Initial Thoughts on Hamdan

by Roger Alford

Having now digested the Hamdan decision further, I wanted to offer a few initial thoughts about its significance. These are just initial impressions, so I am open to correction (and please tell me where you think I need correction). My focus is slightly different than others, and will address how the Bush Administration and Congress must respond to the Court’s decision.

First and foremost, Justice Kennedy’s decision (joined by Justice Souter and Breyer as to Parts I and II) is the critical opinion for the Administration. Any attempt to satisfy the Supreme Court’s concerns in Hamdan must do no more than satisfy Justice Kennedy, because any future case involving military commissions will include Chief Justice Roberts. If the Congress and the Administration can satisfy Justice Kennedy, then it will satisfy any future Supreme Court review by a conservative majority that will include Chief Justice Roberts (Roberts’ views are fairly obvious from his D.C. Circuit opinion).

Second, at bottom this case is about Youngstown. But this case is a weak Youngstown prong-three case in which “the President takes measures incompatible with the expressed or implied will of Congress.” From an academic perspective, Hamdan will provide useful opportunities to address the outer limits of express or implied prohibitions. Academics will spend significant time and effort outlining whether the statutes in question are a genuine instance of a Youngstown prong-three case of express or implied incompatibility or a Youngstown prong-one case of express or implied authorization. That in turn will require a parsing of a statute that at bottom only requires the Executive to take action where “practicable” and another that imposes jurisdictional limits that incorporate an international law obligation to utilize a “regularly constituted court.” So in essence the case rests on whether military commissions satisfy certain statutory “practicable” uniformity and conformity requirements and whether the military commissions are “regularly constituted.”

That will be the key academic debate about Hamdan. But from a practical perspective, Hamdan should not be a particularly significant hurdle for the continued use of military commissions. Certainly Congress and the Administration share a common interest in establishing acceptable and effective procedures for trying and convicting alleged terrorists. The Administration should be able to work closely with Congress to satisfy the Supreme Court’s concerns. From my reading of the core requirements of Hamdan (i.e., the requirements that Justice Kennedy shares), Congress could do so in one of two ways. First, it could modify the requirements of Sections 821 and 836 of the UCMJ. If it takes this approach, it must modify Section 836’s practicable conformity with military courts requirement and its practicable uniformity with courts-martial procedures. It also must make some modification to the jurisdiction of the military commissions under Section 821, either by clarifying and defining the laws of war, or by otherwise broadening the jurisdiction of the military commissions to include other offenses, such as terrorism. (The Administration without the assistance of Congress also could bring additional counts against Hamdan or future defendants that more closely fall within the laws of war, such as “illegal belligerency” suggested by Geoffrey Corn.)

Alternatively, Congress could modify the military commissions by making some structural changes that satisfy the Court’s concerns. This does not seem to be overly complicated. There may be other structural problems I am missing on a first read, but at a minimum this would require Congress to modify the structure so that the commissions make use of military judges rather than military lawyers. Second, modify and limit the Executive branch’s role in the military commissions by modifying the supervisory authority of the Appointing Authority. Third, the composition must use five-member commissions rather than three-member commissions. Fourth, address evidentiary concerns by utilizing evidentiary procedures that are more closely in uniformity with the Military Rules of Evidence. These structural changes would mollify Justice Kennedy’s concerns for the “fairness of the proceedings and the independence of the court.”

Of course, there is more to Hamdan than this. But in terms of how Congress and the Administration should respond to the decision, that is my initial impression of what must be done. I for one have little doubt that Congress will make the necessary changes to allow for the continued use of military commissions against the likes of Hamdan.

6 Responses

  1. Roger,

    Although I noted in a prior comment that the Court seemed to endorse “illegal belligerency” as an offense subject to trial by military commission, I question whether such an offense is a violation of international law when committed during the course of a non-international armed conflict. The lack of privilege may very will result in domestic criminal liability for participating in the conflict, but I don’t believe this means it is a violation of the law of war resulting in international criminal liability. I suspect this will be a significant issue in any future effort to try the detainees (and has already been the subject of defense challenges in the current cases).

    Also, IF the government can allege a valid charge in violation of the law of war, use of a General Court-Martial is a currently valid method to try detainees withh no additional congressional action. Article 18 provides the requisite jurisdiction, and the procedures would comply with the mandate of the Court. It is therefore not surprising that many critics of the commission have argued from the outset of this process that the administration should have brought these individuals to trial before a Court-Martial.

  2. Geoffrey,

    There is no lawful or unlawful belligerency in non-international armed conflicts. It is upon the state to decide whether it wishes to (or whether it can) punish those who take up arms against it. That is not violation of the law of war by itself though, but a matter for the state’s own internal law. War crimes in non-international armed conflicts are a different matter – see e.g. Article 8(2)(c)-(f) of the Rome Statute of the ICC.

  3. Marko,

    No dispute here. Unfortunately, that is not the position taken by the prosecutors for the military commission. They have alleged numerous offenses (such as murder) “while acting as an unlawful belligrent.” It seems pretty clear they could not assert that the conflict with al Qaeda was an international armed conflict (I read your response to my earlier comment below, and again, I don’t disagree with your analysis of al Qaeda conduct embedded in broader armed conflicts. But as you know, the United States has treated the conflict with al Qaeda as a distinct armed conflict). Thus, by implication they must be asserting that engaging in unlawful belligerency during the course of a non-international armed conflict is a law of war violation resulting in individual criminal responsibility.

    I believe that if these commissions are “transformed” into some other forum, this issue will be central to defense challenges.

  4. Geoffrey,

    I get your point. Still, there is simply no way to fit the concept of an unlawful belligerent into that of a non-international armed conflict. It’s like mixing oil and water. The very point of lawful belligerency in international armed conflicts is they you (i.e. a soldier) follow the rules, wear the uniform, carry your arms openly, etc, and then, if you are captured, you get rewarded, by getting the privilege of belligerency and POW status. There can by definition be no POW status in non-international armed conflicts – you have protections of Common Article 3 and Additional Protocol II (if applicable), but not the privilege of belligerency.

    So, again, as far as I understand, the prosecutors basically wish to charge Hamdan with being a member of Al Qaeda. That’s really it. He didn’t kill anyone, or participate in any specific crime, but still, I have absolutely no problem with charging people for membership in terrorist organizations (if that crime is on the books in the US, that is). But that crime is not a crime against the law of war, and the fact that the US has decided to use military means to deal with these people (again, fine by me) is by itself not enough to trigger the application of IHL.

    And so after Justice Stevens’s opinion it seems that the position of the US Supreme Court is that (i) there is an armed conflict with Al Qaeda AS SUCH (i.e. not just in Iraw and Afghanistan) and (ii) that armed conflict is not international in character. I must confess that this does sound absurd to me.

  5. It is not clear that Justice Stevens took the view that there was/is an armed conflict with Al Qaeda which is/was distinct from that with the Taleban. At p. 65 of his opinion he points out that the Court of Appeals agreed with the Executive that (i) the armed conflict with Al Qaeda was distinct and that (ii) the GCS do not apply to that distinct conflict. He expressly disagreed with the latter point and said nothing about the former – though his silence could be taken as approval given his express disapproval of the second point.

    I agree with Marko that is odd to think that there is an armed conflict with Al Qaeda as such. It seems to me that to the extent that people were in picked up in Afghanistan that occured in a conflict between the US (and its allies) on the one hand and the Taleban and Al-Qaeda on the other. Since that armed conflict was between the forces of (at least) two States then it was an international armed conflict. In that conflict, Al-Qaeda was fighting alongside and with the forces of what was the govt of Afghanistan (i.e the Taleban). The fact that a non-State entity was involved alongside the Taleban does not change the character of the conflict. In the armed conflict in Afghanistan, Al Qaeda were a militia group which ought to be regarded as group belonging to a party to the conflict within the meaning of Art. 4(A)(2) of GCIII. Since the armed conflict in Afghanistan met the requirements of Art. 2 of the GCs, it was international and the full GCs applied.

  6. On page 72 of his opinion, Stevens states “absent express statutory provision to the contrary, information used to convict a person of a crime must be disclosed to him.” First, although this does not appear to be a novel concept, is it? (I am not a criminal defense expert). Second, does this statement change any common law practices by the Executive as it relates to the prosecution of crimes related to the War on Terror? I focus on the War on Terror because of the “national security” aspects of that campaign and the “Classified” stamp that lurks in the wings. My first thought was the “state secrets privilege,” but I think such a privilege is used in the civil context, and not the criminal, am I right? If not, does the common law “state secrets privilege,” if used in a criminal context, now fail?

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