I’m still working my way through the Hamdan decision, but let me weigh in here with a couple of initial thoughts:*
(1) As Professors Peter Spiro and Paul Stephan both suggest below, the Court did not hold that the Geneva Conventions are judicially enforceable by a private lawsuit absent separate Congressional action (Marty Lederman thinks differently, see his discussion here). The key move here, I think, is that the Court read Congress’ enactment of the Uniform Code of Military Justice as requiring any military commissions to conform to the laws of war. The Court then found that the laws of war, which include the Geneva Conventions, prohibit the commissions as currently constituted.
(2) Even if the treaties were found to be judicially enforceable, however, there is no doubt that Congress could reverse the outcome in Hamdan by legislation. Congress has the unquestioned power to eliminate the domestic effect of treaties by subsequent legislation (the “last in time” rule). The Court did not rule in favor of the petitioners on any of their constitutional claims alleging that the President has no legal power to constitute commissions or that such commissions violate the Due Process Clause.
(3) So if Congress is unhappy with this decision, they can reverse it. Peter’s guess is that they won’t want to. I’m not sure about that, although that is a purely political question. Still, President Bush has already said he is going to ask Congress for legislation along these lines and a number of Senators, including Majority Leader Bill Frist and Senator Lindsey Graham, have said they will work to pass such legislation.
*That was fast. So Senator Arlen Specter already has a bill out that would affect the holdings of Hamdan and Rasul v. Bush, the decision last year extending federal habeas jurisdiction to Guantanamo. I haven’t analyzed it, but here it is (HT: Bench Memos).
WASHINGTON, DC – Today Chairman Arlen Specter (R-Pa.) introduced the Unprivileged Combatant Act of 2006. The bill balances the need for national security with the need to afford detainees with sufficient due process. A section by section summary of the bill follows. A copy of the bill, as introduced, is attached.
Section 301: Findings: This title is in direct response to the United States Supreme Court’s ruling in Rasul v. Bush.
Section 302: Definition Section: Defines primary terms in the bill such as field tribunal, classification tribunal, military commission, and unprivileged combatant.
Section 303: Authorizing Military Commissions: Authorizes the president to establish military commissions for the trial of individuals for offenses provided in this title.
Section 304: Jurisdiction Over Unprivileged Combatants: This title establishes exclusive jurisdiction to hear any matter involving an unprivileged combatant who has been detained by the Department of Defense at Guantanamo Bay, Cuba. These detainees may be tried via laws of war or pursuant to the Department of Defense’s Military Commission Instruction Number Two.
Section 305: Appellate Jurisdiction: Under this title the U.S. Courts of Military Appeals shall have exclusive jurisdiction over appeals from all final decisions of a classification tribunal board or military commission. These decisions are then subject to review by the Supreme Court by writ of certiorari.
Section 306: Military Commission: Establishes the military commissions; consisting of three military officers, at least one of whom is a Judge Advocate General. These Commissions shall decide the guilt or innocence of detainees charged under section 304 of this Act.
Section 307: Persons in Custody: Requires the Secretary of Defense to develop a list of all persons who are being detained at Guantanamo Bay, Cuba, and whom the government wishes to continue to detain as an unprivileged combatant. The Act requires that the original list be developed nor more than 60 days after enactment and requires that subsequent lists be updated at least once every 60 days and be submitted to the appropriate House and Senate committees.
Section 308: Field Tribunals: Requires the Department of Defense to hold a field tribunal (FT) within 30 days of U.S. forces detaining a suspected unprivileged combatant. The FT will determine if the detainee is an unprivileged combatant and if the detainee is entitled to the rights afforded under the Geneva Convention.
Section 309: Classification Tribunals: This section establishes a Classification Tribunal (CT). The CT shall be composed of three military officers, one of whom shall be an attorney. Following a CT hearing a designee shall be released and repatriated to the appropriate country unless a CT finds by a preponderance of the evidence that the detainee is a threat to the national security interest of the United States; or there are reasonable grounds to believe that if released the person would take up arms against the United States. Decisions of the CT shall be reviewed every six months. Detainees may be released only when the CT or the Administrative Board determines the detainee is no longer a threat to national security. This section also expressly states that a detainee who is also a United States citizen may not be held or tried under this act.
Section 310: Classification Tribunal Procedures: Establishes that the procedures for CTs are the same as those of Combatant Status Review Tribunals with the key exception that detainees shall be represented by counsel and are permitted to view unclassified evidence relating to their case.
Section 311: Continuance of Classification Tribunals: Classification Tribunals may be continued in order for the government to fully interrogate the detainee. Upon a motion from the Government, the Classification Tribunal Board may grant a continuance for up to a 6-month period, if the Board determines that the individual being detained is a high level individual in the planning or financing of terrorist activities, or possesses information vital to the safety of the United States or its citizens. The government may obtain more than one continuance if it demonstrates that such continuances are necessary for information gathering purposes as it relates to national security. Applications for continuances shall be made ex parte and before a detainee is given an attorney. Accordingly, a detainee is only given an attorney once the tribunal is informed that the interrogation efforts have been exhausted.
Section 312 & 313: Criminal Prosecution Procedures: Provides that Military Commission procedures will be the same as the current procedures afforded by detainees under the current system.
Section 314: Communication with Persons in Custody: Limits communications by any detainee indicted or convicted under this Act to the individual’s interpreter, assigned counsel, prison personnel, and any other individual(s) approved by the Secretary of Defense.
Section 315: Commission Counsel: Establishes the criteria for persons to be admitted to practice before a commission. The requirements are they must be a U.S. Citizen; have been admitted to practice law in a State, district, territory or possession of the United States or before Federal Court; have not been disciplined by any court, bar or other competent governmental authority for misconduct; maintains a minimum of “secret” clearance; and signs a written agreement to comply with all applicable regulations and instructions for counsel during the course of proceedings. This section also expedites the security clearance process for individuals seeking to practice before a commission.
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Julian: I did <i>not</i> write that “the Geneva Conventions are judicially enforceable by a private lawsuit absent separate Congressional action.”
In fact, the question about whether there is an independent cause of action to enforce CA3 is quite beside the point. It certainly is judicially enforceable in a war crimes prosecution, right? And it might be enforceable on habeas, per Rasul (as it was in Hamdan itself). But more importantly: <b>The Administration now has a constitutional obligation to conform its conduct to CA3, judicial enforcement or not</b>. Surely you’re not suggesting, are you, that the President may ignore CA3 because it might in some contexts be nonjusticiable?
Moreover, the Administration <i>will</i> abide by CA3 not merely because of a perceived moral obligation to faithfully execute the law — which <i>ought</i> to be enough — but also because failure to do so will expose folks to war crimes culpability.
1) Now that we know that Common Article 3 is determined to apply and therefore that Common Article 3 should have applied for the last five years, what about command responsibility for all those persons lower than the President and Vice-President (including the high level lawyers) that have put in place treatment of detainees in violation of what Common Article 3 requires? Just the high level civilian authority and military general officers involved. Having a few of them sit in jail is the way to make sure that the type of sophistry that has occurred on this subject for so long is stopped – not just on the backs of the low level military. 2) On Congress passing a detainee law (sort of a Military Commissions Heavy) as opposed to trying these persons in court martials or civilian courts, Geneva obligations are not just on the Presidency but on the Congress and as is well known Common Article 3 is customary international law. So Congress and the President actions would place the United States in breach of our international law obligations (as a matter of treaty or customary international law). I can hear those saying “So what?” 3) I think… Read more »
I think Benjamin’s remark regarding CA3 being customary international law is well made, but as he himself notes, this is likely to have little effect on Bush, nor is the prospect of being tried as a war criminal.
Jack Balkin points to the difficulty Congress faces in legislating the Whitehouse out of the corner Hamdan has put it in. Julian, you are correct, this is a political question – whether you are correct that Congress will follow in lock-step with the president’s request remains to be seen. Looking at Balkin’s view of Congress’s three proposed options (with each getting progressively more politically risky), is it likely Congress would choose any of them?
If Congress overrules the Geneva Convention, as interpreted by America’s highest court, what are the international political and legal consequences? I would think they would be huge.