What to Watch For in Hamdan
on Jun 29, 2006 at 7:37 am
My sense is that there’s been a good deal of confusion about just what the disputed issues are in the Hamdan case that the Court will likely decide today. (For some thoughts on why you should keep your eye on Justices Stevens and Kennedy, see here.)
Caveat: The following is a very truncated and simplified description:
There is little or no question about the constitutionality of the military commissions. (Although there is an outside possibility the Court will rule that the alien defendants are protected by the Due Process Clause (see footnote 15 of Rasul) and that the commissions fail to provide due process.)
Nor, in my view, is there any real question that Congress has as a general matter authorized the use of military commissions to try crimes against the laws of war. That was essentially the holding of cases such as Quirin and Yamashita, and subsequently Congress re-enacted 10 USC 821, without calling into question those decisions.
The questions in Hamdan are, instead, whether Congress has authorized the types of commissions that the President has created — i.e., whether the commissions, as presidentially authorized and as implemented, conform to statutory authority — and whether and to what extent these commissions violate any restrictions that the statutes expressly or implicitly impose.
The most important restriction is likely to be that the commissions must themselves comply with the laws of armed conflict (LOAC). (Several Justices pressed the SG on this point at oral argument, suggesting that if Congress authorized the military to convene trials for violations of the laws of war, surely Congress would have insisted that those trials themselves comply with the laws of war.)
And then the key question becomes what, exactly, the laws of armed conflict require with respect to such commissions, and whether these commissions meet those specifications. And in determining that question, most of the attention will likely be on Common Article 3 of the Geneva Conventions, which might apply here as a matter of treaty obligation (a question on which the DC Circuit split 2-1), and which in any event likely reflects the customary LOAC to which the commissions must adhere. (More on the importance of Common Article 3 here and here.)
The particular questions may include:
— Whether the LOAC permits the sort of vague “conspiracy” claim that is alleged against Hamdan and other defendants.
— Whether the commission is “a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” (The quote is from Common Article 3.)
— Whether the procedures, and means of appeal, in the President’s commission order, satisfy the LOAC.
(Of course, there are at least two antecedent questions in the case, too — namely, whether Congress has (constitutionally) stripped the Court of jurisdiction to hear the case in this posture, and whether the courts should abstain on reaching the merits before a trial is completed. But I predict the Court will reach the “merits” in at least some respect.)
