Creative Destruction

July 3, 2006

Rule of Law in SCOTUS Decision on Tribunals

Filed under: Current Events,International Politics,War — Brutus @ 10:47 pm

Having grown tired of arguing about the recent Supreme Court decision almost solely in terms of partisan policy, I decided to read the briefs submitted to the Court, as well as the oral arguments made before the Court. The case in question is Hamdan v. Rumsfeld, et al., Docket No. 05-184, and oral arguments before the Court were made on March 28, 2006. Copies of the briefs in PDF can be found here and a transcript of the oral arguments is found here. This post quotes liberally from the briefs and is quite long.
Needless to say, many of the arguments get fairly technical and arcane and are based on areas as diverse as Constitutional authority, domestic law, military law, international law, the laws of war (variously, law of war), the Geneva Conventions (of 1929 and 1948; variously, Geneva Convention), and precedent in judicial determinations and prior practice reaching back to the Revolutionary Era. This could be the subject of a year-long study at the graduate level. Those who have earned law degrees are best qualified to assess these arguments, but the arguments are nonetheless part of public record, so I’m entitled to form my own nonbinding opinions, just as anyone else. Mine is decidedly not a legal opinion.

Petitioner in Hamdan v. Rumsfeld filed for a Writ of Habeas Corpus, or in the alternative, a Writ of Mandemus. These are defined below as found here and here.

Habeas Corpus

Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment


It is a command issuing in the name of the sovereign authority from a superior court having jurisdiction, and is directed to some person, corporation, or, inferior court, within the jurisdiction of such superior court, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the superior court has previously determined, or at least supposes to be consonant to right and justice.

This writ was introduced to prevent disorders from a failure of justice; therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. Mandamus will not lie where the law has given another specific remedy.

I quote below from the summary section of Petitioner’s Brief and add a few of my own observations.

In 1950, Congress codified the jurisdiction and procedures of military courts in the Uniform Code of Military Justice (UCMJ) …

Military commissions apply international law to prosecute individuals for violations of the law of war. The law of war refers to a body of international law derived from treaties and customary international law. Among the most significant treaties codifying that law are the 1949 Geneva Conventions, ratified by the United States in 1955.

These remarks establish sources of legitimacy for military commissions, also known as tribunals, which include procedural limitations.

Congress adopted a resolution authorizing the President to use all necessary and appropriate force against limited targets for specified purposes. 115 Stat. 224 (2001) (AUMF). Congress did not mention commissions or declare war …

On November 13, 2001, despite the circumscribed AUMF, the President issued a Military Order establishing the first commissions in over fifty years. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833. The commission’s ever-shifting rules are starkly different from the protections mandated in the UCMJ. See, e.g., Military Commission Order No. 1 (Aug. 31, 2005). For example, they allow the accused to be excluded from portions of his trial, id. § 6(B)(3); permit the admission of unsworn statements in lieu of testimony, id. § 6(D); and allow the Secretary of Defense to terminate the proceedings, id. § 6(H)(1)-(6). The rules state that the limited protections
afforded to defendants, including the presumption of innocence, are not “right[s]” that are in any way “enforceable,” id. § 10, and can be withdrawn at any time, id. § 11.

These remarks establish an expansion of war powers granted by Congress to the executive branch and the President’s subsequent establishment of commissions in the absence of a state of war declared by Congress.

This case involves a critical question regarding the allocation of power among Congress, the President and the federal courts in the ongoing “war on terror.” The President has claimed the unilateral authority to try suspected terrorists wholly outside the traditional civilian and military judicial systems, for crimes defined by the President alone, under procedures lacking basic protections, before “judges” who are his chosen subordinates. He has further asserted the power to disregard treaty obligations that Congress has ratified and the federal courts repeatedly have enforced, obligations that protect not only Hamdan but also American servicemembers. Such assertions reach far beyond any war power ever conferred upon the Executive, even during declared wars.

These remarks establish how the President, in issuing his Military Order, acted to establish procedures that specifically fall outside judicial authority, most military authority, and even outside ratified treaties that protect not only foreign nationals detained by U.S. forces but our servicemembers detained by foreign countries. The issue, ultimately to be decided by the Supreme Court, is whether the Executive Branch overstepped its authority.

If the American people have lost faith in their judicial institutions and have determined to abandon that tradition, that step must be taken clearly and deliberately by Congress, not through an assertion of unilateral power by the President.

I made a similar argument about lost faith in comments to Off Colfax’s post called My Sentiments Exactly. As I recall, no one responded to my comment.

Unlike forward-looking detentions — which implicate war powers and where courts lack comparative expertise — tribunals that look retrospectively at guilt intrude on areas where civilian courts have competence and protect our Constitution’s checks and balances. E.g., In re Yamashita, 327 U.S. 1 (1946); Quirin, 317 U.S. 1; United States v. Grimley, 137 U.S. 147 (1890); Ex parte Milligan, 71 U.S. 2 (1866).

Petitioner admits that detentions of enemy combatants is a legitimate executive war power but asserts that tribunals, in the instance case, are an attempt to get around civilian authority.

For balance, I quote below from the summary section of Respondent’s Brief and add a few of my own observations.

On September 11, 2001, the nation came under attack, and nearly 3000 innocent civilians lost their lives. in the wake of those savage attacks, Congress recognized the president’s “authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States,” and authorized him to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, Preamble and § 2a, 115 Stat. 224.

This comes at the very beginning of the brief (following a couple formal paragraphs). Respondent wastes no time playing the 9/11 trump card. This card is played repeatedly and often by the government, and the expectation is that detractors and supporters of civil liberties will roll over, give away their liberty, and line up behind the presidency, which has demonstrably occurred more often than not.

The President expressly found that, “(t)o protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order * * * to be detained, and when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.” Military Order of Nov. 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 3 C.F.R. 918 (2002) (Military Order).

Both paragraphs above attempt to show authority for the establishment of tribunals.

The charge against petitioner entitles him to numerous protections under the federal regulations governing military commissions. Petitioner is entitled to appointed military legal counsel, 32 C.F.R.. 9.4(c)(2), and may retain a civilian attorney (which he has done), 32 C.F.R.. 9.4(c)(2)(iii)(b). Petitioner is entitled to the presumption of innocence, 32 C.F.R.. 9.5(b), proof beyond a reasonable doubt, 32 C.F.R.. 9.5(c), and the right to remain silent, 32 C.F.R.. 9.5(f ). He may confront witnesses against him, 32 C.F.R.. 9.5(i), and may subpoena his own witnesses, if reasonably available, 32 C.F.R.. 9.5(h). Petitioner may personally be present at every stage of the trial unless he engages in disruptive conduct or the prosecution introduces classified or otherwise protected information for which no adequate substitute is available and whose admission will not deprive him of a full and fair trial, 32 C.F.R.. 9.5(k); Military Commission Order No. 1 (Dep’t of Defense Aug. 31, 2005) § 6(b)(3) and (d)(5)(b).

This enumeration of Petitioner’s rights, especially those regarding his presence at trial and rules of evidence, comes from the Code of Federal Regulations. However, Respondent has ironically argued against these same rights elsewhere on the ground that Petitioner is not a U.S. citizen, and therefore, the C.F.R. doesn’t apply. Why this enumeration is present I can’t say.

Petitioner filed a petition for habeas corpus or mandamus in the District Court for the Western District of Washington. He sought to enjoin enforcement of the Military Order on the ground that trial before a military commission rather than a court-martial would be unconstitutional and would violate the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 801 et seq., and the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (Geneva Convention, 1949 Convention, or Convention).

Respondent’s summary of the Petitioner’s argument.

Petitioner’s pre-trial challenge to his military commission is jurisdictionally foreclosed by the Detainee Treatment Act of 2005 and fatally premature. The DTA removes jurisdiction over a broad class of actions by Guantanamo detainees, including this action, and establishes an exclusive review mechanism for challenging the final decisions of CSRTs or Military Commissions in the District of Columbia Circuit. The DTA establishes a statutory rule of abstention that eliminates all jurisdiction over petitioner’s pre-trial complaints about his Military Commission. The DTA thus reinforces the military abstention doctrine of Schlesinger v. Councilman, 420 U.S. 738 (1975) …

Respondent argues that the Supreme Court has no jurisdiction over Guantanamo detainees or the tribunals. Further, Respondent argues that Petitioner is allowed to challenge only the outcome of CSRTs, or Combatant Status Review Tribunals, not the legitimacy of the trbunals themselves.

The President had ample authority to convene the military commission against petitioner. Indeed, the DTA itself conclusively demonstrates that Congress is aware that the President has convened military commissions in the current conflict and that Congress recognizes his authority to do …

Even if Congress’s support for the President’s Military Order were not so clear, the President has the inherent authority to convene military commissions to try and punish captured enemy combatants in wartime — even in the absence of any statutory authorization. Indeed, military commissions have been convened by the President in numerous conflicts since the founding and have often been used during wartime without Congressional authorization.

Further arguments for the legitimacy of the tribunals.

Even if the Convention were judicially enforceable, it still would not aid petitioner. The President has determined that members and affiliates of al Qaeda, such as petitioner, are not covered by the Geneva Convention. That determination represents a core exercise of the President’s Commander-in-Chief and foreign affairs powers during wartime and is entitled to be given effect by the courts.

Pretty breathtaking. Respondent’s argument insists that the Geneva Convention can’t be enforced by the Supreme Court and further that it doesn’t count because the President says so and the courts should simply agree, even in the absence of a state of declared war.

The rules established by the UCMJ for courts-martial do not govern military commissions. The UCMJ does not purport to establish a comprehensive set of rules for military commissions. Instead, it takes pains to distinguish “military commissions” or “military tribunals” from the comprehensively regulated “courts-martial,” and, reflecting Congress’s traditional hands-off approach to military commissions (in contrast to courts-martial), imposes only a handful of requirements on those commissions.

Further arguments that tribunals operate outside established military law.

None of the UCMJ provisions that recognize the President’s authority to convene military commissions requires a formal declaration of war, and it is settled that the UCMJ applies to armed conflicts that the United States has prosecuted without a formal declaration of war. See, e.g., United States v. Anderson, 38 C.M.R. 386, 387 (C.M.A. 1968) (Vietnam); United States v. Bancroft, 11 C.M.R. 3, 5-6 (C.M.A. 1953) (Korea).

Another breathtaking assertion: the President can exercise war powers in the absence of war.

Oral arguments made before the Supreme Court are contained in an 83-page transcript and lack the cogency of the briefs. I therefore won’t quote from the oral arguments. I presume this is because oral arguments are mostly impromptu speechmaking, as opposed to carefully crafted writing. The Supreme Court justices also have a tendency to ask questions based on hypothetic extensions of the arguments offered, which sometimes extends logic beyond its breaking point in an attempt to clarify positions.

In the oral arguments, two primary issues (by my reading) receive the bulk of attention: (1) the Court’s jurisdiction over Petitioner’s petition and (2) whether the charge of conspiracy against Hamdan is itself properly addressed in a tribunal as conspiracy is not traditionally classified as a transgression of the law of war. The attorney for Petitioner was responsive and mostly on point throughout oral arguments. The attorney for Respondent often required refocusing by the justices and at times elicited laughter for how far he stretched in his arguments to justify the government’s positions. In particular, at p. 54, when asked pointedly whether Congress did or did not exercise its power to suspend the Court’s ability to issue a writ of habeas corpus by placing tribunals outside the Court’s jurisdiction, the attorney for Respondent said it was both (clearly not an option the way the question was posed but a good example of the logical gymnastics the attorney for Respondent went through).

The New York Times summarizes the Supreme Court’s decision here. I’ve been unable to locate an issued written opinion on-line as yet.

The majority opinion by Justice Stevens and a concurring opinion by Justice Anthony M. Kennedy, who also signed most of Justice Stevens’s opinion, indicated that finding a legislative solution would not necessarily be easy. In an important part of the ruling, the court held that a provision of the Geneva Conventions known as Common Article 3 applies to the Guantanamo detainees and is enforceable in federal court for their protection.

This provision requires humane treatment of captured combatants and prohibits trials except by “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people.”

The opinion made it clear that while this provision does not necessarily require the full range of protections of a civilian court or a military court martial, it does require observance of protections for defendants that are missing from the rules the administration has issued for military commissions. The flaws the court cited were the failure to guarantee the defendant the right to attend the trial and the prosecution’s ability under the rules to introduce hearsay evidence, unsworn testimony, and evidence obtained through coercion.

Justice Stevens said that the historical origin of military commissions was in their use re as a “tribunal of necessity” under wartime conditions. “Exigency lent the commission its legitimacy,” he said, “but did not further justify the wholesale jettisoning of procedural protections.”

Finally, the decision of the Supreme Court certainly demonstrates a significantly more penetrating understanding of the issues at hand than I can offer. Although the instant case is limited to one detainee, the outcome reaches far beyond his petition and strikes at the growth of what has become known recently as the “imperial presidency.” The few reports I’ve seen focus on the Court’s restriction of presidential war powers and omit the ultimate outcome for Hamdan, which I find a bit ironic.

We can undoubtedly argue further and second guess the wisdom of the Supreme Court’s decision. The flaunting of that body’s ruling by various opinion holders is inevitable, but it offends Off Colfax’s sensibilities, as it does mine. If we value the rule of law, as opposed to the unfettered exercise of power by one branch of government under the guise of national security, then we may have to accept that we can’t always have what we want just because we want it and are bound by principles of self-governance greater that the latest wrinkle in history.



  1. The full decsion is here.

    Comment by ohwilleke — July 4, 2006 @ 12:49 am | Reply

  2. Trust the lawyer to get the link to the opinion, that’s what I say.

    Comment by Off Colfax — July 4, 2006 @ 3:02 am | Reply

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