Hamdan Revisited

The White House has proposed a model for the military tribunals that would try prisonerss in Guantanamo Bay, as well as other current detainees and future detainees. What they have proposed is nearly identical to what had been proposed for Hamdan.

Contrary to some of the rhetoric I've heard, no power was stripped from the President as a result of the Hamdan decision. It was the structure of the court that the court objected to. Furthermore, Congress had not approved the proposed tribunal. The juristiction issue was struck down due to lack of urgency. Hamdan had been in prison for nearly 4 years. Previous courts had allowed Congress to strip the court of the power to grant writs of certiorai in habeas corpus cases in cases where expediency was crucial. The court ruled that expediancy, a requirement for military tribunals, was not sufficient in Hamdan's case.

So although the court has already ruled that an almost identical tribunal as the one proposed is unlawful, they left the door open for Congress to approve a tribunal. They made it pretty clear that if the executive submits a plan to Congress, and Congress appoves that plan, the court will not interfere.

This is how it should be.

Let Congress vote on a tribunal that has the power to try people not members of al-Qaeda or the Taliban. Let them approve a plan that is summed up so well in the Washington Post article by John D. Hutson, a former top Navy lawyer. He said the court would work something like this...

We know you're guilty. We can't tell you why, but there's a guy, we can't tell you who, who told us something. We can't tell you what, but you're guilty.

Josef K. had it better.