Advantage, Rule of Law

The Supreme Court's decision yesterday in Hamdan v. Rumsfeld, holding that the Guantanamo Bay military commission trials were unlawful by design, is by any standard a blockbuster. In a solid 5-3 majority opinion written by Justice John Paul Stevens, the Court ruled that the commissions violate the Uniform Code of Military Justice and the Geneva Conventions. To the prevailing post-9/11 mantra of Inter arma silent leges ("laws fall silent in times of war"), the Court, speaking in the voice of its sole remaining military veteran, issued a clear response: Not so fast.

The decision's most immediate impact is to effectively end the nearly five-year-old commission process launched by presidential order in November 2001. A target of scathing criticism by political leaders and military lawyers from the beginning, the commissions had become such a subject of international disdain that even the President had begun distancing himself from them in public statements during his most recent travel overseas. In this respect, the Court's decision confirms as a matter of law what had long since become apparent as a matter of policy: the United States can do better than this in bringing accused terrorists to justice, and it has a clear obligation to do so.

But the case is a blockbuster as much for its reasoning as its effect. In a methodical, workmanlike, and fundamentally lawyerly way, the Court repudiated position after position the administration has taken in pursuing its law-is-no-obstacle approach to a “war on terror.” As Justice Anthony Kennedy, concurring in the Court's judgment, put it: “[A] case that may be of extraordinary importance is resolved by ordinary rules.” Among the ordinary rules the Court recognized in reaching its conclusion yesterday were several that have policy implications not only for bringing accused criminals to trial, but also for the administration's detention and interrogation operations across the board.

Take the Court's rejection as “erroneous” of the administration's long-held position that Common Article 3 of the Geneva Conventions, guaranteeing basic fair trial rights to all who are captured in the course of armed conflict, does not apply in the fight with al Qaeda. Common Article 3, which also prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment,” has been at the center of ongoing debates between the Pentagon and the White House over the content of the much-delayed revised Army Field Manual on Intelligence Interrogation. Many inside the Pentagon have urged that the manual comply with the Article 3 prohibition on humiliating treatment; the White House has repeatedly balked. While the administration has been nothing if not artful in avoiding the plain implication of decided case law, yesterday's ruling should make it harder for those who continue to resist the application of this standard to the approximately 15,000 detainees still held worldwide in connection with operations the administration insists are part of the “war on terror.”

The Court's straightforward application of this and other relevant provisions of treaty law challenge a much more basic prejudice of the administration: the notion that international treaties ratified by the United States are somehow less real and less enforceable than any other component of U.S. law. Treaties are the “supreme law of the land” under Article 6 of our own Constitution. Yet the administration has effectively resisted this idea time and again, through implausibly limited interpretations of treaty provisions, demands for excessive judicial deference to the President's own interpretation of these laws, and denials that any treaty provision be given teeth through vigorous enforcement in the federal courts.

While leaving for another day a full answer to the question of judicial enforceability of the Geneva Conventions, the Court left no doubt that the American executive was bound by its provisions. As the majority put it: “Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened … does not meet those requirements.”

Perhaps most important, the Court reestablished its unhesitating commitment to check the exercise of executive power even in times of security threat. As Justice Kennedy emphasized, with Congress having acted to regulate extensively the procedures applicable in courts martial and military commissions, the President has no authority to ignore the limits accompanying his power to implement those rules.

By denying the power of Congress to limit executive conduct -- from Justice Department legal opinions, to presidential signing statements, to secret surveillance programs -- this administration has sought to elevate itself above its coequal branches of government like none other in U.S. history. No doubt, the administration will seek ways to circumvent the full implications of the Court's decision, as it has tried to do with judicial rulings in the past. But there can no longer be any question that the principle set forth in the 1952 steel seizure case (rejecting President Truman's seizure of privately owned steel mills in the name of pursuing the Korean War) is still good law: “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”

The Court's decision yesterday did not answer every question surrounding the conduct of war crimes trials. The administration and its allies in Congress are now scrambling to come up with a legislative Plan B for finally bringing to justice -- nearly five years later -- those the United States has accused of committing war crimes.

But Congress would be wise to think twice before rushing toward the creation of yet another hastily constituted commission process. By far the fairest and most expedient course now -- saving yet another years-long round of litigation up to and including the nation's highest court -- is to try those accused of war crimes according to the well established and widely admired law Congress already passed for this purpose: the court martial system of the Uniform Code of Military Justice. Sensitive or complex questions of evidence or the use of classified information that might arise in such trials can be dealt with by trained military judges, case by case. The world will see trials that reaffirm our commitment to the rule of law and our ability to successfully prosecute those accused of the worst kind of crimes. And we can all relax in the knowledge that even extraordinary cases can be resolved with resort to ordinary law.

Deborah Pearlstein is a Visiting Scholar at the Woodrow Wilson School for Public and International Affairs at Princeton University, and Director of Law and Security Programs at Human Rights First. She clerked for Justice John Paul Stevens during the Court's 1999-2000 Term.

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