Prague Twin

Monday, July 03, 2006

Hamdan v. Rumsfeld

I received this link to Mark Steyn's latest rampage. Arch Stanton sent it to me via email and called me a champion of the Guatanamo Prisoners. Arch, I am a champion of the rule of law. Pay close attention.

When I first read the article, I was quite dismayed. According to the column, it seemed that not only had Stevens argued the case based soley on the Geneva Convention, but that al-Qaeda had been granted statehood by the ruling. "This couldn't be," I thought.

So I read Steven's opinion in it's entirety. What a relief! The case had not been ruled using the Geneva Convention, but Steven's did address the Geneva convention in the last 10% of his ruling. I'll get back to that, but most importantly, the case was decided on it's merits with reasoning that is quite easy to follow and backed by a plethora of precedent.

Getting to this nonsense about turning the Geneva convention on it's head, Hamdan was afforded rights that parties to a conflict "not international in nature" as afforded by Common Article 3 of all 4 Geneva Conventions. As Justice Steven's explains...

The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “ ‘international in scope,’ ” does not qualify as a “ ‘conflict not of an international character.’ ” 415 F. 3d, at 41. That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations.


Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory “Power” who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase “not of an international character” bears its literal meaning. See, e.g., J. Bentham, Introduction to the Principles of Morals and Legislation 6, 296 (J. Burns & H. Hart eds. 1970) (using the term “international law” as a “new though not inexpressive appellation” meaning “betwixt nation and nation”; defining “international” to include “mutual transactions between sovereigns as such”); Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, p. 1351 (1987)

Steven's has not turned the Genevea convention on it's head, he has upheld it by affording limited protection under Common Article 3 which affords legal protection for parties in a conflict that is not between two nations. Since Hamdan is being tried for his involvement with al-Qaeda and not with the Taliban, Hamdan meets the standards for this type of limited legal protection.

In fact, limiting language that would have rendered Common Article 3 applicable “especially [to] cases of civil war, colonial conflicts, or wars of religion,” was omitted from the final version of the Article, which coupled broader scope of application with a narrower range of rights than did earlier proposed iterations.

So the spirit of Common Article 3 is limited protection for a broadly defined set of combatants that are not members of a military of a nation. Had any kind of autonomy been confered upon al-Qaeda by this ruling, Hamdan would NOT qualify for protection under Common Article 3.

Now, getting to the meat of the ruling, this case fell short at nearly every corner. I've read plenty of opinions, and the reasoning in some can be pretty thin and hard to understand. Reading the Steven's opinion left no doubt in my mind as to the correctness of the ruling.

The validity of granting the writ of certiorari in the first place notwithstanding, the case is pretty open and shut. (In Justice Scalia's dissent he says, "..the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised."

I for one, am glad that they did not choose to pass on this case.

The first test of this case is based on Reid v. Covert, and specifically the treatise wrtiten by Colonel William Winthrop therein...

The classic treatise penned by Colonel William Winthrop, whom we have called “the ‘Blackstone of Military Law,’ ” Reid v. Covert, 354 U. S. 1 , n. 38 (1957) (plurality opinion), describes at least four preconditions for exercise of jurisdiction by a tribunal of the type convened to try Hamdan. First, “[a] military commission, (except where otherwise authorized by statute), can legally assume jurisdiction only of offenses committed within the field of the command of the convening commander.” Winthrop 836. The “field of command” in these circumstances means the “theatre of war.” Ibid. Second, the offense charged “must have been committed within the period of the war.”28 Id., at 837. No jurisdiction exists to try offenses “committed either before or after the war.” Ibid. Third, a military commission not established pursuant to martial law or an occupation may try only “[i]ndividuals of the enemy’s army who have been guilty of illegitimate warfare or other offences in violation of the laws of war” and members of one’s own army “who, in time of war, become chargeable with crimes or offences not cognizable, or triable, by the criminal courts or under the Articles of war.” Id., at 838. Finally, a law-of-war commission has jurisdiction to try only two kinds of offense: “Violations of the laws and usages of war cognizable by military tribunals only,” and “[b]reaches of military orders or regulations for which offenders are not legally triable by court-martial under the Articles of war.” Id., at 839.29

All partites agreed to this standard and so the object of this trial is actually quite simple...

The question is whether the preconditions designed to ensure that a military necessity exists to justify the use of this extraordinary tribunal have been satisfied here.

And the winner is.....

The charge’s shortcomings are not merely formal, but are indicative of a broader inability on the Executive’s part here to satisfy the most basic precondition—at least in the absence of specific congressional authorization—for establishment of military commissions: military necessity. Hamdan’s tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities. Cf. Rasul v. Bush, 542 U. S., at 487 (Kennedy, J., concurring in judgment) (observing that “Guantanamo Bay is … far removed from any hostilities”). Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001 and the AUMF. That may well be a crime,41 but it is not an offense that “by the law of war may be tried by military commissio[n].” 10 U. S. C. §821. None of the overt acts alleged to have been committed in furtherance of the agreement is itself a war crime, or even necessarily occurred during time of, or in a theater of, war. Any urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and he was not charged until mid-2004. These simply are not the circumstances in which, by any stretch of the historical evidence or this Court’s precedents, a military commission established by Executive Order under the authority of Article 21 of the UCMJ may lawfully try a person and subject him to punishment.

Particularly interesting is the caveat, "at least in the absence of specific congressional authorization." The court is essentially saying that if Congress wants to establish a military tribunal, they may have a constitutional right to do so. Throughout the case, the dual nature of war powers (i.e. the Executive working in concert with the Congress) was stressed.

So, had Hamdan lost this part of the test, the military tribunal itself was rightly struck down for it's procedural shortcomings. So even had the Government been able to convene a miltary tribunal, the type the President proposed was ruled to be illegal...

Whether or not the Government has charged Hamdan with an offense against the law of war cognizable by military commission, the commission lacks power to proceed. The UCMJ conditions the President’s use of military commissions on compliance not only with the American common law of war, but also with the rest of the UCMJ itself, insofar as applicable, and with the “rules and precepts of the law of nations,” Quirin, 317 U. S., at 28—including, inter alia, the four Geneva Conventions signed in 1949. See Yamashita, 327 U. S., at 20–21, 23–24. The procedures that the Government has decreed will govern Hamdan’s trial by commission violate these laws.

One of the major problems with the tribunal as conceived by the Government is outlined here..

Another striking feature of the rules governing Hamdan’s commission is that they permit the admission of any evidence that, in the opinion of the presiding officer, “would have probative value to a reasonable person.” §6(D)(1). Under this test, not only is testimonial hearsay and evidence obtained through coercion fully admissible, but neither live testimony nor witnesses’ written statements need be sworn. See §§6(D)(2)(b), (3). Moreover, the accused and his civilian counsel may be denied access to evidence in the form of “protected information” (which includes classified information as well as “information protected by law or rule from unauthorized disclosure” and “information concerning other national security interests,”

So on procedural grounds, the tribunals were challenged....

First, because Hamdan apparently is not subject to the death penalty (at least as matters now stand) and may receive a sentence shorter than 10 years’ imprisonment, he has no automatic right to review of the commission’s “final decision”44 before a federal court under the DTA. See §1005(e)(3), 119 Stat. 2743. Second, contrary to the Government’s assertion, there is a “basis to presume” that the procedures employed during Hamdan’s trial will violate the law: The procedures are described with particularity in Commission Order No. 1, and implementation of some of them has already occurred. One of Hamdan’s complaints is that he will be, and indeed already has been, excluded from his own trial. See Reply Brief for Petitioner 12; App. to Pet. for Cert. 45a. Under these circumstances, review of the procedures in advance of a “final decision”—the timing of which is left entirely to the discretion of the President under the DTA—is appropriate. We turn, then, to consider the merits of Hamdan’s procedural challenge.

The Government, then, must show the necessity of deviating from the normal rules. More specifically, the Government must show that following the traditional rules of tribunals is "impractical."

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. Assuming arguendo that the reasons articulated in the President’s Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism.52 Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.

And this part is the point where everyone should pay attention.......

The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: the right to be present. See 10 U. S. C. A. §839(c) (Supp. 2006). Whether or not that departure technically is “contrary to or inconsistent with” the terms of the UCMJ, 10 U. S. C. §836(a), the jettisoning of so basic a right cannot lightly be excused as “practicable.”

Under the circumstances, then, the rules applicable in courts-martial must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Article 36(b).

The Government’s objection that requiring compliance with the court-martial rules imposes an undue burden both ignores the plain meaning of Article 36(b) and misunderstands the purpose and the history of military commissions. The military commission was not born of a desire to dispense a more summary form of justice than is afforded by courts-martial; it developed, rather, as a tribunal of necessity to be employed when courts-martial lacked jurisdiction over either the accused or the subject matter. See Winthrop 831. Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections. That history explains why the military commission’s procedures typically have been the ones used by courts-martial. That the jurisdiction of the two tribunals today may sometimes overlap, see Madsen, 343 U. S., at 354, does not detract from the force of this history;53 Article 21 did not transform the military commission from a tribunal of true exigency into a more convenient adjudicatory tool. Article 36, confirming as much, strikes a careful balance between uniform procedure and the need to accommodate exigencies that may sometimes arise in a theater of war. That Article not having been complied with here, the rules specified for Hamdan’s trial are illegal.54

So now that Stevens has dismissed Hamdan's presumed status as a viable subject of a military tribunal, the tribunal itself is struck down as an illegal one.

Then, and only then, is the Geneva Convention brought in to further establish the right to a fair, or at least somewhat traditional trial for Hamdan.

Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.

The message of the court is clear: no puppet courts for conspiritors. They must be tried in something that looks like a court. In the case of people that actually commit specific war crimes, different rules may apply, but military tribunals will not be used to try periferal characters. This is a victory for the rule of law.

I agree with Stevens in his conclusion..

We have assumed, as we must, that the allegations made in the Government’s charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge—viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. 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. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.

"Bound to comply with the Rule of Law." I like the sound of that.

Real simple guys: this guy is bad, and if he did what you said he did, put it to trial. But get on with it already! And by the way, the rule of law is what seperates us from scum like Hamdan.


  • Great job,well put together.
    It should be difficult to argue with verifiable facts, but I'm sure there are some who will have no problem.
    It is good to have 'gut feelings', or at least a litle knowledge, supported by indisputable sources.

    By Blogger Cartledge, at 12:49 AM  

  • Fantastic post, praguetwin. I don't see why the ruling should so upset some on the right. What's wrong with having to abide by the "rule of law"? Isn't the "rule of law" what we are trying to bring to Iraq?

    If these guys are terrorists, then try them and convict them. It's that simple. The government should not be able to keep suspects "in perpetuity" just because it doesn't have the evidence to convict or does have the evidence to convict but obtained it illegally.

    By Blogger reality-based educator, at 2:52 AM  

  • Mike..My head was spinning trying to understand all the legalize put forth in your post..but I think I understand most of it.It is a great post as RBE says.I for one, appreciate you doing it.

    I will not argue whether we have the right to hold or try these individuals currently at Gitmo..what is important to me is that we no longer torture or hold them in subhuman conditions. Like the Japanese during WWII, they might very well be held until the end of the occupation of Iraq..if that ever comes to fruition. My wish and hope is that we try them and get on with it..I have read so many horror stories regarding the ages,living conditions and torture makes me cry. They are human beings and we can not lower ourselves to the standards of the terrorists..because we are then no better than they are.

    By Blogger dusty, at 3:41 AM  

  • Inspite of the fact that I disagree with you, my hat is off to you. Very thourogh and not the simple knee-jerk reaction that is all to prevalant from both the right and the left at times.

    By Anonymous Arch Stanton, at 7:10 AM  

  • Thanks everyone. I'm glad I didn't do all that work in vain.


    I think it will be very hard for anyone to argue against the merits of this decision. The only decent argument put forth by the dissenters is that SCOTUS had no juritiction on this case. This is a sort of last-resort argument, since the merits of the decision are quite sound.


    This case actually does not give others in Gitmo an automatic right to trial, but it does establish a precedent in how one can go about getting a trial. I think we are going to see a rash of filings for writ of habeas corpus from Gitmo detainees very soon.


    It gets pretty thick at times. It took over an hour just to give the Stevens opinion a good first read. Well worth the time, I must say. An interesting point about holding them until hostilities are over in Iraq. The problem I have with that, especially in the Hamdan case, is that he was picked up in Afghanistan.

    This made me think that perhaps one of the reasons that the job has not been finished there is that they want to be able to hold prisoners indefinately. As long as the conflict continues, they have a decent argument.

    I really don't think they should hold them indefinately. We have the means to try them, so let's get on with it!


    Thanks. Perhaps you could tell me on what grounds you disagree with the decision. Once again it seems like you are basing your opinion on right-wing kool-aid merchants like Mark Steyn. If not, please describe the legal points of this case with which you disagree.

    By Blogger Praguetwin, at 9:01 AM  

  • Excellent post. You sure did a lot of homework on this one. Your final sentence sums it up, that the rule of law is what separates us from terrorists.

    By Blogger Tom Harper, at 7:21 PM  

  • The flaw in the Common Article 3 discussion in Steven's opinion is that the Geneva Conventions do not protect "brigands" and "criminals" according to the official commentary. A fiction being peddled by opponents of the GWOT is that the Conventions cover anything that might be described as an "armed conflict." If you take the time to read the Conventions and the official commentary (all online) you will readily discern that Art. 3 was designed to apply only to a civil war or other internal conflict occurring in the territory of a signatory nation. Furthermore, the nations which drafted and adopted the 1949 Convention were very clear that "brigands," what we today would call terrorists, were not protected by Art. 3, a point Justice Thomas persuasively makes and which the plurality does not coherently rebut.

    By Blogger Diomedes, at 5:07 AM  

  • I keep coming back, hoping for a considered response to the challenge, PT.
    Too much logic and we are going to lose our conservative commentators.

    By Blogger Cartledge, at 8:26 PM  

  • I'm still waiting.

    Diomedes challenge to the inclusion of Geneva Convention Articles in the opinion are at least worth taking up, and I will be reading the Thomas opinion (I started).

    But the Geneva Convention's inclusion is superfluous.

    I am waiting to hear some complaint about how the case was argued using precedent. Some legal or logical challenge to what was a pretty solid opinion in my view.

    I'm patient, but I AM waiting, arch.

    By Blogger Praguetwin, at 9:31 PM  

  • It's 180 pages long and even though I'm tanned and rested from Florida, I just don't have the energy to read it all right now. Be patient though, because I will get to it.

    By Blogger Roger Fraley, at 5:51 AM  

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