JURIST Special Guest Columnist Jonathan Hafetz, Associate Counsel with the Brennan Center for Justice at New York University School of Law and co-author of amicus briefs in Hamdan v. Rumsfeld and the Guantanamo detainee litigation, says that although Hamdan directly addressed only the handful of cases in which the administration has charged individuals before military commissions, the ruling reinforces why individuals cannot be detained at Guantanamo without a lawful process and undermines the administration’s overall position on detentions in key respects…

The Supreme Court’s recent decision in Hamdan v. Rumsfeld marks a significant setback for the President’s claims of unchecked executive power. In Hamdan, the Supreme Court invalidated the military commissions established by the President at Guantánamo to try suspected terrorists of war-related crimes. Yet, Guantánamo’s future remains uncertain. Hamdan directly addressed only the handful of cases in which the administration has charged individuals before commissions; two lead lawsuits affecting the 460 detainees held indefinitely without charge and without due process are still pending in the District of Columbia Circuit, while potential legislation affecting both detention and trials at Guantánamo looms on the horizon. Still, Hamdan reinforces why individuals cannot be detained at Guantánamo without a lawful process and undermines the administration’s overall position in key respects.

In Hamdan, the Court recognized the President’s power to create military commissions generally, but concluded that the commissions established at Guantánamo were unlawful because they violated the Uniform Code of Military Justice (UCMJ) and Geneva Conventions of 1949. Specifically, the Court found that the commissions violated Article 36(b) of the UCMJ because the rules prescribed by the President deviated significantly and without justification from the procedures used in courts-martial, the benchmark of military justice. The Court further concluded that the commissions violated Common Article 3 of the Geneva Conventions of 1949, which establish minimal safeguards for the treatment of prisoners during wartime, because they were not “regularly constituted” courts.

But Guantánamo is not principally a site for military commissions; indeed, as noted above, only a handful of detainees have been charged. Still, for the remaining 460 detainees, held in legal limbo and without any lawful process, the decision is significant in several respects. First, as a threshold matter, the Court rejected the government’s contention that the recently enacted Detainee Treatment Act of 2005 (“DTA”) eliminated federal habeas corpus jurisdiction over pending cases, describing the administration’s construction of the statute as “insupportable.” In light of Hamdan, the D.C. Circuit, which is now considering the DTA’s impact on challenges by Guantánamo detainees, must hold that habeas jurisdiction remains over pending habeas cases.

Second, Hamdan casts doubt on the merits of the Guantánamo detentions. The Court rejected the administration’s asymmetrical approach which invokes the law of war to justify unprecedented detention powers, but deliberately circumvents the very limits the law of war and domestic statutes incorporating it impose. In Hamdan, the Court invalidated the commissions because they violated the UCMJ and the 1949 Geneva Conventions. Previously, in Hamdi v. Rumsfeld, Justice O’Connor indicated that the detention of “enemy combatants,” there defined narrowly as individuals seized on the battlefield while engaged in combat against American or allied troops, could not deviate from longstanding law-of war principles; otherwise, she suggested, the basis for such detentions would “unravel.” By reaffirming the constraints imposed on the administration by the law of war, Hamdan endorses the proposition that individuals may be held as long as they are properly subject to law of war and their detention is pursuant to a lawful process.

Third, the Court’s analysis of the uniformity requirement under Article 36(b) of the UCMJ undermines the administration’s position on Guantánamo detentions. In discussing how the commissions deviated fundamentally from courts-martial, the Court focused on their procedural shortcomings, particularly the reliance on hearsay (including information obtained through coercion) and denial of a defendant’s fundamental right to be present. Yet, Guantánamo detainees (including Hamdan himself) are all being held indefinitely based upon a determination by a Combatant Status Review Tribunal (“CSRT”) that lacks those very protections. Further, the detainees have not even been afforded the various safeguards provided to military commission defendants under the rules Hamdan invalidated. Among other things, the CSRT denied detainees the assistance of counsel and the presumption of innocence.

Hamdan, in short, would be meaningless if individuals can be held indefinitely (indeed, potentially for life) without a meaningful opportunity to test the factual and legal basis for their detention. The Supreme Court has long held that the Constitution permits indefinite detention only in narrow circumstances and based upon rigorous procedural safeguards — precisely the opposite of the CSRT’s sweeping definition of “enemy combatant” and woefully inadequate fact-finding process. And, the Supreme Court already ruled two years ago in Rasul v. Bush that detainees are entitled to their fair day in court. It is only persistent government stonewalling that has prevented them from having that opportunity.

Finally, and perhaps most significantly, the Court found that Common Article 3 applies to the conflict with al Qaeda. In addition to imposing constraints on the use of military commissions, Common Article 3 prohibits “[o]utrages upon personal dignity, in particular, humiliating and degrading treatment,” which the United Nations and others have documented at Guantánamo. Even suspected terrorists are necessarily entitled to certain fundamental safeguards and federal officials (including the CIA) can be prosecuted for war crimes under 18 U.S.C. § 2441 for grave breaches of the Conventions. Thus, no longer can the administration claim, as it did in the now infamous “torture memos,” that U.S. law permits treating prisoners in derogation of Common Article 3.

By striking down the President’s unprecedented system for trying terrorist suspects, the Supreme Court exposed the military commissions for what they are: the appearance, but not the reality, of a lawful process. Just as the executive cannot disregard the nation’s Constitution and laws in trying alleged terrorists, it cannot cast aside those legal protections by detaining them indefinitely with even fewer safeguards to prove their innocence.

Jonathan Hafetz, an attorney at the Brennan Center for Justice at NYU School of Law, co-authored amicus
briefs in Hamdan v. Rumsfeld and the Guantánamo detainee litigation.
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