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What Hamdan v. Rumsfeld means
Enjoy the characterizations that follow the U.S. Supreme Court Hamdan v. Rumsfeld decision but don't get caught up in the feeding frenzy. Salim Ahmed Hamdan, 36, a Yemeni body guard and driver for Osama bin Laden, faces a single count of conspiring against US citizens from 1996 to November 2001 and has been a prisoner at Guantanamo detention facility for about four years.
The court decision is not a victory for Bush haters, Bush supporters, terrorists, international law, or anyone else. It is simply a step forward to determine how best to deal with the square peg of detainees who do not fit in any of the round holes of the law. Last week, after a tour of Guantanamo, retired Army Gen. Barry McCaffrey, said, according to Knight-Ridder, that U.S. political leaders need to fix the "legal schizophrenia" created by keeping captives at the remote base in southeast Cuba." The article continued, quoting an interview on NPR, "We are in a political and legal mess that is beyond belief, trying to sort out what do we do with these people. . . . We've been of two minds. Are they criminals who lack charges and due process? Are they enemy combatants who are due to be treated like prisoners of war? Or are they a third, inadequately defined category of people that Congress and the courts need to act on to tell us how we deal with international terrorists, nonstate actors?"
Here is a lay interpretation of what the Court said:
- To the Congress: Don't try to cut judicial review out of the process entirely.
- To the Executive: Don't try to cut judicial review out of the process entirely.
- To Congress and the Executive: Although the current commissions are not sufficient, the President and/or Congress may craft new commissions to try the detainees. The Court left unresolved whether new commissions would try the same types of charges, must follow the same procedures, or guarantee the accused the same rights that currently apply in regular military courts-martial system. But, in any case, those are subject to judicial review.
- To the Judiciary: The Court did not agree what form acceptable commissions might take, but agrees the Executive may set up military commissions but does not decide when, how, the processes to be followed, or what might limit the limits already set by Congress.
- To lower courts: The DC Circuit Court will continue to wrestle with interpreting the Detainee Treatment Act that limits access to habeas corpus.
- To everyone: Since September 10, 2001, we are at war.
- To the vocal critics of the Guantanamo detention facility: Justice Stevens says: "It bears emphasizing that Hamdan does not challenge, and we do not today address, the government's power to detain him for the duration of active hostilities in order to prevent...great harm and even death to innocent civilians."
We laugh at the dramatic interpretations by pundits who argue the decision is for or against the Bush administration. It is not a judgment of who won or lost politically, but about the application of the rule of law by all branches of our government -- Executive, Legislative and Judicial. Not only is that what distinguishes our society from that of the Taliban, the Baathists, al Qaeda, and other terrorists, but it is the very process we are fighting the war to preserve.
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