I look at the case of Salim Ahmed Hamdan from two perspectives. As a retired army colonel who served 30 years as an intelligence officer, I understand combating terrorism is a critical strategic objective. However, as one who believes in constitutional government and civil liberties, I believe we can fight terrorism and preserve individual liberty and constitutional government.
The U. S. Supreme Court has heard the case; the court will determine whether and under what conditions and limitations the President may use military commissions to determine the fate of enemy combatants.
The decision to try Hamdan and other Guantanamo detainees before “military commissions” is one of many instances where the Administration has asserted the prerogatives of an “imperial presidency.” Since 9/11, the Administration has fashioned a legal opinions arguing that the President Bush’s Article II powers as commander-in-chief and the Congressional Authorization for Use of Military Force permit him to pursue the war on terror unfettered by law, international treaties, Supreme Court precedent, and the Constitution itself.
This view of executive power was the basis for creating military commissions that are little more than “kangaroo courts,” approving “aggressive interrogation techniques” that we would certainly call torture if used against Americans, claiming the right to jail immigrants indefinitely pending deportation, and authorizing the National Security Agency to eavesdrop on U. S. citizens without a warrant in violation of law (FISA) and the 4th Amendment. The administration believes if it invokes 9/11 and “the war on terror” anything goes.
Too many Americans have bought into the notion that criticism of the President in time of war is unpatriotic. They find it ironic that Mr. Hamdan has sought justice from the system that joined al-Qaeda to destroy. However, among those who oppose the President’s claim of unchecked authority, is a group of military lawyers – regular officers who have risked their careers to defend unpopular clients and preserve the rule of law.
Last summer in pre-Katrina New Orleans, I was honored to participate in a ceremony honoring five of these military lawyers with the ACLU’s 2005 Medal of Liberty. The five had been detailed, by sheer luck of the draw, to defend Guantanamo detainees before the Military Commissions President Bush created to try them for war crimes. One was Lieutenant Commander Charles Swift, Hamdan’s attorney who charged that the commissions had “an Alice in Wonderland” quality. The JAG lawyers could have taken their distasteful assignment and done just enough to slip by, but they didn’t. They had sworn to support and defend the Constitution of the United States against all enemies – foreign and domestic. They took their oath seriously.
Working at night and in civilian clothes, they prepared an amicus brief to the Supreme Court challenging “the attempt by the Executive to oust Article III courts of jurisdiction over the military prosecution of individuals whom the President deems ‘enemy combatants.’” They argued:
The President here asserts the power to create a legal black hole, where a simulacrum of Article III justice is dispensed but justice in fact depends on the mercy of the Executive. Under this monarchical regime, those who fall into the black hole may not contest the jurisdiction, competency, or even the constitutionality of the military tribunals… (Westlaw 2004 WL 96765)
Indeed, the detention facility was located at Guantanamo precisely to evade review by Article III courts.
In Congressional testimony, Commander Swift argued that, by running roughshod over the UCMJ:
…we have lost sight of our fundamental values to the point Mr. Hamdan faces judgment for allegedly violating the law of war in a tribunal that fails to live up to the standards of justice require by the same law.
Initially, Commander Swift was detailed to represent Hamdan for the limited purpose of negotiating a guilty plea to an unspecified offense; Hamdan’s access to counsel was “conditioned on his willingness to negotiate such a plea.” Swift fought for his client.
Interestingly, the JAG defense lawyers were not alone in attacking the commissions. Three military prosecutors assigned to the Office of Military Commissions also attacked the fairness of the military commissions. In internal emails they complained that their boss had admitted the commissions were rigged to improve the odds of conviction.
One prosecutor alleged being told that members of the tribunals would be hand picked to ensure convictions and that exculpatory evidence for the defense would only be found in CIA documents that were being withheld for security reasons. They were concerned about the admissibility of evidence obtained through torture. Major Robert Preston wrote: “I lie awake worrying about this every night… writing a motion saying that the process will be full and fair when you don’t really believe it will be is kind of hard — particularly when you want to call yourself an officer and a lawyer.” All three of the JAG prosecutors were transferred to other duties at their request. The Department of Defense investigated their allegations, but, unsurprisingly, determined they were unfounded, the result of a communications breakdown in the office.
I admire the intellectual honesty and moral courage of the military lawyers who risked their careers to defend the rule of law. They understand that Constitutional limits on arbitrary executive power do not become inoperative “when they become inconvenient or when expediency dictates.” We must hope the Supreme Court has the fortitude to play its appointed role and check the excesses of the Executive Branch.
Mike Pheneger, Colonel, US Army (R)
National Board and National Executive Committee, ACLU
Two years ago, the Bush Administration tried to persuade the Supreme Court that Guantanamo detainees had no right to challenge their detention in court, and that Americans held as “enemy combatants” in the United States had no right to challenge the government’s evidence against them. The Administration lost both cases.
Yesterday, the Administration returned to the Supreme Court to defend the system of military commissions established by President Bush in November 2001. As in 2004, the Administration argued that the case should be dismissed without even considering the legality of the military commissions. Alternatively, the Administration urged the Court to recognize the President’s authority as commander-in-chief to create a system of military commissions that fails to meet even minimal standards of fairness and impartiality.
Once again, the Administration appears to have overplayed its hand. And, once again, it received a chilly reception from the Court.
That was particularly true with regard to the jurisdictional issue, which turns on the meaning of the Detainee Treatment Act adopted by Congress after Hamdan’s appeal had already been accepted for review by the Supreme Court. Solicitor General Paul Clement got into immediate trouble when he told the Court that Congress could suspend the writ of habeas corpus without ever saying so explicitly or clearly setting forth its reasons for doing so. He did not fare much better when he argued that the President could create new war crimes without congressional authorization and then have those war crimes tried before a military commission that Congress had never specifically approved.
There is a theme here, and it is a disturbing one. By pressing its jurisdictional arguments to the limit, the Administration has tried to marginalize the courts. By stressing the President’s inherent authority as commander-in-chief, the Administration has usurped or disregarded the role of Congress on a host of critical national security issues, including torture, detention, and surveillance. In the particular context of Hamdan case, that attitude has led to a system of military commissions in which the President effectively acts as judge, jury, and executioner. More broadly, it has invited the abuse of executive power that the framers foresaw when they created the system of checks and balances that this Administration seems to view as an inconvenience rather than as a basic safeguard of our constitutional democracy.
Whatever other disagreements we may have had with the Rehnquist Court, it jealously guarded its role in the system of checks and balances, and did not react well to arguments that the war on terrorism represents a blank check for the President to do whatever he sees fit. We will shortly see if the Roberts Court takes the same approach.
Today’s 90-minute oral argument in Hamdan v. Rumsfeld gave no clear indication of how the Court will rule, or even which questions it will choose to answer. Chief Justice Roberts was recused, and Justice Thomas characteristically silent, but the remaining seven justices were active in their questioning, particularly of Solicitor General Paul Clement. Experienced Court observers seem to have concluded that it was a tough day for the government; you can read two interesting accounts on SCOTUSblog and in the LA Times.
A few of the exchanges seemed especially notable. One question in the case involved the government’s decision to charge Hamdan with “conspiracy” - a crime that Hamdan’s counsel, Georgetown Law Professor Neal Katyal, persuasively argued does not exist under the laws of war. Justice Stevens asked the government whether the President had the authority to invent a new crime under of the laws of war, then charge a detainee for its violation. Yes, answered Clement: the President possesses the “pure constitutional power” to do so, if he chooses.
Justices Scalia and Alito - the only two justices whose sympathy for the government’s position was apparent - repeatedly advanced the argument that the Court’s consideration of the case was premature, and that the Court should wait until after the military commissions had rendered verdicts before evaluating their legitimacy. That would be a mistake, said Katyal: Hamdan contends that the commissions have no basis in law, and therefore the question whether he is being tried by a legitimate tribunal is a threshold one. If this were a criminal case, Justice Scalia asked, wouldn’t the Court wait until all proceedings were completed before weighing in? Wasn’t that the rule? Justice Kennedy - the likely swing vote in this case - interjected in support of Hamdan’s position. What if a “group of people” decided to hold someone and put him on trial for war crimes, he asked. Would the Court wait until after proceedings to rule on whether those people were a “regularly constituted court”? Wasn’t it the “historic function of habeas” to answer that question?
Justices Souter and Breyer were most concerned about the consequences of the government’s argument that Congress had divested the courts of jurisdiction over habeas corpus claims. Had Congress expressly suspended the writ of habeas corpus, as the Constitution permits only in times of “invasion or insurrection”? Should the Court require a clearer indication of congressional intent before reaching such a conclusion? In Souter’s words, was not suspension of habeas corpus “just about the most stupendously significant action” that Congress could take? Clement tried to deflect these questions but was repeatedly cut off by the justices. It was yet another demonstration that the justices do not take lightly attempts by the other branches to strip courts of their traditional authority.
In August of 2003, in a federal courtroom in San Francisco, a lawyer for the United States made an alarming statement. The court, the lawyer argued, was completely powerless to rule on the legitimacy of the Administration’s detention policies at Guantanamo Bay: detainees could be held without charge or trial, without access to lawyers, and without any recognized rights under U.S. or international law. Would this be the case, the judges inquired, “even if the claims were that [the government] was engaging in acts of torture or that it was summarily executing the detainees?” Yes, replied the government lawyer. The judges were incredulous. “To our knowledge,” they wrote, “prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition.” Gherebi v. Bush, 374 F.3d 727, 738 (9th Cir. 2004). (PDF file.)
The Supreme Court repudiated the government’s position in the landmark Rasul decision, but the Administration has sought new ways to deny justice to the 500 men and boys still detained at Guantanamo. Today the Court will hear the case of Salim Ahmed Hamdan, Osama Bin Laden’s driver, which began as a challenge to the Administration’s unprecedented military tribunal system, but has grown in significance since the enactment of the disastrous “Detainee Treatment Act” (popularly known as “Graham-Levin,” after Senate sponsors Lindsay Graham and Carl Levin), which purports to divest federal courts of jurisdiction over habeas corpus petitions submitted on behalf of Guantanamo detainees.
The military tribunal system at the heart of the case is terribly flawed, as the ACLU argued in a friend-of-the-court brief submitted in January. I had a chance to view some of the tribunal proceedings firsthand, and it’s hard to imagine that, with the whole world watching, we can’t do better than these kangaroo courts. The system, in the words of a former tribunal prosecutor, is “rigged,” with “handpicked” members who “will not acquit the detainees.” The President and Secretary of Defense – who, under military commission rules, are the final arbiters of guilt or innocence – have already publicly declared that the detainees are “bad people” and “among the most dangerous, best-trained, vicious killers on the face of the Earth.”
Contrary to any established system of law – whether derived from the Constitution, the Uniform Code of Military Justice, or our international treaty obligations – the military commission rules do not guarantee an independent tribunal, an impartial appeal or the exclusion of tesimony obtained through coercive interrogation techniques, although the ACLU has obtained abundant evidence that the detainees at Guantanamo have been subjected to brutal and degrading treatment. (PDF file, obtained through ACLU FOIA requests) Finally, there is no guarantee that, in the unlikely event that a detainee were actually acquitted by a military commission, he would be released from custody, because the Administration has already designated the detainees “unlawful combatants.” (For more related documents released to the ACLU under the Freedom of Information Act, see http://www.aclu.org/torturefoia.)
But much more may be at stake today than the legitimacy of the military tribunals. The Administration has moved to dismiss the Hamdan appeal – as well as all other Guantanamo cases pending in the lower courts – on the ground that Congress has stripped the courts of habeas jurisdiction, and the detainees have no rights under the Constitution to challenge their indefinite detention and conditions of confinement. In a more refined way, the Administration is once again advancing the argument that so astonished the federal judges in San Francisco. Today we’ll see whether the justices of the Supreme Court react similarly.
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