Hamdan: Not Over Yet
June 30, 2006
Aziz Huq directs the Liberty and National Project at the Brennan Center for Justice. He is co-author of Unchecked and Unbalanced: Presidential Power in Times of Terror (New Press, 2007), and recipient of a 2006 Carnegie Scholars Fellowship.
The rule of law is a fragile, tenuous thing. It depends on the willingness of judges to stand fast to core principles. It needs legislators to eschew feverish panic and cheap partisan gain, especially in times of crisis. And it demands that officials of the executive branch respect the will of the people, embodied in laws enacted each day on Capitol Hill. We’ve not been doing this so well recently, as the president repeatedly indicates his willingness to cast aside law and Congress stands aside heedlessly. But yesterday, the Supreme Court put the other two branches to shame when it confirmed that “the executive is bound to comply with the rule of law that prevails in this jurisdiction.” Now it’s up to the other two branches to follow its wise lead.
The case is Hamdan v. Rumsfeld. At issue was the constitutionality of the military commissions established by a November 13, 2001, presidential order for detainees at Guantánamo Bay. These commissions were troubling for several reasons. Commission rules permitted defendants to be excluded from large portions of their own trial—and worse—to be denied the ability to review the evidence the government was using used against them. The rules further stacked the deck by allowing the prosecution to introduce any evidence, even if obtained by coercion. Moreover, final appeals from the commission were not before an independent magistrate, but went to Donald Rumsfeld.
Writing for a majority of five justices, Justice John Paul Stevens ruled that President George W. Bush’s military commissions violated both U.S. military law and the Geneva Conventions. Particularly noteworthy, five justices decisively rejected the vision of unilateral executive power deployed by the Bush Justice Department to justify torture, indefinite detention without judicial process and warrantless wiretapping. At the heart of all three of Hamdan’s majority opinions (by Stevens, Stephen Breyer and Anthony Kennedy) was confirmation that threats to the nation do not warrant abandonment of the Constitution’s checks and balances.
The Hamdan opinion also affirms the abiding relevance of judicial oversight of detentions. Guantánamo detainees—like those held in secret U.S. detention facilities around the world—have never had a meaningful chance to challenge the facts or law on which their detention is based. As a result, the executive has been able to run roughshod over the rights of innocents, detaining individuals on the slightest hint of suspicion as “enemy combatants.” The net result? A mass of unjustified detentions that blacken America’s name, reinforce the arguments of bin Laden and other nihilistic terrorists and make it harder for our allies to cooperate with us.
Nevertheless, Congress last December passed legislation introduced by Senator Lindsey Graham to curtail judicial review of the detentions at Guantánamo. Judicial review of the lawfulness of all detentions at Guantanamo is distinct and different from Hamdan's challenge to the military commissions. But the court in Hamdan held that the December 2005 legislation did not cut off any pending cases. Hence, vitally important challenges to the factual basis of detentions at Guantánamo—a question not at issue in Hamdan—can proceed. These challenges are critical if America is to establish once more its moral leadership, recapturing the clear moral high ground in its counter-terrorism efforts.
Equally important for America’s reputation, the Supreme Court affirmed America’s continuing allegiance to the Geneva Convention, which are the treaties that govern the treatment of those captured during wartime. Geneva protects not only enemies, but also our own troops. In a February 2002 executive order, President Bush rejected the legal understanding that the Geneva Conventions applied to people captured in global counter-terrorism operations. But now it is clear that there is a baseline of humane treatment which protects every person swept up in counter-terrorism operations. There will be no loophole that allows the government to avoid decent treatment for every captured person. And—most importantly of all—now it is clear that the administration’s decision to sanction torture and degrading, inhumane treatment violated the Geneva Conventions. Such violations trigger criminal sanctions under the War Crimes Act that Congress passed in 1996, as Justice Kennedy tellingly observed yesterday. In effect, the Supreme Court ruled yesterday that many of the policies endorsed and ordered by senior members of the present Administration violate federal criminal law.
In August 2002, the Justice Department opined that no investigation or prosecution of torture could begin without presidential sign-off. So we should hardly expect a flurry of activity that leads to indictments. Nevertheless, Special Counsel Pat Fitzgerald’s recent investigation demonstrates that non-partisan inquiries into criminal conduct of the executive branch are feasible.
Of course, the present Congress is not going to get this done. Indeed, we can expect nothing good from Congress in the near term. By grounding its decision in core separation-of-powers principles, the Court might have avoided unsettled questions of whether the Bill of Rights applies in every respect to non-citizens detained overseas. But instead the Court left its ruling vulnerable to mischief from Capitol Hill. Within hours of the decision, Senators Bill Frist, Jon Kyl, and Lindsey Graham issued statements signaling their intent to push back against the court. And Senator Arlen Specter has said he will hold hearings about Hamdan on July 11.
In fact, there is no need for new legislation: America has all the tools it needs to adjudicate the guilt or innocence of alleged terrorists via military courts-martial and the civilian courts. For example, Justice Thomas’s dissent argued that the majority ruling made it impossible to try terrorist suspects in a military tribunal without revealing classified evidence. But Military Rule of Evidence 505 already contains a procedure to vet and handle classified evidence without unwarranted disclosures. That rule adopts a model long used successfully in the civilian judicial system, and military courts have had no difficulty adopting it to their context. Any deviations from the system of military justice embodied in the courts-martial system, moreover, will necessarily fall short of public expectations: As Justice Kennedy noted, only long-established, enduring procedures already in use constitute the kind of “regularly constituted” tribunals that can do justice—and be seen across the world to do justice.