Guantanamo Ruling Has Some Positive Aspects

The liberal press nearly danced with glee when the Hamdan v. Rumsfeld Supreme Court decision came down a few days ago. Their widely touted assessment was that President Bush “overstepped his authority” in authorizing the formation of the military commission to try detainees at Guantanamo—despite the fact that military commissions have been used by Presidents in the past, including Washington, Lincoln, and FDR.

What Did It Say?
The essence of this latest ruling is that President Bush’s military commission for dealing with enemy combatants held at Guantanamo Bay, as constituted, is not consistent with the Uniform Code of Military Justice; therefore, if the administration wishes to pursue military commission trials, the procedures to be followed by those bodies will have to be revised in order to conform to the procedures applicable in ordinary courts-martial under the Uniform Code of Military Justice (UCMJ).

Because the Court based its ruling on language that Congress included in UCMJ Article 36(b) (i.e., rules and regulations made for both military commissions and courts-martial must be “uniform insofar as practicable”), there would be a requirement for additional legislation by Congress. The Court virtually invited that option. Justice Kennedy noted, “Because Congress has prescribed these limits, Congress can change them.” Justice Breyer noted also, “nothing prevents the President from returning to Congress to seek the authority he believes necessary.”

While the Court asserted that the executive branch must defer more to Congress in designing military commissions, the Court’s deference to Congress was transparently selective: it chose to ignore the clear intent of the Detainee Treatment Act passed by Congress last December, which Act expressly denied judicial review of any habeas corpus petition “by or on behalf of an alien detained by” the Pentagon at Guantanamo. Had they consistently upheld their deference to actions by Congress, the Court would not have heard Mr. Hamdan’s case.

The alternative to congressional action is that the administration could try the detainees in courts-martial. However, military commissions were initially established for the very reason that the rules applicable in courts-martial are inconsistent with both the practical realities of the current war on Islamic Jihad and with the fundamentally illegitimate status (under the laws and customs of war) of captured al Qaeda.

On the Bright Side
There are some positive aspects to the ruling:

-- None of the eight justices concluded that military commissions are illegitimate, or that such commissions cannot be used to try and punish individuals captured in the current war.
-- Nothing in the ruling suggests that the detention facility at Guantanamo Bay must be closed.
-- None of the justices questioned the government’s right to detain Salim Ahmed Hamdan (once Osama bin Laden’s driver) or other Guantanamo prisoners as long as hostilities continue.
-- None of the justices suggested that Mr. Hamdan or any other Guantanamo prisoner must be treated as a civilian and accorded a speedy trial in the civil courts.

Because opponents of the Bush administration’s detention policies have vigorously advanced the claims outlined above, Hamdan has actually dealt them a decisive defeat. An earlier Supreme Court ruling in 2004 affirmed the government’s right to capture al Qaeda (and operatives allied with al Qaeda) and detain them, without criminal charge or trial, until hostilities are concluded.

Bottom Line
It should also be noted that the high court did not mandate that terrorist detainees be granted the rights of either ordinary criminal defendants (who cannot be held indefinitely unless charged and convicted), nor did it reclassify enemy combatants as ordinary prisoners of war (who, among other things, cannot be interrogated).

It appears to us that the chief result of this ruling will be to delay the trials of Guantanamo detainees until Congress or the Pentagon establishes a regime of military commissions that meets the court's approval.

The Hamdan case is a grim reminder that our nation is thoroughly entangled, for now and the foreseeable future, in endless tensions over civil liberty concerns versus manifest national security threats from an enemy that is completely unfettered by limitations of the Geneva Conventions, International Law, or the norms of civilized societies.

The Bush administration now has an opportunity to define a clear policy for handling Guantanamo Bay and the whole array of legal and policy issues that surround it. The critical issue, as noted by two attorneys who served in the Justice Department under Presidents Reagan and George H.W. Bush, is whether the U.S. “will continue to treat al Qaeda and its allies as enemy combatants in a war that it means to win, ending the threat to American lives and interests around the world, or whether it will accept the threat as more or less permanent, seeking merely to ‘manage’ it as a criminal-law matter.”(David B. Rivkin Jr. and Lee A. Casey, “Hamdan: What the ruling says—and what it doesn’t say,” Wall Street Opinion Journal, July 3, 2006)

If we choose the latter, which is essentially the pathway chosen by European nations now reluctantly facing the reality of terrorism in their own backyards, we will have made the cynical choice not to use all available means to protect ourselves from future attacks, and to accept civilian casualties as inevitable. This is to entertain the foolhardy expectation that militant Islamists will eventually lay aside their hatred of the West—especially, the U.S.—and abandon their plan for global domination.

In formulating policy that will govern our future treatment of unlawful combatants, it is important to remember that these vicious combatants are not ordinary criminal defendants. Their proud and belligerent rejection of the norms of civilized society is requisite to their practice of radical Islam, and is not subject to change. Treating such men as common criminals trivializes the threat they pose and minimalizes the savagery by which they seek to further their cause of global domination.

As a nation, we should take note that, in this latest decision our highest Court has validated the legal basis of this conflict. The ball is now on Congress’s side of the net. They can revise the UCMJ to make clear that the rules applicable in military commissions need not be identical to those in courts-martial. Or, Congress can adopt the military commission rules already established. Either way, the Supreme Court would find it hard to justify rejecting rules established by Congress—since it was the “lack of legislative authority” that it found to be the key defect in the current system.

One last point: There is an election coming up. The prosecution of the war against Islam’s bloody Jihad will again be a major issue with the American people.
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