Here’s one take on the case:
Making Sense of the Hamdan Ruling
June 29, 2006 2:44 p.m.
In a lengthy opinion, the Supreme Court today ruled 5-3 that the “structures and procedures” of the current U.S. military’s current terrorism tribunal system violate both military rules and the Geneva Conventions. Scott Silliman, a former military lawyer and executive director of Duke University Law School’s Center on Law, Ethics and National Security spoke with WSJ.com’s Ashby Jones about the ruling in the case of Hamdan v. Rumsfeld.
WSJ: What does the ruling mean for the Bush administration?
Scott Silliman: I’ve been asked if this is a “stinging rebuke” to the administration, and frankly I don’t think it is. It’s a defeat, no question, but I wouldn’t cast it in that strong of language.
WSJ: Why not?
Silliman: I think that of the 450 or so detainees being held at Guantanamo, only 15 to 18 will actually go in front of a tribunal. International law dictates that in order for a country to bring a case against an enemy combatant like Mr. Hamdan it has to allege a specific violation of the “law of war.” [The Geneva Conventions are part of the “law of war.”] That is, the government has to have evidence of a specific crime, like that a specific detainee killed an innocent civilian. But for the vast majority of the detainees, the administration doesn’t have evidence of specific crimes. Just being an “enemy combatant” is not a crime under the law of war.
WSJ: So what’s likely to happen to the majority of the detainees?
Silliman: It’s unclear. For now, they’ll stay at Guantanamo. The Bush administration is coming under increased pressure to move the detainees back to their countries of origin, but the administration wants a guarantee that they’ll be detained in those countries.
WSJ: But the government claims it had specific evidence of a crime – that of conspiracy – against Mr. Hamdan. Why wasn’t that enough to bring a case against him?
Silliman: Well, several members of the court – four actually – ruled that the crime of conspiracy doesn’t exist under the “law of war,” which includes the Geneva Conventions. Justice Kennedy [who joined other parts of the majority’s opinion] didn’t join that part of the opinion because he apparently felt the court didn’t need to go that far, that it didn’t need to reach the conspiracy issue.
WSJ: Why not?
Silliman: Because the court ruled that the tribunals are governed by – and violate – the Uniform Code of Military Justice, which follows the “law of war.” The “law of war” dictates that the same procedural safeguards afforded in U.S. courts-martial also need to be afforded to enemy combatants. For instance, courts-martial allow the accused the right to be present at his trial, and have certain rules on the admissibility of evidence. The tribunals the administration had set up didn’t have these safeguards, and therefore didn’t pass muster with the court. Therefore, at least in Justice Kennedy’s mind, the court didn’t need to reach the conspiracy issue.
WSJ: Did the makeup of the 5-3 decision surprise you?
Silliman: Not at all. I thought all along that Justice Kennedy’s vote would be the key one to watch. I figured that [Souter, Stevens, Ginsburg and Breyer] would vote in a bloc, as would Alito, Thomas and Scalia. The big question in my mind was Kennedy.
WSJ: Before reaching the “merits” of the case, the court had to wrestle with a jurisdictional issue. Explain to us what was at stake there.
Silliman: A lot was at stake there. Last December Congress passed a law [the Detainee Treatment Act] that took away the federal courts’ power to hear habeus corpus motions made by Guantanamo detainees. In other words, the law stripped the detainees of their right to challenge their detentions in federal court. The issue in front of the Supreme Court was whether that law should apply to Mr. Hamdan, given that the law wasn’t passed at the time Mr. Hamdan was granted his day in federal court. The court ruled that if Congress had intended for the DTA to apply retroactively, it would have said that specifically in the law.
WSJ: But that portion of the DTA will still apply to those detainees who filed for federal court review after Dec. 30 of last year? They won’t be able to challenge their detentions in federal court?
Silliman: That’s right.
WSJ: Lots has been written in recent months about how much the Supreme Court should be looking to international law to help guide its decision-making. Does the ruling today shed any light on where the court stands on this issue?
Silliman: I don’t think so. The court looked to the Geneva Conventions because they help define “the law of war,” which is followed by the military under the Uniform Code of Military Justice, a U.S. law. It’s not like the court just on its own decided to look to the Geneva Conventions. This is more of a rare case where U.S. law and international law happen to intersect.
WSJ: So what happens now? What does this decision mean for Mr. Hamdan and others like him?
Silliman: I read the decision as the court telling the Bush administration, “Look, you deviated too far from court-martial procedures. These are what need to apply.” In other words, if you’re going to try these folks, you’ve got to afford them the procedural rights they’d get were they tried in a U.S. court martial. The president set the bar too low. Now he’s got to drive it back up.