Saturday, July 01, 2006


"Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers".
--Hamdan vs Rumsfeld, US Supreme Court, Footnote 23
There are limitations on the President's authority to be a law unto himself, as he pursues the prosecution of prisoners at the Guantanamo camp. His disposition toward prisoners in military custody must conform to laws that were passed by Congress. And military commissions, where they may be established under law, require as a minimum, the standards of fairness set out in the Uniform Code of Military Justice, not unlike legal rules that would govern a court martial proceeding.

Hamdan vs Rumsfeld is a real Supreme Court milestone which reminds the President that he must recognize the war powers that belong to Congress. Even in wartime, he must acknowledge who it is who makes the laws. And since the President is sworn to uphold our laws, he should pay special attention to Common Article 3 of the Geneva Conventions, which is integrated into the UCMJ statute, besides being one of America's treaty obligations. And US laws and treaties forbid inhumane treatment of persons held in military custody. Beatings, torture, psychological assaults, degrading treatment, and abuses against dignity are all strictly prohibited.

In the majority opinion, Justice Stevens mentions methods of torture such as waterboarding, by name, and violations of these legal standards are also named as war crimes. The High Court has for the first time laid down a marker, raising the specter of punishment as a reply to lawlessness.

Miami School of Law professor, Steve Vladeck, has described the ruling in the Hamdan case as "an immensely significant reassertion of checks and balances in the war on terrorism, and an unmitigated victory for those who have worried about the erosion of the separation of powers after September 11."

In the Supreme Court's 5-3 decision in favor of Salim Hamdan, Justice Stevens writes that the charge of "conspiracy" alleged against Hamdan is not appropriate for the kind of military commission that has been set up at Guantanamo.
"The Government has not charged Hamdan with an "offense...that by the law of war may be tried by military commission."
The preconditions upon which such a trial rests, requires the offense to have been committed in the convening commander's "theatre of war" . In other words, this kind of commission is developed as a battlefield measure, where the accused is brought to trial.

Remember that the case against Hamdan is "conspiracy", and he is only alleged to be a minor functionary, as bin Laden's chauffeur in Afghanistan. Moreover, the legal precedents cited by Justice Stevens suggest that "a particular offense must be plain and unambiguous".
"Hamdan is not alleged to have committed any overt act in a theatre of war or on any specified date after September 11, 2001."
"The crime of "conspiracy" has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions--the major treaties on the law of war."
It is helpful to recall Professor Vladeck's observations about the High Court's historic decision. It is indeed "an immensely significant reassertion of checks and balances"...and an unmitigated victory for those who have worried about the erosion of the separation of powers".

Justice Breyer said there would be no "blank check" for the executive, even in time of war. And Justice Stevens added, "The executive is bound to comply with the Rule of Law that prevails in this jurisdiction".

The President must obey the law.

SOURCES: Billmon, Marty Lederman


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