WASHINGTON – Eight Supreme Court justices on Tuesday will be asking themselves a question not normally heard during oral arguments: Should we even be hearing this case?
That issue is usually settled by the time the court entertains a dispute, but the case being argued, Hamdan v. Rumsfeld, could completely slice the U.S. judiciary out of the War on Terror.
Yemeni national Salim Ahmed Hamdan admits to having been Usama bin Laden's personal driver and bodyguard. He was captured by U.S. forces in Afghanistan more than four years ago and is being held in an isolation facility at Guantanamo Bay Naval Base. Hamdan is challenging the special military commission slated to try him on charges that he conspired with Al Qaeda to commit terrorism.
His case is one of the most highly anticipated of the 2005-2006 term because it presents the court with an opportunity to shed light on the secretive system of justice that decides the fate of War on Terror detainees. However, through an act of Congress, Hamdan's case may not get decided at all.
In the summer of 2004, the U.S. Court of Appeals for the District of Columbia Circuit disagreed with a district court's finding that President Bush did not have authority to create special military commissions for Guantanamo detainees. The three-judge panel, which included now-Chief Justice John Roberts, also rejected Hamdan's claim that he was entitled to Geneva Convention protections.
Hamdan appealed to the Supreme Court, which agreed last November to decide whether the president had the proper authority to create the special military commissions, and whether Hamdan could be granted relief under the Geneva Convention. Roberts is abstaining from the decision.
Last December, Congress passed the Detainee Treatment Act (DTA), which yanked from detainees access to relief in U.S. courts. The Bush administration interpreted the act to apply to all pending requests for habeas relief, and asked the Supreme Court to summarily dismiss all appeals from Guantanamo detainees. The Supreme Court opted to decide for itself whether it had jurisdiction over those cases and denied the administration's request, allowing Hamdan to go forward.
Not only does the DTA effectively wipe out the court's landmark 2004 decisions in Hamdi v. Rumsfeld and Rasul v. Bush stating that "enemy combatants" are entitled to due process in U.S. courts, but the act's own authors disagree over how the DTA should be applied.
At the Bush administration's urging, a preliminary version of the act explicitly stated that it applied retroactively to all pending cases. Sen. Carl Levin, D-Mich., objected and got an amendment passed that stripped out that language. The final version of the legislation stated that it "shall take effect on the date of the enactment of this act."
But the DTA still does not explicitly state whether the act should be applied retroactively. Moreover, the act's two Republican co-authors, Lindsey Graham of South Carolina and Jon Kyl of Arizona, have said they intended the legislation to render moot all pending cases, including Hamdan's. Last Wednesday, the D.C. Circuit Court in a separate terror-related case had trouble making heads or tails of what the act meant.
"The Detainee Treatment Act is a hopelessly vague statute and that's part of the problem," said Joe McMillan, a partner at Seattle-based Perkins Coie LLP and co-counsel for Hamdan. "If you're going to strip the courts of habeas jurisdiction, it requires a clear statement to do so."
Until one of the courts reaches a resolution on the DTA, the more than 200 appeals brought by Guantanamo detainees will be in limbo.
"This is an ad-hoc series of executive orders that make no sense," said Gitanjali Gutierrez, an attorney who represents several Guantanamo detainees. "To be able to pick people up all over the world and put them in some no-law zone without judicial review at the executive's orders, that is not something our laws have ever allowed."
But supporters of the act contend that allowing hundreds of people who have picked up arms against U.S. forces to flood the American court system with appeals would be terrorism of another kind.
"War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts," Justice Antonin Scalia said earlier this month, in remarks reported by Newsweek magazine. "Give me a break."
Few of the attorneys representing Guantanamo detainees do so because they believe their clients are innocent or even decent people. Rather, they say, the secretive way in which the detainees' enemy combatant status, much less guilt or innocence, is determined threatens the very integrity of the American system of justice.
Gutierrez's most famous client is Mohammed al-Qahtani, believed to be the "20th hijacker" in the Sept. 11, 2001, attacks. He was detained in August 2001 in Orlando, Fla., and deported back to Saudi Arabia. Sept. 11 lead hijacker Mohammad Atta waited in vain for him at the airport, security cameras showed. Al-Qahtani was later caught on the battlefield in Afghanistan and sent to Guantanamo Bay.
The Bush administration has agreed to treat detainees according to the Geneva Conventions, which state that nations must subject foreign nationals to the same rules used for their own citizens who are accused of war crimes. However, the conventions' "rules" do not apply to Hamdan or others because he is not defined as a prisoner of war as understood by the 1949 Geneva Conventions, the administration contends. Al Qaeda is not a signatory to the Convention; it is not a nation. More significantly, Al Qaeda does not conduct its "operations in accordance with the laws and customs of war."
The administration says its adherence to follow rules applies to conditions of imprisonment, and is purely altruistic since conventions among nations are policy agreements, not U.S. law, and are therefore not judiciable in U.S. courts.
The Supreme Court has ruled that prisoners of war and enemy combatants, including those in Guantanamo Bay, are entitled to some of the constitutional protections that cover U.S. citizens.
Traditionally, as the district court pointed out, prisoners of war are tried in the "autonomous military judicial system created by Congress" in accordance with the Uniform Code of Military Justice.
The Bush administration argues that Congress granted the president power to create special military commissions when it passed the Joint Authorization for Use of Military Force a week after the Sept. 11 attacks. This is the same defense the administration is using for its warrantless surveillance program.
For the D.C. Circuit Court, the language of the joint authorization — "all necessary and appropriate force" — was sufficiently clear. The three-judge panel also pointed out that precedent had been established in prior conflicts for the military commissions.
The administration is also arguing that Congress' authorization for President Bush's actions is beside the point. It doesn't matter how much power Congress wanted the president to have, the administration says, because the necessary power is conferred to the president by the Constitution. And if establishing a third system of justice for terrorism suspects seems extraordinary, that might be because the circumstances are extraordinary.
"What this is really about is whether this is more analogous to civilian law enforcement or conventional war, like World War II. What makes it a particularly hard case is it's not really analogous to either of those — it is really its own thing," said Michael Ramsey, a constitutional law scholar at the University of San Diego Law School who has argued for expansive executive power in wartime.
"The introduction of this idea of separate wars is a novel departure from past American practice in applying Geneva Conventions. We never did it in Vietnam, where we were engaged with regular troops and Viet Cong," McMillan countered. "We're leaving open the possibility that these systems of justice are defined, but our position is it is Congress' role to do that, not presidential fiat."
Should a majority of the justices considering Hamdan disagree, the "blank check" to prosecute the War on Terror, which retired Justice Sandra Day O'Connor famously snatched away from the president in her majority opinion on Hamdi, will be given back to him.
"The president has the inherent authority to convene military commissions to try and punish captured enemy combatants in wartime — even in the absence of any statutory authorization," the Department of Defense argued in a brief, adding that the president also had the authority to "depart from the 'principles of law and the rules of evidence' applicable in ordinary criminal trials when 'he considers' those rules not 'practicable.'"
Though opponents of the administration accuse it of wanting carte blanche in prosecuting the War on Terror, the administration insists Guantanamo defendants will be able to challenge adverse rulings — just not in U.S. courts.
"Hamdan can appeal a conviction from a military commission, but he has to go through the commission process and get an adverse result and then challenge it. He is claiming he has a right not to undergo the process at all," Ramsey said. "It doesn't seem to be a real huge imposition on him."
But critics of the commission process say it is a legal black hole, and once detainees are thrown in, it will be all but impossible to pull them out. And the repercussions won't just be felt in Guantanamo, they add.
"This is both less radical and more radical than what you've seen in a lot of countries facing terrorism," said Martin Flaherty of Fordham Law School. Flaherty has led human rights missions in countries including Northern Ireland, Turkey and Malaysia.
"The good news is, in all these countries that created emergency systems to deal with terrorists, [those who are] subjected to this separate and lesser judicial system is much narrower. What's worse about Guantanamo is, at best, it comes from only the most broad, general, panicked authorization, certainly nothing specific and concentrated. Add to that the War on Terror could go on forever, and it's troubling."