U.S. Supreme Court to Hear Case on Military Tribunals

By Anthony Dworkin

The Supreme Court announced today that it will hear a challenge to the legitimacy of the military commissions set up by President Bush in the aftermath of the 9/11 attacks to try suspected al-Qaeda terrorists and others allegedly conspiring with them against the security of the United States.  The decision sets up an important test of the tribunals and more broadly of the expansive powers claimed by the president in his "war on terror."

The case that the Supreme Court will hear was brought by Salim Ahmed Hamdan, a Yemeni citizen who worked as Osama bin Laden's driver in Afghanistan.  Hamdan was captured after the U.S. attack on Afghanistan and taken to Guantanamo Bay in June 2002.  In July 2003 Hamdan was among the first group of detainees designated by President Bush for trial by military commission.  His trial on conspiracy charges was underway in November 2004 when it was dramatically halted by a court ruling from a federal district court in Washington DC saying that the proceedings were illegitimate.

In July of this year, a three-judge panel of the D.C. Court of Appeals overturned the district court ruling and said that Hamdan's trial could proceed.  The Supreme Court will now decide which of these two lower court rulings is a better interpretation of the law.

Among the central questions raised in the case is whether the Geneva Conventions apply to the "war on terror."  The judge in the district court that upheld Hamdan's challenge to the commissions ruled that the Geneva Conventions covered everyone picked up during the war in Afghanistan, and that Hamdan should have been entitled to be brought before a "competent tribunal" to determine if he was eligible for prisoner of war status. 

The court of appeals rejected this argument, ruling that the president was able to declare that there was a separate armed conflict with al-Qaeda to which the Geneva Conventions did not apply.  One judge in the court of appeals panel filed a separate opinion in which he said that Common Article 3 of the Geneva Conventions -- a limited charter of rights applicable in "non-international conflicts" -- should be recognized as covering the war on terror.  However the force of this point was limited because the judge said that Hamdan did not have the right as an individual to bring a case against the U.S. government for breach of the conventions in an American court.

More broadly, the case will test whether the military commissions are a legitimate exercise of the president's commander-in-chief powers or an example of unchecked executive license.  The government's case rests heavily on a precedent from World War II, the Quirin case, in which the Supreme Court endorsed the trial of a group of German saboteurs before a military tribunal. 

However Hamdan's lawyers say their case is different because they dispute that Hamdan is engaged in any conflict with the United States.  They say that if the tribunal system is upheld, the president would have unbounded power to declare almost anyone to be an enemy combatant and bring them to trial (with a potential penalty of death or life imprisonment) before a court that lacks such due process protections as the right to be present at all times during the trial and a genuine right of appeal.

In an apparent attempt to head off the Supreme Court, the Defense Department announced a series of revisions to the military commissions earlier this year.  The new rules separated the tribunal's presiding officer (who will now decide on points of law) from the other members of the panel who vote on guilt or innocence, and stated that evidence that could not be shown to the defendant and his lawyer might be excluded if admitting it would deny the defendant a fair trial.

However critics of the tribunals point out that this still leaves all important decisions in the hands of the presiding officer and other military officials, with no right of appeal for the defendant outside the military hierarchy.

The trial of Salim Hamdan -- set to resume after the court of appeals decision -- will now be delayed until the Supreme Court reaches its decision.  The fate of other pending trials before the military commissions remains unclear. 

Related Chapters from Crimes of War: What the Public Should Know:

Terrorism

Related Links:

Military Commissions Home Page

U.S. Department of Defense

Hamdan vs. Rumsfeld (.pdf file)

U.S. Court of Appeals for the D.C. Circuit

July 15, 2005

Briefing Paper on U.S. Military Commissions

Human Rights Watch

July 2005

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