The United States Constitution

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I am concerned about the direction of the United States economy and politics, and about our declining influence in the world. I feel we are losing our moral and ethical bearings.

Tuesday, August 15, 2006

Are the Guantanamo Detainee Courts Legal?

Listen to this episode.


According to the Bush Administration, the Global War On Terror (or GLOT) is unprecedented - so unique, in fact, that our current court system is inadequate. Given the new situation, and invoking the wartime powers of Executive Branch, the Bush Administration has created, in effect, a new court system for the Guantanamo detainees.


The Administration argued that the Guantanamo detainees were, in effect, prisoners of war. However, unlike prisoners of previous wars, the detainees did not wear uniforms and were not soldiers of an established state. If they were, the rules of the Geneva Convention would apply, and they would be entitled to certain rights, such as:



  • the right of the defendant and the defendant's attorney to view the evidence against him

  • the right to discover how evidence was obtained, such as whether it was hearsay or induced by torture; and

  • the right to appeal


The test case, which the Supreme Court was asked to decide, was Hamdan v. Rumsfeld. Salim Ahmed Hamdan, a citizen of Yemen and a former driver for Osama Bin Laden, was captured in Afghanistan during the invasion, and held at Guantanamo. In July, 2004, he was charged with conspiracy to commit terrorism. The Bush administration tried him before a special military commission that had been set up for these types of detainees in 2002. In other words, Hamdan was not accorded the status of prisoner of war, in which case the Geneva Convention would have applied. In addition, the Administration determined that the standard Universal Code of Military Justice did not apply.


The Administration cited the Detainee Treatment Act (DTA) of 2005, a law passed by Congress regarding treatment of detainees, as the legal basis for this military commission. Congress also passed the Authorization to Use Military Force (AUMF), the 2001 resolution passed after 9/11 that many Democrats which they hadn't voted for.

The question was: is this enough for the Executive to create a special commission? Hamdan's lawyer didn't think so. He applied for a writ of habeas corpus, asserting that the commission was illegal.


On June 29, 2006, the Supreme Court decided, in a 5-3 decision, that Hamdan was correct. This military commission was illegal because it violated both the Universal Code of Military Justice and the Geneva Convention. Justice Roberts recused himself because he had ruled on the matter in a lower court before becoming Chief Justice. A number of commentators thought Justice Scalia should have recused himself as well because he made some remarks essentially saying that these people were not entitled to these rights, before he heard the case. But Justice Scalia stayed on the case, becoming one of the dissenters.


Thus, according to the Supreme Court decision, even the Guantanamo detainees, even if they are not US citizens, have some rights. In a case decided earlier, Hamdi v. Rumsfeld, the Court decided that a US citizen (Mr. Hamdi had dual US and Saudi Arabian citizenship) had a right to habeas corpus. The court left open the option for Congress to pass a law to revise the authority of military commissions. Justices Scalia, Alito, and Thomas each wrote dissenting opinions that left this option open.


The conclusion of all this is muddled at best. I found an excellent discussion of the impact of Hamdan v. Rumsfeld at the American Constitutional Society. You can listen to it here. Even the experts are divided. To be continued.


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