Supreme Court Overturns Guantanamo Military Tribunals

By Anthony Dworkin

The U.S. Supreme Court ruled on Thursday June 29 that the military tribunals set up by the Bush administration to try terrorist suspects at Guantanamo Bay are unlawful under U.S. and international law.  The ruling represents a sweeping defeat for President Bush and establishes for the first time a clear legal framework to regulate the U.S. administration's military campaign against al-Qaeda. 

The ruling's immediate impact on the Guantanamo detention regime may be limited.  The decision says nothing about the basic right to detain suspected terrorists, and leaves open the possibility that Congress could vote to reauthorize military tribunals under revised procedures or even to endorse the current system.  However the Supreme Court has decisively limited the power of the president and established that fundamental principles of the law of armed conflict apply to the so-called "war on terror".

By a margin of 5 to 3, the justices of the Supreme Court ruled that the president does not have the authority to set up military courts whose procedural rules depart significantly from the rules governing military trials of U.S. soldiers before courts-martial.  The Court's argument was framed above all in terms of the respective powers of the American President and Congress.  The Court said that under the statutory framework governing American military courts -- the Uniform Code of Military Justice -- military tribunals must follow the same procedures as courts-martial unless there is a compelling reason why they cannot.  The same rules also require that military tribunals be set up in accordance with international law.

The Supreme Court highlighted two aspects in particular of the military commission rules that departed from the standards for court-martial proceedings.  Most importantly, it pointed out that defendants at the tribunals -- unlike defendants in court-martial proceedings -- do not have the right to see all evidence against them.  Secondly, it said that the standards for admitting evidence fell below the threshold used in court-martial proceedings, allowing hearsay evidence, evidence obtained through coercion, and unsworn testimony.

Turning to international law, the Court produced a ruling that could have extremely important consequences.  It said that although the full body of the Geneva Conventions of 1949 might not apply to the conflict between the United States and al-Qaeda, there was one part of the law that does apply.  This is the article known as Common Article 3 (so-called because it appears as Article 3 in all four Geneva Conventions) which applies in conflicts that are not between two or more states.  This sets minimal standards governing the treatment of people who are not taking an active part in hostilities (including wounded or captured fighters), one of which is the requirement that they be tried before "regularly constituted" courts that offer generally recognized judicial guarantees.

Furthermore, Common Article 3 also includes restrictions on cruel treatment, torture, and humiliating and degrading treatment.  The Supreme Court's ruling therefore establishes that under international law, interrogation practices that violate these rules are forbidden in all circumstances.  It may open the way for new legal claims from detainees who may have been subjected to such treatment.  Moreover, under American law, violations of Common Article 3 are recognized as war crimes.  From now on, any American agent who uses such interrogation practices would be potentially liable to prosecution.

This ruling is likely to have important consequences for future interrogation policies.  One significant area in which it could have an effect concerns the the new field manual that the Pentagon is planning to introduce setting out rules for interrogation by U.S. forces.  There has been a widely reported argument within the administration between officials who wanted to incorporate the restrictions set out in Common Article 3 into the manual, and others (led by the Vice President's office) who wanted to have looser rules for the interrogation of "unlawful combatants".  According to press accounts, the Vice President and his team appeared to be prevailing in this internal battle.  However it is hard to see how the U.S. government can produce a set of rules for its armed forces that does not comply with the interpretation of international law produced by the country's Supreme Court.

In the short term, the administration appears to have three options in responding to the Court's ruling.  It can abandon the military tribunals and try terrorist suspects according to the rules governing ordinary courts-martial, as used in proceedings against American servicemen and women.  It can charge the suspects before normal U.S. civilian courts.  Or it can ask Congress to pass a new law approving a set of revised procedures for military tribunals.

One question left unclear by the Court's ruling is whether Congress would be able to pass a law authorizing the tribunals under their current procedures.  (Senator Arlen Spector has already introduced a bill along these lines.)  It would in effect be establishing a military court that a plurality of four Supreme Court justices had declared to be in violation of international law (the fifth justice who voted with the majority, Anthony Kennedy, did not endorse this particular part of the court's decision).  Whatever its ability to do so under U.S. law, Congress would surely contribute to a further weakening of respect for the United States in the world if it were to act in this way.  Moreover the administration, which is now attempting to emphasize its respect for international law, might not want to pursue a path that seemed to violate international law as the country's own highest court had interpreted it.

In a further setback for the prosecution of Salim Ahmed Hamdan himself, the plurality opinion of the Court also ruled that conspiracy, the only charge on which he was indicted, does not in itself constitute a violation of the laws of war.

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

Terrorism

Related Links:

Hamdan v. Rumsfeld (.pdf file)

Supreme Court Opinion

June 29, 2006

Military Commissions Home Page

U.S. Department of Defense

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