Bush’s Response to Hamdan Raises Questions, Panelists Say

David Graham

After a toughly worded opinion from the Supreme Court slapping down the Bush administration’s detention of terrorism suspects without criminal charges, the president’s response, a Military Commissions Bill, also looks problematic and likely will not be acted on in the current congressional session, said panelists at a Law School event Sept. 6. The implications of the Hamdan v. Rumsfeld decision were the focus of a panel featuring Professor Paul Stephan; Professor Maj. Sean Watts of the JAG Legal Center and School; Elisa Massimino, Washington, D.C., director of Human Rights First; David Graham, executive director of the JAG Legal Center and School; and Professor Deena Hurwitz, director of the Law School’s Human Rights Program, who served as moderator. The panelists spoke on their own behalf.

“[The Supreme Court] issued an opinion that was much more stringent, much more rigid, much more harsh, if you will, than they had to, and I think the consensus is that the Supreme Court not only knocked the unitary executive chip off the shoulder of the administration, they really knocked the administration on its collective keister. Now, why did they do that?” asked Graham. “I think they wanted to send a very clear message to this administration that we are in fact three branches of government. That we are in fact a government founded on checks and balances and if one of those branches of government—i.e. Congress—does not want to step forward and assume its responsibilities and exercise its prerogatives, then the Court will have absolutely no hesitation in stepping into that void.”

Salim Ahmed Hamdan, a citizen of Yemen and former driver for Osama bin Laden, was captured in 2001 and transferred to Guantanamo Bay in 2002. One year later he was deemed eligible for trial by the Bush administration’s military commission for unspecified crimes. No charges were brought against him until he filed a writ of habeas corpus, arguing that he had a right to due process. Hamdan was eventually charged with conspiracy to commit war crimes. In the Court’s 5-3 ruling reversing the U.S. Court of Appeals for the District of Columbia’s decision, the Court held that the administration did not have authority to set up special military commissions to handle detainees and that they were illegal under both the U.S. Uniform Code of Military Justice and the Geneva Conventions.

Since the Court’s ruling, the impact of the decision on U.S. policies and international law has been debated among lawyers, legislators, and government and military officials.

Addressing the impact on international law in her introduction, Hurwitz noted that “Hamdan may be one of the most important Supreme Court decisions involving international law in recent history, particularly at a time of such significant debate about references to the practices of other countries and the role of international law as a factor in United States courts’ consideration.”

The Supreme Court’s ruling that the administration’s military commissions violated the Geneva Conventions “has [made] the administration nervous, as it implicates the Federal War Crimes Act of 1996, which defines a prosecutable war crime as anything that constitutes a violation of Common Article 3, and also provides a death penalty,” Hurwitz said.

Common Article 3 of the Geneva Conventions provided for the first time a list of minimum due process guarantees for any international or domestic war crimes proceedings.

The government had bad facts in Hamdan, Stephan said, and bad facts result in bad law. “The purpose of Guantanamo and the purpose of the military commissions may have seemed clear at the time of their creation, but both seem to be decisions made out of a sense of exigency,” he said. “As time goes on, the sense of exigency disappears.” Justice Stephen Breyer alluded to this in his plurality opinion when he wrote "no emergency prevents consultation with congress," Stephan added.

A lack of a sense of emergency in Hamdan’s case and the government’s inability to articulate why they enacted the military commissions led the Supreme Court to be skeptical, Stephan suggested. Again, Justice Breyer provided the reasoning for the skepticism, Stephan said, "judicial insistence upon consultation with Congress does not weaken our nation’s ability to deal with danger."

A flaw in the Hamdan decision, Stephan pointed out, is that the Court could have applied the Detainee Treatment Act of 2005 to determine jurisdiction. This statute, which set jurisdiction for military commissions and combatant status review tribunals, was one the Court “felt free to ignore,” Stephan said.  

“The Court pretended to be speaking as statutory interpreters rather than as a body that applies international law directly and this is a mode of reasoning that is familiar to the Supreme Court.”

Additionally, Stephan noted the tension between the laws of war and international human rights law fueled by the component of conspiracy or the lack of it. Conspiracy is not found in the laws of war, but exists in international human rights law in the context of civil liability.  

The Hamdan ruling meant a change in the curriculum for the JAG Legal Center and School, said Watts. When President Bush was called on in 2002 to make a decision on whether Common Article 3 applies to the conflict with al Qaeda, his interpretation was based on geographic location instead of the character of the conflict. The School, Watts said, adopted that interpretation into its curriculum and began teaching Common Article 3 accordingly. After Hamdan v. Rumsfeld, the Supreme Court ruled that Article 3 does not apply to a geographic area, but to the character of the conflict. Because al Qaeda is not a nation, and the war with al Qaeda is happening in multiple geographic areas, Common Article 3 applies and the JAG school re-adopted its pre-2002 curriculum.

The United States now has to decide whether it is acceptable to live in a society where terrorism is “normal” or whether it wants to take action against terrorism, Massimino said. “How Congress deals with the military commissions and Common Article 3 will be an indication of where we are on that spectrum.”

Bush’s military commissions were instituted with very little information and input from uniformed military lawyers, Massimino said. Only now are military lawyers being consulted. She said she’s also not convinced that there has been a full exploration of the need to deviate from the Unified Code of Military Justice tribunal guidelines in detainee trials.

Furthermore, she explained, the focus of the discourse of the military commissions has been on Guantanamo Bay detainees, but there is an opportunity now to begin discussing issues that have not received much attention. For example, what will the personal- and subject-matter jurisdiction of these tribunals be? The early drafts of the administration’s proposal have provided very broad definitions of personal jurisdiction, enemy combatants, and terrorism. Subject-matter jurisdiction such as conspiracy and other violations that are not violations of traditional laws of war could be re-examined. It is also a good opportunity for the administration to clarify terms in Common Article 3, she said. The Bush administration has claimed that Common Article 3 is too vague, while military lawyers have testified to the contrary.

Massimino pointed out that Congress does not have much time this legislative session to make sense of the administration’s proposed bill. But, she predicted, bills will be passed in both houses authorizing some form of military commissions.

Graham concluded the discussion with his concerns about the president’s proposed Military Commissions Bill. The language potentially expands the scope of the conflict and expands presidential war-making power in addition to jurisdictional authority by not only protecting U.S. interests and U.S. personnel, but offenses against coalition interests and coalition partners, he said. The administration also is attempting to amend the War Crimes Act to specifically define Common Article 3 offenses. “This is nothing more than a transparent attempt to exempt out those offenses that might constitute offenses under that Article: outrages of dignity, humiliation, and degrading treatment.”

The panel was sponsored by the Law School’s Human Rights Program, the Judge Advocate General's Legal Center and School, and the J.B. Moore Society of International Law.