[*I wrote three 11/29/07 essays on the eve of the Supreme Court's latest (and last) handling of the Guantanamo issue. These essays bring the issue up to date--and are perhaps a better place to begin in your reading.]
Bill Long 11/9/05
Understanding the Hamdan Case
We begin in the wake of 9/11. Three days after that attack, the President went to Congress to get support for authorization of the use of force in response to the attacks. After five terse "Whereas" clauses, mentioning the "acts of treacherous violence" that were committed against the US and its citizens, the Congress resolved, in Section 2:
"(a) In General.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any further acts of international terrorism against the United States by such nations, organizations or persons."
Then, on November 13, 2001, the President gave a "Military Order" concerning the "Detention, Treatment, and Trial of Certain Non-Citizens inthe War Against Terrorism," an eight- section order taking up five pages in the Nov. 16 Federal Register. The heart of the order is the authorization to the Secretary of Defense to "take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3 and, if the individual is to be tried, that such individual is tried only in accordance with section 4."
An individual subject to the order is defined in section 2 as someone who was or is believed to be a member of al Qaida or someone who has "engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor." Such a person may be detained at an "appropriate location," will be "treated humanely," will be "afforded adquate food, drinking water, shelter, clothing and medical treatment;" will be able to practice his religion "consistent with the requirements of such detention" and will be subject to further regulations promulgated by the Secretary of Defense. The Secretary in due course promulgated much more extensive regulations in March 2002 (see below).
Under Section 4 the Secretary "shall issue such orders and regulations, including orders for the appointment of one or more military commissions, as may be necessary to carry out subsection (a)." Subsection (a) provides that a person subject to the order will be tried by a military commission "for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death."
Authority to Set Up Military Commissions
The President cited four sources of his authority to establish these commissions: his inherent powers as Commander in Chief of the Armed forces (Constitution Article 2), Congress' Joint Resolution of September 14 (quoted above), and two sections of the Uniform Code of Military Justice, codified at 10 USC secs 821, 836. These two provisions of the UCMJ go back to the promulgation of the Code in 1950 and provide as follows:
"The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals." 10 USC 821.
"Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter." 10 USC 836(a).
The US District Court, considering these sources of authority, concluded that the President had overstepped his powers in setting up the commissions. It reasoned that under the Constitution and relevant case law it is Congress which has the power to set these up and that Congress' Joint Resolution of September 14 was too general to invoke as a source for this authority. In addition, it held that any combatant tried under the UCMJ rules had to be tried under the court-martial provisions of that Code unless and until a competent tribunal determined that the combatant was not entitled to POW status. The District Court was unwilling to grant the Administration a sort of carte blanche to establish the commissions as it saw fit.
The DC Circuit Court, however, reversed on this point, and held that both the Congressional Authorization and the two statutes cited above permitted the President to establish the commissions. In this regard, the court concluded that it wasn't necessary that Congress actually declare war in order to fulfill the Constitutional requirement under Article 1 (it didn't reach the question of whether the President had inherent powers, under Article II, to set up the commissions). In addition, the Yamashita and Quirin cases from WWII establish that the then Article 15 of the Articles of War (which now is 10 USC sec. 821) gives the President authority to establish these commissions. Thus, the Appeals Court concluded: "We therefore hodl that through the joint resoultion and the two statutes just mentioned, Congress authorized the military commission that will try Hamdan."
The next essay evaluates this argument and then moves to issues swirling around the Geneva Convention.
Copyright © 2004-2008 William R. Long