D.C. Circuit Upholds Military Commissions

D.C. Circuit Upholds Military Commissions

As I predicted back in April, a panel of the D.C. Circuit unanimously rejected constitutional and treaty-based challenges to a trial of alleged terrorists by military commission. The decision reversed a lower court’s finding that the whole military commission system is a violation of the Geneva Convention. The D.C. Circuit’s key holdings:

  • The Sept 11 Resolution for the Authorization of the Use of Force, combined with prior statutory authority, authorizes the President to try detainees in military commissions.
  • The 1949 Geneva Conventions are not judicially enforceable in federal court.
  • Even if they did apply, Hamdan (the detainee) would not qualify for protections as a prisoner of war nor would he find protection in Common Article III because he is an unlawful enemy combatant.
  • The Court also held that any judicial remedies, if they exist, must occur after the petitioner has exhausted his military remedies
  • Finally, the court holds that military commissions do not violate the Uniform Code of Military Justice.

The first two holdings are by far the most important. By tethering the military commissions to the September 11 Resolution, the D.C. Circuit avoids all the talk of presidential unilateralism by shifting responsibility to Congress. Moreover, by finding the Geneva Conventions judicially unenforceable, the Court has dispensed with all the nitty gritty battles over what those conventions require.

I think the first statutory authorization point is very strong and should withstand appeal. But the question of the judicial enforceability of the Geneva Convention is quite complicated. The Court here relied heavily on a previous Supreme Court’s reading of an earlier version of the conventions. This holding may prove vulnerable on appeal, although I think it will be ultimately upheld.

Suppose the D.C. Circuit is upheld on appeal? Can we live with this result? Well, I can. We are not talking about torture here folks. Rather, the question is what kind of procedures will be granted to detainees charged with committing terrorism or war crimes. The Administration would have wide, but not unlimited, discretion to carry out military commission trials. This seems like a sensible result to me. At least there is an effort to punish the detainees rather than just hold (and maybe abuse) them.

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Does Marty Lederman’s comments complicate this any?