Primer on Hamdan

I've been waiting to comment on Hamdan until I had a chance to read the rather lengthy decision (as opposed to just commenting on what makes it through the media filter). After reading it, I created a primer, since I believe that there's been a lot of misleading spin on this case in the MSM. If you scan the MSM accounts, you'd come away with the impression that Bush made up military commissions, that the president believes he doesn't have to abide by the law, and that the court doesn't think Hamdan should be detained anymore.

None of that is true, although there were two particularly important elements of the decision that were broader than military commissions. That being, that the so called "Blank Check" provision created by Congress doesn't supersede laws on, for example, military commissions (a restriction of presidential power), and that a portion of the Geneva Convention applies to al-Qaida, which has potential consequences beyond this decision.

Did the court rule that the government can't hold enemy combatants at Guantanamo Bay? The prison has to close now right?

No, the ruling was simply about the method of trying Hamdan, military commission versus court martial procedures, the latter of which give more rights to the accused. The Court ruled he can't be tried by military commission rules. Even Hamdan didn't contest the government's right to hold him. The ruling applied to roughly 40 combatants the government selected for war crimes trials. When you boil it down, the case was about how many rights Hamdan should get in court (and, thus, what kind of court could be used to try him).

So Congress never intended the president to get to use military commissions, right? That's something Bush just made up on his own because he thinks he doesn't have to answer to Congress, right?

Federal law specifically allows their use (and still does, recognizing that the exigency of war sometimes requires swift and special justice), but it limits it. It requires that the military commissions follow the rules of court martials (of soldiers - those rules give the accused more rights) unless it's IMPRACTICABLE. That's the key phrase this decision turns on. Was it "impracticable" to use court martial procedures in Hamdan's case? The court said no, partly because he's already being held as an enemy combatant and has been for several years. In otherwords, the court said, enough urgency wasn't present in his case to warrant using the commissions, such as would exist in the case of someone captured in the height of a specific battle (you might argue, that the battle was raging before Sept. 11, of course, just that we hadn't yet joined the fight in our own defense). The case boiled down to how you interpret the law on military commissions. The Bush administration interpreted it differently than the court.

President Bush made up the military commissions because he is trying to abuse authority on a level never seen in American history, right?

Wrong, General Winfield Scott created them while commander of occupied Mexican territory. President Bush didn't create military commissions. In fact, the Court noted, a form of them dates to George Washington's days when they were called the Board of General Officers. Washington used that tribunal to try British Major John Andre for spying during the Revolutionary War. They were used in the Civil War. The past analogies are a bit different because, during the Civil War, for example, court martials were more restricted.

How about in more recent times? Was President Bush trying to adopt one of the most aggressive procedures for trying enemy combatants since the Civil War?

They were not used in the Korean or Vietnamese wars, but they were used in World War II.

To try German saboteurs who snuck into this country to try to blow up military targets. And also to try a Japanese general captured in the Phillippines whose troops committed atrocities.

Bush is not barred from using military commissions in ALL cases. However, the general's trial in particular sparked controversy. He was sentenced to hang. Congress tightened the rules for military commissions. That is, the rules applied to military commissions must now be the same as those applied to courts-martial unless such uniformity proves impracticable. The last five words are key.

Also, both the Japanese general and the Germans were unambiguously operating under the law of war - during war. At issue here was whether Hamdan was operating in the theater of war. The Germans snuck across our borders during WWII. Hamdan's offenses occurred before Sept. 11. He wasn't caught redhanded in a battlefield. The reason this matters legally is that military commissions have so much power that they are supposed to be reserved for exigent circumstances, such as the height of battle.

Hamdan says he's being illegally held and should be released immediately and not tried, right?

No, he concedes a court martial has authority to try him. He just argued that the special military commission didn't. The court wrote: 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.

Breyer used it in his concurring opinion. He said Congress didn't give Bush a blank check. In other words, his authority isn't enough just to supersede that aforementioned language about what's impracticable. The media have jumped all over this one line. Thomas said he did have a blank check. The key is a law passed after Sept. 11, that read: In the present conflict, Congress has authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 ... in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." A lot of the disputes between Congress and the president, it seems to me, derive from good faith differing interpretations of how much power this language gave Bush (surveillance programs). It's true that this president is taking the most aggressive interpretation of Congressional language when it comes to fighting the War on Terror. Of course, the media always presume nefarious intent. I guess they'd prefer someone who always took the least aggressive read, such as Clinton (who, for example, tried terror suspects in civil court). I agree there's a balancing test, but personally I prefer that the president do everything possible to stop terrorists within the prescribed constrictions of law. There are some gray areas when it comes to how you interpret wording. But that's very different from alleging an "abuse of power" and so forth.

So they are saying that Hamdan didn't commit a crime and the government is just holding him unfairly right?

No. They made a ruling on how he could be tried. Four also felt that he is not accused of a specific crime - conspiracy - that qualifies him to be tried in a special military commission that accords the accused fewer rights than a court martial. That's because his crime didn't occur on the actual battlefield (in the theater of war). It didn't even occur during the war; he's accused of conspiracy leading up to Sept. 11, making this case very unusual. They said conspiracy charges don't apply, but Kennedy, the swing justice, didn't join that or dissent from it, so it's not clear how binding it is.

No. They are entitled to the presumption of innocence. And to have the charges read to them. They are not allowed to see all of the evidence against them. Here's the difference, as described by Breyer: To begin with, the structure and composition of the military commission deviate from conventional court-martial standards. Although these deviations raise questions about the fairness of the trial, no evident practical need explains them.

These structural differences between the military commissions and courts-martial--the concentration of functions, including legal decisionmaking, in a single executive official; the less rigorous standards for composition of the tribunal; and the creation of special review procedures in place of institutions created and regulated by Congress--remove safeguards that are important to the fairness of the proceedings and the independence of the court.

The rule here could permit admission of multiple hearsay and other forms of evidence generally prohibited on grounds of unreliability. Indeed, the commission regulations specifically contemplate admission of unsworn written statements...

The government's argument is that sharing classified information in the ongoing war on terror with the accused terrorist can jeopardize national security or safety. The defense attorney gets to learn it but can be barred from telling the client. Also, the rules of evidence are looser. Hearsay and evidence obtained through coercion is allowed for example. It's hard to imagine that anyone would think an enemy combatant in a war should get all of the rights accorded criminal defendants who are, say, American citizens in peace time. In fact, even this Court didn't argue that. More in a moment on that.

Why did the government create military commissions in the first place? Why not just use court martials?

This was a key point in the court's decision. The government created military commissions because of the exigency of war. In other words, sometimes the demands of the battlefield require swift justice. Court martials, notably, are for soldiers. They are the typical military courts. The question here is relating to military commissions, which are special military courts for wartime, and their application to enemy combatants. Of course, this is a different kind of war against a very different enemy. It's not surprising that people have different interpretations about how to handle it. But rather than understanding that point, the media jump to nefarious intent on the part of the Bush administration.

To use the rules of them. Unless Congress rewrites the law that applies, and there are certainly going to be attempts to do so.

Absolutely not. The Court specifically said that is not the case in the decision.

So President Bush abused his power by trying to ignore the law right? He thinks he's above the law right?

He just interpreted the law differently, in my opinion. He argued that the "impractical" line applied to Al Qaida and he certainly believes the so-called blank check phrasing passed by Congress gave him more power. In other words, the case revolved around interpretation of wording in the law and its application to Al Qaida. Reading media accounts you'd think that Bush doesn't pay any attention to Congress.

For example, the court wrote: Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility.

Five justices didn't agree with the Bush administration's interpretation; that's the way the system works (Stevens, Breyer, Souter, Ginsburg, Kennedy). Three didn't (Alito, Scalia, Thomas). Roberts sat it out because he ruled on the case on the appellate level.

Yes. The court's liberal justices sided against the president. The court's conservatives mainly did not. Kennedy was the key. Kennedy is a moderate who often sides with conservatives (and did so in the presidential election decision). He's become the new swing justice with O'Connor's departure, but he's more conservative than she was. Remember how liberals attacked Kennedy in the Bush/Gore decision? He's their favorite swing justice right now.

So Hamdan is never going to get out, right? The government is unfairly detaining him.

The whole controversy was over the method the government wants to use to try him. He isn't eligible for execution, anyway, and could get less than 10 years. Even the court said he could be held as an enemy combatant, however, so he won't get out for now regardless.

No, the government alleged more than that. According to the government: He was privy to knowledge of Sept. 11 in advance, "believ[ing]" all the while that bin Laden "and his associates were involved in" terrorist acts prior to and including the attacks of September 11, 2001." He also transported weapons used by al Qaeda members and bodyguards. He "drove or accompanied [O]sama bin Laden to various al Qaida-sponsored training camps, press conferences, or lectures," at which bin Laden encouraged attacks against Americans; and he received weapons training at al Qaeda-sponsored camps.

Not full protections. Yes, in relation to one part of the Convention, called Common Article 3. That's because that provision applies even if only one party is a signatory. In other words, obviously Al-Qaida doesn't abide by the Geneva Convention, and they didn't sign it. But we did, so there is one provision that the Court ruled applies based on interpretation of phrases. It says we need to use duly constituted courts. The Common Article 3 provision only applies in conflicts not of an international character. So the court had to interpret that phrase not to apply to Al-Qaida in this circumstance, and it ruled that being of an international character means conflicts between states. In ruling the opposite way, the appellate court had said the conflict with Al-Qaida is of an international character, so Geneva didn't apply.

Also a matter of interpretation. The Supreme Court ruled that it means regular military courts - court martial - unless there is a prevailing need to deviate from that established. The court felt there wasn't in the Hamdan case.

The court said that federal law limits the military commissions' use to offenses occurring under the law of war - i.e. on the battlefied. Thus, Geneva applies in the manner described above. Congress could rewrite legislation to broaden the application of military commissions beyond the law of war and to conspiracy cases. The more concerning part is whether the Geneva element of the Hamdan ruling will be extended to interrogations and detaining of Al-Qaida combatants under the same Common Article 3. The question will be whether such claims will be judicially enforcable. Violations of Common Article 3 are war crimes. Legal experts are still debating how far the Court opened the door.

That Congress stripped the court of jurisdiction when it passed the Detainee Treatment Act of 2005 that removed the authority from courts to rule on Guantanamo Bay suspects. The court found that did not apply retroactively to pending cases. In other words, Scalia argued it was the Court ignoring Congressional law.

Congress has the power to write laws governing such commissions; the executive has the power to execute them. This is how our system works. The founders came up with an intricate checks and balance system, and I think that's part of what makes our Democracy so incredible. I believe a certain deference and respect should result when the Court renders a decision, so I won't blast the Court. In contrast, note how liberals reacted when they didn't like the Court's decision in the presidential election.

The implications of the decision are the frightening part. For example, it could threaten the surveillance program because of the blank check provision that was the rationale for that program's legality. And it held that a provision of Geneva applies to Al-Qaida. Kennedy will remain the key.

Yes, I believe so. Typical is this paragraph from the Washington Post: For many in Washington, the decision echoed not simply as a matter of law but as a rebuke of a governing philosophy of a leader who at repeated turns has operated on the principle that it is better to act than to ask permission. This ethos is why many supporters find Bush an inspiring leader, and why many critics in this country and abroad react so viscerally against him. I don't believe that, in the case of the military commissions, Bush wasn't "asking permission." I believe he was interpreting the permission already granted from Congress differently than the Court ultimately did, but it seems to be a reasonable interpretation.

Or take this paragraph from the Washington Post: The decision to create military commissions to try terrorism suspects, instead of using civilian courts or courts-martial, represented one of the first steps by the administration after the al-Qaeda attacks on New York and Washington to create a new legal architecture for handling terrorism cases. He didn't "create them". Federal law passed by Congress allows them. They've been used in the past.

The Common Article 3 provision only applies in conflicts not of an international character. So the court had to interpret that phrase not to apply to Al-Qaida in this circumstance, and it ruled that being of an international character means conflicts between states.

The fellow was captured by American forces in Afghanistan fighting the Taliban and al Queda. That sounds pretty darn international to me. This is just one more case of the liberal judges inventing the law to obtain their desired policy.

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