Politics & Policy

The Hamdan Commission Will Go Forward

Military and civilian court rulings pave the way for the first war crimes trial.

The long-awaited, serially delayed military commission trial of Salim Hamdan, once the personal chauffeur and bodyguard of Osama bin Laden, will finally begin at the Guantanamo Bay naval base. 

A pair of rulings Thursday, one by a military court at Gitmo and the other by a civilian federal court in Washington, paved the way for the commencement of proceedings, perhaps as early as Monday.  The decisions by Captain Keith J. Allred, and District Judge James Robertson turned aside various constitutional challenges, including Hamdan’s most significant claim:  that the trial would run afoul of the Supreme Court’s June 12 ruling in Boumediene v. Bush, which invalidated key combatant-detention provisions of the 2006 Military Commissions Act.  The same MCA authorizes commission trials. 

The ruling by Judge Robertson, announced at the conclusion of a spirited two-hour hearing Thursday, was surely a relief for the government.  It was Judge Robertson who began the long Hamdan odyssey by ruling, in 2004, that the commission ordered by President Bush could not proceed because it violated what the court took to be the alleged terrorist’s prisoner-of-war rights under the Geneva Conventions. 

That ruling was later rejected by a three-judge panel of the D.C. Circuit Court of Appeals that included then-Circuit Judge John Roberts.  When he was confirmed soon after as U.S. Chief Justice, Roberts recused himself from Hamdan’s appeal to the Supreme Court.  Thus in Hamdan v. Rumsfeld (2006), the sharply divided high court ruled, 5-3, that the president’s commission system violated federal law.  Though it did not fully adopt Judge Robertson’s reasoning, the majority found that enemy combatants were protected by the Geneva Conventions’ “Common Article 3,” at least to the extent it required any trials to be conducted by “a regularly constituted court.”  (My analysis of the flaws in this ruling can be found here.)


The Hamdan majority strongly suggested that the military commissions could become regularly constituted courts if they were approved by Congress rather than unilaterally imposed by the commander-in-chief.  Congress promptly obliged, enacting the MCA at the end of 2006.  Reaffirming legislation from the preceding year (the Detainee Treatment Act), lawmakers provided that both military commission trials (for alleged war criminals) and combatant status review tribunals (for all detainees) should proceed.  After military proceedings, including appeals, were concluded, Congress further reaffirmed that combatants would have the right to appeal convictions and detention decisions to the D.C. Circuit.


This unprecedented right of wartime access for enemy captives to one of the nation’s highest and most prestigious civilian courts was not good enough for the detainees and their legion of volunteer lawyers.  They claimed the alleged combatants, though aliens held outside the United States, had rights under the U.S. Constitution.  Last month in Boumediene, the same five justices who’d comprised the Hamdan majority agreed, at least to the extent that the Constitution guarantees habeas corpus — the right to have the lawfulness of one’s detention reviewed by a civilian court.  Though the MCA does in fact provide that guarantee, Justice Anthony Kennedy’s opinion contended that review in the D.C. Circuit was unduly narrow and that enemy combatants, like American criminal defendants, should have resort to the lower federal courts for wide-ranging attacks.


This heartened Hamdan and the handful of other detainees, including 9/11 mastermind Khalid Sheikh Mohammed, who face not just detention but military commission trials.  Hamdan’s counsel immediately sought to capitalize on Boumediene by filing a motion in the military court as well as a habeas corpus petition before Judge Robertson. 


Though potentially lengthy, wartime detention automatically terminates when hostilities conclude — and may end much sooner due to diplomatic accommodations and political pressures, which is why nearly three-quarters of the Gitmo detainees have already been released.  By contrast, war crimes commission trials may result in the imposition of severe sentences, including death.  Consequently, commissions call for greater due process protections than detention tribunals.  In Boumediene, the majority suggested that detentions were being premised on combatant-status hearings that were rife with due process flaws.  Though the Supreme Court was only ruling on detention, not trial, Hamdan’s counsel naturally urged that the majority’s rationale also compelled the invalidation of the commissions due to procedural deficiencies.


Both Judge Allred and Judge Robertson have rejected this argument, at least for now. 


As they have from the outset, detainee counsel complain that the military commission procedures portend verdicts based on evidence that is either unreliable (such as statements coerced by harsh interrogation tactics) or unavailable to the detainee (such as top-secret national-defense information).  Judge Robertson was far from insensitive to this possibility, but he properly rejected the claim as premature. 


Federal courts are supposed to indulge a presumption of constitutionality for acts of Congress, which is, after all, a peer branch of government.  This means the MCA should be upheld unless there is no plausible way to avoid finding it unconstitutional.  That the commission trials authorized by the MCA could conceivably result in verdicts tainted by improper evidence or procedures does not mean they necessarily will be.  The only way to know for sure is to permit the trials to happen and evaluate them post hoc on a concrete factual record. 


Hamdan’s trial, for example, could end up involving no interrogation or classified evidence at all; or it could involve some classified evidence that the government discloses to his military lawyer; or it could, like thousands of civilian trials, involve a small portion of erroneously admitted evidence that, when the whole record is considered, makes no difference because the proof of guilt is otherwise overwhelming.  There are innumerable possibilities. 


That’s why, in stark contrast to the Boumediene majority, proper courts don’t jump the gun.  Before taking the drastic step of holding that a law passed by the people’s representatives is unconstitutional, they await the mature development of facts and act only on a flesh-and-blood violation, not an imaginary one.


In the Gitmo bar, thanks to its supporters in the academy and the media, we hear incessantly about the specter of star chambers and torture evidence.  Almost never mentioned are the elaborate protections adopted by the military for commission trials, such as:


  • the presumption of innocence;


  • the imposition of the burden of proof on the prosecution;


  • the right to counsel—both to a military lawyer provided at the expense of the American taxpayer and to a private attorney if the combatant chooses to retain one;


  •  the right to be presented with the charges in advance of trial;


  • access to evidence the prosecution intends to introduce and to any exculpatory evidence known to the prosecution;


  • access to interpreters as necessary to assist in understanding the proceedings;


  • the right to a trial presumptively open to the public (except for portions sealed for national defense or witness security purposes);


  • the free choice to testify or decline to do so;


  • the right against any negative inference from a refusal to testify;


  • access to reasonably available evidence and witnesses;


  • access to investigative resources as “necessary for a full and fair trial”; and


  • the right to present evidence and to cross-examine witnesses.


Those are just some of the trial rights.  There are, furthermore, elaborate sentencing procedures and a multi-tiered military appellate process at which a convicted combatant could get a guilty verdict or sentence reversed without ever having to appeal in the civilian courts.  As Powerline’s Scott Johnson points out, the protections enemy combatants in the war on terror will receive far surpass the paltry safeguards given the Nazis at Nuremburg—notwithstanding that Nuremburg, an international tribunal that afforded no right to American civilian court review, is celebrated by the Left as a triumph of the “rule of law.”


So, finally, Hamdan will have a trial.  And so will we.  We will get to see what a real commission looks like.  Here’s betting it more resembles a model of due process than the monster of defense lawyer fantasy.


– National Review’s Andrew C. McCarthy chairs FDD’s Center for Law & Counterterrorism and is the author of Willful Blindness: A Memoir of the Jihad.


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