Friday, June 30, 2006  

SCOTUS decision: Hamdan v. Rumsfeld

The US Supreme Court delivered two rulings this week that are particularly important to the war on terror and the rights of individuals as laid out in the Vienna Conventions, article 36,
Under Article 36 of the VCCR, local authorities must notify all detained foreigners “without delay” of their right to have their consulate informed of their detention. At the request of the national, the authorities must then notify the consulate without delay, facilitate consular communication and grant consular access to the detainee. According to the State Department the VCCR establishes a “baseline” for most obligations with respect to the treatment of detained foreign nationals in the United States as well as US citizens detained abroad.

In this post,I am going to look at Hamdan v. Rumfeld., a decision handed down Thursday.

If you want to read the slip report for yourself, you can find it on the recent decisions page. The Washington Post has a much more user-friendly link here

IN brief, the Supremes found for Hamdan and ruled against Rumsfeld, saying that military tribunals violate both the Uniform Code of Military Justice, 10 USC 801 et seq, and Common article 3 of the Third Geneva Convetnion.

As a reminder, article 6 of the US Constitution make any foreign treaty which the US has signed and ratified the law of the land. (I'll bring this up again in regards to the Vienna Conventions), so articles therein have to be followed.
Either that, or the US has two choices: a)change article 6 of the Constitution, or b)opt out of the Geneva Conventions and become a pariah with no back up plan or protection.

In a 5-3 decision, the Court basically handed Bush and co their heads back on a plate, insisting that due process- which includes charges- be brought to bear on the cases of the 400+ known detainees in Guantanamo.
Until now, less than a handful have actually been charged with anything.

Background: Salim Hamdan,a Yemeni, and a former driver for Osama bin Laden, has been in Gitmo 4 years. He was brought there in 2002 and a year later charged with unspecified crimes. In 2004, he was charged with conspiracy to commit offences triable by a military commission.(pretty much terrorism and other things against the US)

In the past, prisoners have been brought before military tribunals and defense lawyers have complained of having limited access to their clients, not being able to examine the evidence the government has, or of having been given documents so heavily redacted as to render them useless.

Hamdan's lawyer filed filed a petition for writs of habeus corpus, etc. stating that Bush had no authority to move forward with these charges because a) Congress has not granted him these powers, b) it is against the basic rules of war, and c)these tribunals are against national and international law and go against the right of a defendent to see and hear the evidence against him. (nb: this completely in contradiction to US law).

The majority opinion agreed with Hamdan's lawyer:
Recognizing, as we did over a half-century ago, that trial by military commission is an extraordinary measure raising important questions about the balance of powers in our constitutional structure, Ex parte Quirin, 317 U. S. 1, 19 (1942), we granted certiorari. 546 U. S. ___ (2005).

For the reasons that follow, we conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions. Four of us also conclude, see Part V, infra, that the offense with which Hamdan has been charged is not an "offens[e] that by ... the law of war may be tried by military commissions." 10 U. S. C. §821.
The opinion details the charges against Hamdan which include charges to conspire against the US since 1996, various unspecified actions and statements about Al Qaeda activity which do not even mention Hamdan.

The Court goes on to say:
The charge against Hamdan, described in detail in Part I, supra, alleges a conspiracy extending over a number of years, from 1996 to November 2001.30 All but two months of that more than 5-year-long period preceded the attacks of September 11, 2001, and the enactment of the AUMF--the Act of Congress on which the Government relies for exercise of its war powers and thus for its authority to convene military commissions.31 Neither the purported agreement with Osama bin Laden and others to commit war crimes, nor a single overt act, is alleged to have occurred in a theater of war or on any specified date after September 11, 2001. None of the overt acts that Hamdan is alleged to have committed violates the law of war.

These facts alone cast doubt on the legality of the charge and, hence, the commission; as Winthrop makes plain, the offense alleged must have been committed both in a theater of war and during, not before, the relevant conflict. But the deficiencies in the time and place allegations also underscore--indeed are symptomatic of--the most serious defect of this charge: The offense it alleges is not triable by law-of-war military commission. See Yamashita, 327 U. S., at 13 ("Neither congressional action nor the military orders constituting the commission authorized it to place petitioner on trial unless the charge proffered against him is of a violation of the law of war").32

The Court strongly recommended court martial hearing where at least a modicum of legal procedure is followed.

In fact, the Court found that Bush had violated both US/UCMJ and international law by pushing for the tribunals.

Judge Stevens adds an interesting point: that military tribunals are inherently unable to try conspiracy charges (what Hamdan is charged with) and that there is no provision for conspiracy charges either in the Geneva Conventions, the Nuremburg Trials or law-of-war military commissions.

In a dissenting opinion, Scalia makes an interesting comment: "It is not clear where the Court derives the authority- or the audacity- to contradict this determination," in reference to the Military Order of 11/01, in which the president basically suspended the rights to a fair trial on people arrested on suspicion of terrorism.

I would suggest Justice Scalia review the Court's mandate as laid out in the Constitution- and chief among them is to determine the constitutionality of such behavior, and to uphold the Constitution, including article 6, which recognizes the authority of international treatis, etc. signed and ratified by the US.

Judge Thomas also disagreed, in part, because he supports the Bush administration's view that Hamdan is "an illegal combattant." Thomas was incensed enough with the Majority opinion that he read his opinion from the bench.

Alito also disagreed, saying that he felt the military tribunals met the definition of a regularly consituted court.

On the other hand, the Court did not rule on whether to close Gitmo itself, nor did it rule on the issue of speedy trials.

In fact, the Court acknowleged that a suitable legal solution for trials should be found by Congress.

What the Court did do has far-reaching consequences.

By stating that Article 3 of the Geneva Conventions apply to Hamdan, the Court rejects the Bush adminstration's designation of enemy combatant and renders those held in Guantanamo under the protection of the Geneva Conventions. And since Hamdan is charged with conspiracy with Al Qaeda, this may indicate that the Court sees a future case in which Al-Qaeda combatants captured in Iraq (if we don't kill them first, like Zarqawi) also fall under the protection of the Geneva Conventions.

The Court (the majority) also rejects the Bush administration's practice of using the war on terror to undercut both the powers of Congress and the Constitution. Stevens specifically stated, ""The court's conclusion ultimately rests upon a single ground: Congress has not issued the executive a blank check."

The Court found that federal courts still have jurisdiction over the Gitmos detainees, the Court has opened the door to more oprn hearings, and, hopefully, greater disclosure of evidence held by the prosecution.

In addition, in ruling that the president could not interpret congressional authorization for the "use of military force" issued shortly after 9/11, as a blanket permission to establish military tribunals, the Court opened the door to questioning the legality of the secret wiretapping and the monitoring of bank accounts and internet traffic.

All this is a substantial blow to Bush who has vowed to find a way around Thursday's rulings. Judge Stevens is either too decent or very naive to believe that following is going to happen:
The executive is bound to comply with the Rule of Law that prevails in this jurisdiction
(end of opinion)

This ruling may well be the bell on the cat. The government will probably do its best to keep any federal hearings of Gitmos detainee cases as closed as possible, but by sending the Executive a message that it cannot twist federal and international law into a pretzel and then hogtie Congress with it, the Court made it very likely that legal demands for transparency will prevail, although the Bush administration will fight them tooth and nail.

The other thing that will probably come out of all this is the info that will be revealed in the trials themselves (once Congress figures out what to do and that will takes awhile). We know now that many detainees were sold to the Americans, that confessions were obtained under torture, that people were caught up in wholesale raids. We also know that the conditions in Gitmo went beyond deplorable, and that by putting the detainees beyond the protection of the Geneva Conventions, Bush put them beyond the pale of human decency and due process.

At this point, it is not an issue of close Gitmo or not. Closing Gitmo would necessitate one of two things: warehousing the remaining detainees in some other black hole and thus engaging in a shellgame, or b)Kangeroo Courts that send them swiftly towards eternal incarceration. Neither of these is acceptable.

What is needed, is clear and concise guidelines on trying the detainees- guidelines that are in accordance with the Geneva Conventions and federal law, and if they are guilty, then they are guilty, but if they are innocent- they need to be released and compensated.

I would imagine that Hamdan's lawyers are working on a motion for a speedy trial-after 4 years in Gitmo, he deserves that much, at least.

And we should be grateful that the Supreme Court stood up to Bush and upheld the power of the Judicial and Executive branches as well as the Constitution and the obligation to observe international treaties. In 2004, the President declared himself above both and set up the military tribunals and most people didn't care because it was the Gitmo detainees, but, by the same token, he declared Congress had authorized him to spy/record citizen's phone conversation and bank accounts - now it's domestic. And he may continue to cite the "use of military force" as domestic justification for suspending sections of the Constitution, and for indefinite detainment without trial of citizens and permanent residents charged with intent to commit terror, conspiracy to commit terror, thinking about committing terror, to charges of conspiting to undermine the authority of the president.

Sounds a bit far-fetched, I am sure- but then wholescale domestic wiretapping (transcripts and all) being done in the event of a future need would never have been though possible six years ago.

And, finally, and maybe most importantly, the Court's ruling on Hamdan v. Rumsfeld may put the US back on the path of being a law-abiding, fair-minded nation which stands as an example to its enemies and friends alike.

However, unlike Stevens, I have my doubts.
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