In a major ruling that ultimately may be tested in the Supreme Court, the D.C. Circuit on Friday upheld the military tribunals set up by the Bush Administration to try terrorism suspects for war crimes. It decided that Congress’ post-Sept. 11 terrorism resolution and two federal laws “authorized the military commission that will try {Salim Ahmed] Hamdan.” It also ruled that the Geneva Convention on prisoners of war gave Hamdan no right to enforce that treaty’s provisions in court.
The Supreme Court has not yet had a case on the constitutionality of the military commissions or on the legal rights of individuals facing trial by the military outside the normal court-martial system. Hamdan’s attorneys, led by Georgetown law professor Neal K. Katyal, have the option of seeking en banc review in the D.C. Circuit, or of taking the case directly to the Supreme Court.
Professor Katyal released the following statement: “The U.S. Court of Appeals’ ruling today is contrary to 200 years of constitutional law. We respectfully disagree with it. As the Supreme Court put it 9 years ago in an opinion authored by Justice Kennedy, ‘the Framers harbored a deep distrust of executive military power and military tribunals.’ Yet today’s ruling places absolute trust in the President, unchecked by the Constitution, statutes of Congress, and longstanding treaties ratified by the Senate of the United States. It gives the President the raw authority to expand military tribunals without limit, threatening the system of international law and armed conflict worldwide. As many retired Generals and Admirals of our military have stated, the cavalier treatment of individuals at Guantanamo Bay, and the setting aside of the Geneva Conventions in the military commission process, threatens our troops, our interests, and our way of life. These issues demand finality, and we will be seeking appropriate review.”
The tribunals, formally called commissions, were set up by President Bush two months after the Sept. 11, 2001, terrorist attacks on the United States. Only foreign nationals suspected of war crimes are subject to trial in those commissions. U.S. District Judge James Robertson had ruled last November that Hamdan could not be tried by a commission as presently constituted. That decision was reversed Friday.
The commissions are separate from the so-called “status review tribunals” that are examining the continued detention of terrorism suspects being held at the U.S. Navy prison at Guantanamo Bay, Cuba. Those entities do not try any charges, but simply examine whether detention of an individual continues to be justified. Most such tribunals have upheld prolonged captivity for foreign nationals at Guantanamo.
This is the first major opinion joined in by Circuit Judge John G. Roberts, who often is rumored to be a likely Bush appointee to the Supreme Court. The opinion, however, was written by Circuit Judge A. Raymond Randolph; Roberts joined that opinion. Senior Circuit Judge Stephen F. Williams wrote a brief concurring opinion. The case is Hamdan v. Rumsfeld (docket 04-5393). (Attorney General Albert Gonzales, also rumored to be a future Supreme Court nominee, has vigorously defended the military commissions in public comments, and had a significant role in their creation.)
Hamdan was captured in Afghanistan in late November 2001 by Afghan military forces, and handed over to the U.S. military. He was taken to Guantanamo. President Bush on July 3, 2003, found that Hamdan had engaged in terrorist acts against the U.S., thus making him subject to trial by commission. Accused of being a personal driver and a bodyguard for Al Qaeda leader Osama bin Laden, Hamdan faces charges of conspiracy to attack civilians, murder and destruction of property, and terrorism.
Hamdan remains at Guantanamo, designated an “enemy combatant.” A status review tribunal has found that his continued detention is required.
The D.C. Circuit decision Friday, while a broad victory for the government, was not a complete victory. The Circuit Court unanimously rejected the government’s argument that the federal courts had no authority to consider Hamdan’s habeas challenge to trial before a military panel. The judges rejected the argument that “comity” required the courts to abstain from deciding the habeas challenge to the President’s power to create the commissions.
The Court did say, though, that it would defer to the military commissions on one of the Geneva Convention issues — that is, on the meaning of the Convention’s “Common Article 3” on whether the tribunal is properly constituted. It said that Hamdan could seek to claim prisoner of war status before the military commission when he is tried.
The Court did not pass upon the President’s claim that he had inherent authority as commander-in-chief to create the military commissions. It upheld the commissions primarily on the grounds that Congress had authorized their creation. Its heaviest reliance was placed on the Sept. 11 jont resolution authorizing the use of force in reaction to the terrorist assaults on New York and Washington.
The Court also relied upon Article of War 15, now codified at 10 USC 821, authorizing military commissions, and 10 USCA 836, setting up procedures for military commissions.
Given those three enactments, plus prior Supreme Court precedent on wartime tribunals, the Circuit Court said “it is impossible to see any basis for Hamdan’s claim that Congress has not authorized military commissions.”
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