When the president does it that means it is not illegal.
— Richard M. Nixon
The Supreme Court’s decision in Hamdan v. Rumsfeld is a victory for the rule of law and our constitutional system of checks and balances. Not only did the Court declare the military commissions established by the president at Guantánamo illegal, but in so doing, it reaffirmed that even in time of war — indeed, especially in time of war — the president is subject to the law.
The Court began by brushing aside the government’s contention that the Court lacks jurisdiction to decide the case, and that even if it has jurisdiction, it should abstain from exercising it— a position which would have given the government the last word as to the lawfulness of its own actions.
Next, the Court rejected the government’s argument that the military commissions had been authorized by Congress under the Authorization for the Use of Military Force (AUMF), a broadly worded 2001 law which the president has cited again and again to justify his post-9/11 excesses.
Finally, the Court held that the military commissions fail to meet the minimum standards of procedural fairness required under the Uniform Code of Military Justice (UCMJ), which Congress enacted in 1950 to govern our system of military law, and the Geneva Conventions, which Congress made a part of our law in 1949.
The UCMJ requires that the rules for military commissions and courts-martial must be “uniform insofar as practicable.” And what is known as Common Article 3 of the Geneva Conventions (the one provision common to all four conventions), provides that wartime detainees may not be sentenced or executed unless they have been tried “by a regularly constituted court, affording all the judicial guaranties which are recognized as indispensable by civilized peoples.”
The Guantánamo commissions did not meet either standard. Unlike the procedures prescribed by the UCMJ, the rules for the commissions failed to guarantee defendants the right to be present at their trial and to confront the evidence against them. They permitted the government to introduce testimony obtained by coercion and other unreliable evidence. In these and other respects, the commissions failed to afford defendants the “guaranties which are recognized as indispensable by civilized peoples.”
The Court’s invocation of the Geneva Conventions carries potential significance far beyond the narrow issue of military commissions.
Since taking office, this president has devoted himself to one overriding goal: the expansion of the powers of the presidency at the expense of the other branches of government. He has used the tragic events of 9/11 to accelerate that effort, claiming the authority to disregard innumerable laws, including laws that shield law-abiding Americans from unlawful electronic surveillance and detention without trial, and laws that prohibit the use of torture and cruel, inhuman and degrading treatment against persons detained by the government.
Rather than comply with these prohibitions, the president had lawyers within the executive branch devise arguments to evade them. Rather than acknowledge the binding authority of the Geneva Conventions, the attorney general of the United States dismissed them as “quaint” and “obsolete.” After Hamdan, they are quaint no longer. By acknowledging that Common Article 3 applies to the structure and procedures of military commissions, the Court has opened the door to an examination of other administration policies in the war on terror.
Article 3 speaks not only to the requirements of a fair trial but also to the conditions under which combatants may be detained, whatever their legal status. It requires that detainees “shall in all circumstances be treated humanely” and categorically prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”
Whether the Court will extend the logic of the Hamdan decision and hold the government accountable for its interrogation practices, only time will tell. But this is not the first time the justices have acted to curb the administration’s treatment of “enemy combatants,” and if the administration continues on its present course, it will not be the last.
The Court’s decision leaves the president with two options if he wishes to bring the detainees to trial: He can use the “regularly constituted” system of military courts-martial or he can seek congressional approval for reconstituted military commissions whose rules are in substantial conformity with the requirements of the UCMJ and the Geneva Conventions. Within hours of the Court’s ruling, congressional defenders of the administration were vowing to enact a law that would authorize the commissions. But before our lawmakers go down that path, they would do well to ask why the government cannot use the system of military justice which Congress has already put in place for conducting military trials — a system that has served us well for decades and enjoys the confidence of the American people. As Justice Kennedy wrote in his concurring opinion, “The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.”
But whatever the outcome of the congressional debates that are to come, the Court has fundamentally altered the landscape. It has reminded us and the people of the world that America remains a nation of laws. And it has reaffirmed the role of our system of checks and balances in preserving those laws by ensuring that no branch of government accumulates too much power. As Justice O’Connor wrote in 2004, “Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”