"The Nation's Second-Highest Court" Upholds Military Commissions

By MICHAEL C. DORF
Wednesday, Jul. 20, 2005

In what will surely be remembered as one of her most important opinions, Justice Sandra Day O'Connor rejected the Bush Administration's sweeping assertion that it could confine persons designated "unlawful combatants"--including U.S. citizens--without any judicial review, merely on the President's say-so.

"A state of war is not a blank check for the President," O'Connor opined just over a year ago, in Hamdi v. Rumsfeld.

Last week, in Hamdan v. Rumsfeld, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit--sometimes called "the nation's second-highest court"--rejected a challenge to the Bush Administration's plans to try suspected Al Qaeda terrorists before military commissions.

If the D.C. Circuit did not exactly give the President a blank check, it certainly extended him a very large line of credit.

As I explain below, at least some of the Hamdan panel's rulings on the many issues it decided are technically defensible. But taken together, they reveal a disturbing feature of military commissions: their use can only be justified if one assumes one of the very facts they are designed to determine--namely, that the person charged is in fact an "unlawful combatant."

Background: The Supreme Court's 2004 Rulings in the War on Terror

In 2004, the Supreme Court issued a pair of rulings rejecting the Bush Administration's claim of sweeping power to detain persons apprehended in Afghanistan and elsewhere in the "war on terror."

Hamdi involved a U.S. citizen who was taken into custody in Afghanistan and eventually moved to a Virginia Naval brig when the military authorities learned of his citizenship. He challenged his detention in a habeas corpus petition.

The government responded by producing a declaration of a Defense Department special adviser asserting, without supporting evidence, that Hamdi had been captured fighting in a unit affiliated with the Taliban. Treating this response as inadequate, the Court ruled that Hamdi was entitled to have his status determined by a neutral decisionmaker.

On the same day the Court handed down the Hamdi decision, it also decided Rasul v. Bush. In that case, the Justices rejected the government's argument that because the U.S. Naval Base at Guantanamo Bay is nominally under Cuban sovereignty, American courts lack jurisdiction to entertain legal claims brought by persons detained there - even though the detainees had no say in where the U.S. military chose to hold them, and even though in practice it is plain that Guantanamo is under U.S. rule.

Although the 2004 decisions were defeats for the Bush Administration, neither was a ringing victory for civil liberties. The Court did not say that Hamdi was entitled to the full panoply of rights that are afforded criminal defendants in civilian courts. Only Justices Scalia and Stevens were willing to go that far.

By contrast, the lead opinion by Justice O'Connor considered the question of what process was due Hamdi under a balancing test, concluding that some of the ordinary elements of a criminal trial--such as the exclusion of most hearsay evidence and the presumption of innocence--need not be granted during a hearing to determine whether a given detainee is an unlawful combatant.

Likewise, the Rasul decision permits federal courts to inquire into the lawfulness of detention at Guantanamo Bay, but says nothing about the substantive legal test the government must meet to hold someone there.

How to fill in those blanks was the question at issue in the Hamdan case.

The Stakes in Hamdan

Hamdan was no ordinary appellate case, as indicated by the volume of friend-of-the-court (amicus curiae) briefs filed. In most Supreme Court cases, a handful of amicus briefs are filed. Amicus briefs are rarely filed in appeals court cases. Yet seventeen separate amicus briefs were submitted on Salim Ahmed Hamdan's behalf. (Two were filed on the government's side.)

Were all of these friends of the court also friends of Hamdan? Hardly. Hamdan stands accused of having been Osama bin Laden's personal driver and bodyguard. The amici curiae did not contend that he ought to go free. Rather, they argued that Hamdan ought to be given an opportunity to contest these charges in a fair forum. And the military commission before which he will be tried, they and Hamdan's lawyers argued, is not a fair forum.

Hamdan did not contest the authority of the government to try him before a military, as opposed to a civilian, tribunal. But for a number of reasons, he argued, the appropriate military tribunal is a court-martial operating under the Uniform Code of Military Justice that applies when members of the U.S. Armed Forces face like charges. The D.C. Circuit rejected this core contention.

Did Congress Authorize Military Commissions?

In a 2002 article in the Yale Law Journal, Georgetown Professor Neal Katyal and Harvard Professor Laurence Tribe argued that Congress has not authorized the use of military commissions other than courts martial for the trial of persons such as Hamdan. They concluded that because the Constitution commits to Congress, rather than the President, the power to create adjudicatory tribunals, such commissions therefore have no lawful jurisdiction.

Katyal, who also served as Hamdan's chief counsel before the D.C. Circuit, pressed the Congressional authorization claim on his client's behalf. After expressing doubts about Hamdan's standing to raise the issue, the D.C. Circuit made short work of the claim. Citing the Congressional authorization of the use of force in response to the attacks of September 11, 2001, and two federal statutes, the court concluded that Congress had in fact authorized military commissions.

That conclusion is not obviously wrong, but it does not really come to grips with the heart of the Katyal/Tribe position.

None of the provisions the D.C. Circuit cited expressly authorizes military commissions. To begin, the use-of-force authorization says nothing about such commissions. And while one statute says that conferring jurisdiction on courts martial does not deprive other military tribunals of their jurisdiction, the statute does not itself create jurisdiction for any such tribunals. Finally, the other statute prescribes procedures for military commissions when and if they exist, but that too is not the same thing as actually conferring jurisdiction on such military commissions.

Katyal and Tribe's main point is that the Constitution sensibly commits to Congress, the most representative branch of the federal government, those crucial wartime decisions that need not be made on a moment's notice. Whether, and the extent to which, the peacetime protections for civil liberties should be sacrificed in the interest of national security is just such a crucial decision, and nothing in the materials the D.C. Circuit cited comes close to a determination by Congress to authorize military commissions in the current crisis. (The two statutes described above, notably, have not been materially altered for decades - let alone at any time after September 11.)

Does the Geneva Convention Entitle Hamdan to a Court-Martial?

Hamdan also raised claims under the 1949 Geneva Convention. That Convention, to which the U.S. and Afghanistan are signatories, makes clear that persons entitled to its benefits can only be tried for war crimes by the same tribunals that the detaining power uses to try offenses of its own combatants. Accordingly, Hamdan contended that he was entitled to be tried by court-martial - as a U.S. soldier, sailor or marine accused of an offense would have been.

The D.C. Circuit rejected this contention for a number of reasons, each of which is individually sufficient to deny Hamdan relief.

Can Civilian Courts Enforce the Geneva Convention?

To begin, the D.C. Circuit ruled that the 1949 Geneva Convention does not confer on individuals any rights enforceable in the civilian courts of the United States.

Article VI of the Constitution makes treaties "the supreme Law of the Land." The Senate ratified the 1949 Geneva Convention, so why isn't that enough to make its provisions binding rules of law in the same way that statutes are?

Despite the seemingly plain import of Article VI, U.S. courts have long held that treaties are presumed not to be "self-executing." That is, when the U.S. ratifies a treaty, it takes upon itself the burdens specified in the treaty as a matter of international law, but absent express language or other indications, implementing legislation is required to make the treaty enforceable in U.S. courts. The Hamdan court invoked this presumption to hold that the 1949 Geneva Convention is not self-executing.

Why did Hamdan's lawyers think otherwise? Principally because the 1949 Geneva Convention creates rights that are most valuable to individual persons, rather than to sovereign nations. Thus, they contended, the Convention does speak to judicial enforcement.

But the court rejected this line of reasoning. The 1929 Geneva Convention also confers individual rights but it was held to be non-self-executing by the Supreme Court in the 1950 case of Johnson v. Eisentrager. The Supreme Court ruled in last year's Rasul case that one portion of the Eisentrager holding had been overturned by subsequent statutory enactments. Still, the D.C. Circuit held that Eisentrager's treatment of the 1929 Convention remains good law. Thus, it serves as a precedent for ruling that the similarly structured 1949 Convention is non-self-executing, as well.

Would Hamdan Be Entitled to a Court Martial Under the Geneva Convention?

Moreover, even if the Geneva Convention were judicially enforceable, the D.C. Circuit said, Hamdan would not benefit from it for a variety of related (and fairly technical) reasons. The gist of the court's analysis can be summarized in two related propositions.

First, as a member of Al Qaeda, a non-state actor that does not abide by the rules of war, Hamdan is not entitled to be treated as a prisoner of war or otherwise to benefit from the Convention.

Second, to the extent that Hamdan has complaints about the procedures to be deployed by the Commission, he can raise these in front of the Commission itself.

As I explained in an earlier column, the distinction between lawful combatants who abide by the rules of war and unlawful combatants who do not, turns on whether the combatants themselves distinguish between enemy combatants and civilians. It also turns on whether they act in such a way that permits the enemy to distinguish them from civilians (by wearing distinctive uniforms, for example).

Affording greater rights to lawful than to unlawful combatants is a legitimate means of inducing compliance with the laws of war; departure from the laws of war can be penalized by unlawful combatant status.

Nonetheless, where the right at issue is the right to a fair and impartial tribunal to determine the charged combatant's status itself, the right cannot be withheld without assuming the very facts the tribunal is charged with determining.

Hamdan did have a hearing before a Combatant Status Review Tribunal which determined that he was either a member of, or affiliated with, Al Qaeda. Yet that Tribunal (established in the wake of the Supreme Court's Hamdi and Rasul decisions) lacked authority to determine whether as such a member or affiliate fighting in Afghanistan, Hamdan was entitled to the protections of the 1949 Geneva Convention. On this critical issue, the Tribunal accepted the President's own determination that Al Qaeda categorically does not qualify.

The D.C. Circuit, too, accepted this determination, under a principle of deference to the President as Commander in Chief. Such deference is certainly appropriate for many purposes, but it is not clear how it addresses the problem identified by the district court (which ruled for Hamdan): Article 5 of the 1949 Convention requires that when there is any doubt about captive combatants' status, they are entitled to the Convention's protection "until such time as their status has been determined by a competent tribunal," and as the district court pithily noted, "the President is not a 'tribunal.'"

The Shortsightedness of the Government's Position on Unlawful Combatants

In the end, the weaknesses in the D.C. Circuit's opinion do not necessarily mean that the court erred as to the bottom line. At least some of its arguments were plausible and the fault, if there is one, may lie principally with the Supreme Court cases--including Hamdi and Rasul--that give the government wide latitude to afford enemy prisoners fewer procedural protections than civil libertarians would deem necessary.

But to say that the Hamdan decision could be correct, is not to say that the government's treatment of Hamdan and similarly situated prisoners is fair or wise.

Important civil liberties cases rarely involve genuine heroes. Klan members and pornographers test the limits of freedom of speech, drug dealers and robbers challenge overzealous searches and seizures, and terrorists call into question our commitment to the presumption of innocence. One need not sympathize with any of these unsavory characters to recognize that the issues they raise have consequences for everyone.

In cases like Hamdan, there are two categories of other people who are placed at risk by the procedures adopted by the government. The first are legitimate enemy combatants, or even innocent bystanders, mistakenly apprehended by U.S. troops.

The second are U.S. troops themselves. As the district court observed in Hamdan: "The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts, one that can only weaken the United States' own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad."


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His 2004 book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases. His next book, No Litmus Test: Law and Politics in the Twenty-First Century, will be published by Rowman & Littlefield in early 2006.

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