More on Hamdan

David Glazier, Associate Professor of Law at Loyola Law School, Los Angeles, has these thoughts on Hamdan:

The Court’s Hamdan decision marked a significant departure from the facile adherence to precedent advocated by military commission proponents. Although seemingly a departure from holdings in cases such as Quirin, Yamashita, and Eisentrager, in fact Hamdan arguably has more in common with those decisions than is apparent to the casual observer.

First, the Court’s decision to find jurisdiction over the case despite the DTA harks back to it’s unique July term to hear Quirin in the short interval between the convening of the 1942 commission and the all-but-inevitable executions that soon followed. That session was held despite the purported executive denial of any access to judicial review. I also think it is significant that the Eisentrage Court proceeded to consider all of the relevant legal issues presented despite the common perception that that case was disposed of on summary questions about aliens’ entitlement to the writ of habeas corpus. So the overall history of its military commission jurisprudence suggested that it should endeavor to reach the merits and it should have been no surprise that it did so in Hamdan.

Second, the Court correctly held that military commissions authorized in accordance with the law of war must also conform to the precepts of that body of law. While the Administration has implicitly justified commission employment as a “fundamental incident of waging war,” it has nevertheless avoided any serious effort to determine and apply any regulatory norms from the law of war to military commission procedure. While there is some room to argue exactly what those standards are, it is clear that treating the law of war as a serious corpus juris means that the executive cannot possibly have carte blanche to simply make up procedure from whole cloth, as it has essentially sought to do since November 2001. The conclusion that Common Article 3 of the 1949 Geneva Conventions provides the appropriate standard is certainly one credible alternative, although personally I think Additional Protocol I article 75 as declaratory of customary international law is even more sound. The Court’s conclusion that the Anglo-American notion of conspiracy does not provide a valid basis for trying an individual under the international law of war also reflected a well-reasoned effort to apply the appropriate legal standards.

Third, the Court continued the close conformance between its military commission and court-martial jurisprudence. Dating to its 1857 Dynes decision, the Court held that military law fell under congressional purview rather than Article III, and limited judicial review of courts-martial to collateral challenges to jurisdiction. This same approach was consistently taken with military commissions. The Court thus rejected Clement Vallandigham’s attempt to get direct review of his 1862 military commission conviction, but agreed that a commission had no jurisdiction over a citizen removed from actual hostilities in response to the habeas petition in ex parte Milligan. This limited jurisdictional analysis was thus essentially all the Court undertook during the WWII-era commission cases such as Quirin, Yamashita, and Eisentrager. The Court’s willingness to move beyond limited jurisdictional questions today and look more carefully at key procedural issues is completely consistent with modern federal court-martial jurisprudence, and while superficially a departure from WWII precedents, is fully consistent with their approach of conforming commission and court-martial jurisprudence.

Another element of the decision that I think particularly noteworthy was recognition of the historic conformance between military commission and court-martial procedure. The Court could have made an even stronger case had it examined in more detail the legislative history of the UCMJ articles and their Articles of War forbears commonly cited as constituting congressional authorization, but it reached the correct conclusion nevertheless. It was similarly impressive that the decision rejected the historical distortions propounded by commission proponents, recognizing instead that the military commission had a discreet origin during the Mexican War and that earlier events claimed as historic justification are at best antecedents vice direct precedent.

Obviously Hamdan’s lead civilian defense attorney, Neal Katyal, deserves significant credit for ensuring that through his own impressively crafted briefs, oral argument, and supporting cast of amici, the Court was given a wide range of possible grounds on which it might have chosen to overrule the most egregious aspects of the current ill-considered commission process. Not to be overlooked, however, should be the well-reasoned and courageous district court decision handed down by Judge James Robertson back in November, 2004 initially halting the commission process. Many elements in today’s decision can be traced directly to Judge Robertson’s opinion.