the law of war may be tried by military commissio[n]." 10 U. S. C. 821. None of the overt acts alleged to have been committed in furtherance of the agreement is itself a war crime, or even necessarily occurred during time of, or in a theater of, war. Any urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and he was not charged until mid-2004. These simply are not the circumstances in which, by any stretch of the historical evidence or this Court's precedents, a military commission established by Executive Order under the authority of Article 21 of the UCMJ may lawfully try a person and subject him to punishment.
Next, the Court turned to the further analysis of whether or not the military commissions as established conform to the laws of war themselves. The military commission's governing orders provide for most of the standard set of due process protections that one would expect, but vary in two important regards: first, while defense's counsel may see all evidence against Hamdan, he may be prevented from seeing any evidence that the commission rules is classified and, second, non-sworn statements and hearsay (including those resulting from the interrogation of others) are largely admissible.
The historical use of military commission and their treatment under the UCMJ assumes that by and large they will have the same procedural make up as formal courts-martial, but some deviation from this standard (notably in trying the Japanese during WWII) have in the past been found by reviewing courts to be acceptable. In any case, modern statutes require military commissions to match regular court procedures "insofar as is practicable."
While the Court accepts the President's finding that the rules of the regular criminal law are not practicable (ha! take that ACLU!), it notes that the President has made no such finding with regard to the rules of regular courts-martial. Interestingly, the Court here seems to leave open the possibility that it would so defer to the President's judgment in this respect were he to make it. Here is the relevant passage:
Without reaching the question whether any provision of Commission Order No. 1 is strictly "contrary to or inconsistent with" other provisions of the UCMJ, we conclude that the "practicability" determination the President has made is insufficient to justify variances from the procedures governing courts-martial. Subsection (b) of Article 36 was added after World War II, and requires a different showing of impracticability from the one required by subsection (a). Subsection (a) requires that the rules the President promulgates for courts-martial, provost courts, and military commissions alike conform to those that govern procedures in Article III courts, "so far as he considers practicable." 10 U. S. C. 836(a) (emphasis added). Subsection (b), by contrast, demands that the rules applied in courts-martial, provost courts, and military commissions- whether or not they conform with the Federal Rules of Evidence-be "uniform insofar as practicable." 836(b) (emphasis added). Under the latter provision, then, the rules set forth in the Manual for Courts-Martial must apply to military commissions unless impracticable.
The President here has determined, pursuant to subsection (a), that it is impracticable to apply the rules and principles of law that govern "the trial of criminal cases in the United States district courts," 836(a), to Hamdan's commission. We assume that complete deference is owed that determination. The President has not, however, made a similar official determination that it is impracticable to apply the rules for courts-martial. And even if subsection (b)'s requirements may be satisfied without such an official determination, the requirements of that subsection are not satisfied here.
The Court then turns to the important question of whether or not the Geneva Conventions apply in any fashion to the dispute at hand. The Court does not deal with what has grown to be the central point of argument in international circles, i.e. whether Al-Qaeda combatants are entitled to the protection of the Geneva Convention. The Court did not deal with this matter because it was not necessary to dispose of the matter of hand. However, it is relevant and important to note that it was invited to opine on the larger question and did not.
Instead, the Court looked to certain provisions in Common Article 3 (so-called because it appears as Article 3 in all four of the Geneva Convention documents) that requires any contracting party (including the United States) to treat anyone detained in a combat not of an international nature with certain required procedures. This would include a requirement that Hamdan be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." The Court then concludes that the military commission convened to try Hamdan fails that test.
The Court concludes:
We have assumed, as we must, that the allegations made in the Government's charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge-viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities in order to prevent such harm. But 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.
What are we to conclude?
Let us first consider what Hamdan
, as wrongly decided as it was, did not do:
1) It did not rule that the President's power to detain enemy combatants for the duration of hostilities is unlawful, as the Left has charged;
2) It did not rule that the detention facility to hold some of these enemy combatants is illegal and contrary to international law, as the Left has charged;
3) It did not deny the legality of military commissions, as the Left has charged;
4) It did not overturn or overrule Ex parte Quirin
, which the court rightfully describes as central to all considerations in this area of law; and
5) It did not establish that Al-Qaeda members everywhere are entitled to prisoner of war status under the Geneva Conventions.
What it did do was:
1) Rule that the procedures of military commissions are subject to judicial review and must, so far as is practicable, mirror those of Article III courts;
2) That conspiracy is not a recognized war crime;
3) That due to the circumstances related to Hamdan's capture, he must be tried in a regularly constituted court under the Geneva Conventions;
4) Rule that it has jurisdiction regardless of the DTA and may review such matters before the conclusion of the military commission's work; and
5) Set forth common law guidelines for military commissions trying war crimes.
The case speaks for itself. It is what it is. It is in no small measure misguided. But I do not think it is the shattering blow the dissent thinks it is. For one, I don't necessarily think the application of the rules of courts-martial to the Gitmo detainees--who yet again have had their detention verified and re-affirmed by the Supreme Court--is fatal to our purposes.
Yes, the jurisdictional reasoning is weak. It is clear this case was heard in large part because the Court wanted it heard. That is troubling, especially considering the direct Congressional order on this front. And, yes, the Geneva Convention thing is also very weak, and potentially quite dangerous in that the stated requirement that only "regularly constituted courts" be used is a Constitutional end-run around the very procedure the Court has just held proper under our laws.
But, overall, I don't think anything here presents huge obstacles that cannot be overcome by some sharp legal reasoning.
It's a set-back, to be sure, but not as bad as it could have been.
As for the Executive and war-fighting, I think it would be wise of it to let the central teaching of Hamdan
sink in: a dead al-Qaeda fighter is not a detainee and need not be tried at all.
UPDATE: NRO's Robert Alt notes something I had meant to address above but forget: nothing in Hamdan
is beyond very simple Congressional action to correct:
While today's Hamdan decision gives conservatives reason for despair, there is reason to believe that it could have good electoral effects. The damage done by the Court may be undone by Congress by simple legislation, and press releases already issued by Senators Cornyn, Graham, and Kyl make clear that they plan to do just that.