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Hamdan v. Rumsfeld: Court Invalidates Military Tribunals

The Supreme Court’s decision in Hamdan v. Rumsfeld (full text of opinion here), handed down on Thursday, invalidates the military tribunal system established by President Bush to try enemy combatants, terrorists who do not fall within the legal categories of the Geneva Convention. Salim Ahmad Hamdan, a Yemeni national, was captured by Afghan forces in 2002 and transferred to U.S. custody. A driver for Osama bin Laden, Hamdan was charged by the United States through the military tribunal system with aiding a terrorist organization and engaging in a criminal conspiracy to commit terrorist acts.

Hamdan argued that (1) he could not be tried by the military tribunals because they violated the Uniform Code of Military Justice and the Geneva Convention’s guarantee that a defendant see the evidence against him, and also that Congress had not exempted his case from judicial review by the Detainee Treatment Act of 2005, that (2) the military tribunals violated the Geneva Convention’s specific requirement that the defendant be allowed to be present at all stages of the trial, and that (3) conspiracy was not a violation of the law of war.

The 5-3 decision, in which Chief Justice John Roberts abstained, having been part of the three-judge panel which decided the case under review, means that the United States must either continue to hold enemy combatants without trial or else Congress must establish an alternative system. This holding was based on argument (1) alone, as their was no majority on the court as to the other issues. The Detainee Treatment Act was not invalidated, but was held not to apply because Congress did not explicitly exclude cases such as Hamdan’s which were pending. Holding that military tribunals must conform to the same rules as the Uniform Code of Military Justice, the court found that the tribunals were invalid for failure to allow the defendant to confront all witnesses and other evidence against him.

Legal scholar John Yoo, writing in USA Today, reflects the views of the dissenting justices:

By putting on hold military commissions to try terrorists for war crimes, five Supreme Court justices have made the legal system part of the problem, rather than part of the solution to the challenges of the war on terrorism. They tossed aside centuries of American history, judicial decisions of long standing, and a December 2005 law ordering them not to interfere with the military trials.

As commander in chief, President Bush has the authority to decide on wartime tactics and strategies. Presidents Washington, Jackson, Lincoln and FDR settled on military commissions, sometimes with congressional approval and sometimes without, as the best tool to punish and deter enemy war crimes. Bush used them to solve a difficult tension: how to try terrorists fairly without blowing intelligence sources and methods…

The full implications of this decision are not clear, and may not be clear for some time. None of the terrorists now held in detention will be set free, including Hamdan. This does deprive the government of a means of dealing with enemy combatants other than by detaining them indefinitely without trial. The fact that the decision in part rests on an interpretation that Congress did not intend to remove pending cases from review, but impliedly could have, means that Congress may be able to correct the problem created by this decision. While the court held that the Geneva Convention was applicable to enemy combatant cases, this obstacle also may be obviated by congressional action. Fuller analysis of this issue to come.
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Sowell is an Arabic linguist, attorney and the author of The Arab World: An Illustrated History. You can read more about his book at his website, Arab World Analysis.