[*I wrote three 11/29/07 essays on the eve of the Supreme Court's latest (and last) handling of the Guantanamo issue. These essays bring the issue up to date--and are perhaps a better place to begin in your reading.]
Bill Long 11/9/05
Understanding Hamdan v. Rumsfeld
On November 7 the US Supreme Court granted certiorari in the case of Hamdan v. Rumsfeld in order to consider the legality of the military tribunals set up by Presidential order to hear the cases against the Guantanamo detainees, a group of about 500 men who still are in captivity in Guantanamo Bay, Cuba, four years after the current hostilities began. The purpose of these essays is to lay out some of the issues that the Court will consider. By granting review in November, the Court intends to hear oral arguments by April and then render a decision by the end of June, 2006. We begin first with the questions for review, followed by a review of the legal issues involved.
Questions Before the Court
The Petition for Review defined the questions in the following way:
1. Whether the military commission established by the President to try petitioner and others similarly situated for alleged war crimes in the "war on terror" is duly authorized under Congress' Authorization for the Use of Military Force (AUMF); the Uniform Code of Military Justice (UCMJ); or the inherent powers of the President? AND
2. Whether petitioner and others similarly situationed can obtain judicial enforcement from an Article III court of rights protected under the 1949 Geneval Convention in an action for a writ of habeas corpus challenging the legality of their detention by the Executive branch?
Taking apart these questions, we see that the first goes to the heart of the Military Commissions which, to date, have heard 0 cases. In order to answer this first question, we will need to know something about the action authorizing these Commissions (a November 2001 Presidential directive), the refinement of the tasks of these commissions (March 2002), the announcement in July 2003 that six unnamed individuals (one of whom was Hamdan) would be tried and the legal actions that ensued as a result.
These legal actions eventuated in two decisions. First, a Dec. 2004 decision by Judge Robertson, a federal District Judge for the District of Columbia, concluded that the President exceeded his power by establishing the Commissions and that Mr. Hamdan had a right to a court determination of whether he was being properly held under the Geneva Conventions. Second, in a unanimous decision by a three judge panel of the DC Circuit Court of Appeals in July 2005, the court reversed the District Court and held that the Commmissions were legal and that the prisoner had no rights under the Geneva Convention to question his detainment.
The case is important because it gives us a window into one aspect of the conduct of the first phases of the "War against Terror" initiated late in 2001 in response to the September 11, 2001 attacks on the World Trade Center Towers in NYC and the Pentagon in Washington DC. It brings back all the issues which have been pushed aside from the national consciousness in the wake of national and international tragedies since 9/11, issues such as the treatment of prisoners in Guantanamo, Cuba and Abu Ghraib prison in Iraq or the legal arguments circulating around the White House and State Department late in 2001 and early in 2002 to give the Bush Administration maximum "flexibility" in conducting the War against Terror. While these issues will not be on the legal docket when the case is heard by the Court, the case will provide the occasion for a review of that history and perhaps provide insights into the nature of the threat felt late in 2001/early 2002 as a result of the attacks of 9/11.
The Second Question
If the first question goes to the heart of the legality of these "Military Commissions," the second asks whether a detainee can make use of provisions of the (Third) Geneva Convention (relating to treatment of Prisoners of War) to get a federal court to intervene in his trial. The issue here relates to the designation of "detainee" that the Bush Administration has given to those held in Guantanamo. Whether they are detainees, and therefore without the protection of the Convention, or are prisoners of war under the meaning of the Convention, is one consideration the Court will have to reach. The other, more difficult, is whether an individual has rights under the Convention to question his detention or whether the Convention is only enforced by member states.
Thus, in summary, the Court will be considering the legality of the commissions and whether a detainee/prisoner has rights under the Third Geneva Convention to question his detention. The next essay reviews the background history of the case and moves to the first question.
Copyright © 2004-2008 William R. Long