http://www.taemag.com/issues/articleID.19274/article_detail.asp Looking Backward: Hamdan and the "New" War on Terror By Joseph Knippenberg
One of the most striking features of last week's Supreme Court <http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf> Hamdan decision was the way in which Justice John Paul Stevens, writing for the plurality, sought always to understand the current global war on terror in the light of rules developed in and designed for more conventional conflicts. This was especially clear in two instances: when he challenged the very use of a military commission to try Salim Ahmed Hamdan, and when he insisted upon the irregularity of the commission's procedures. In the first case, Stevens identifies "four [traditional] preconditions for exercise of jurisdiction by a tribunal of the type convened to try Hamdan": the alleged offenses must occur in the theatre of war; they must occur during the period of the war; parties charged with offenses must be "individuals of the enemy's army"; and the allegations must concern "violations of the laws and usages of war cognizable by military tribunals only." In Stevens' view, the charges against Hamdan seem to fail on at least three grounds: Neither the purported agreement with Osama bin Laden and others to commit war crimes, nor a single overt act, is alleged to have occurred in a theatre of war or on any specified date after September 11, 2001. None of the overt acts that Hamdan is alleged to have committed violates the law of war. For Stevens, there could be no theatre of war before September 11, 2001; if Hamdan's acts are alleged to have taken place before then, they're not cognizable by a military commission. What's more, the principal charge against him-conspiracy-has at best a dubious standing in the common law of war: 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. While Stevens concedes that conspiracy's absence from the treaties may be explicable in terms of the difference between Anglo-American and continental legal systems, he also argues that it is unusual even in commission trials conducted on our own soil. Indeed, he goes so far as to minimize its import-enemies "who [have] done little more than agree to violate the laws of war" would not seem to merit the urgent attention of a military commission. He would prefer that the government prosecute conspirators by more traditional means-by court martial or in an ordinary federal court. Of course, in an ordinary federal court, the extraordinary commission procedures to which he objects would be impermissible. In an ordinary federal court, Hamdan would have the opportunity to confront the witnesses against him, a right not afforded him by the military commission procedures. The commission's rules of evidence are also much looser than those in force in typical American courtrooms. Hearsay and coerced testimony are admissible, and statements need not be sworn. Furthermore, classified evidence need not be shared with the accused and his civilian counsel (though presumably his military counsel would have access to it). While all of these departures from ordinary criminal or court martial procedure might be justified by the unusual and indeed unprecedented nature of the threat we face, Stevens is having none of it: Without for one moment underestimating that danger [posed by international terrorism], it is not evident to us why it should require, in the case of Hamdan's trial, any variance from the rules that govern courts martial. Sworn witnesses unafraid of what al-Qaeda might do to them or their families? No problem. Evidence collected in ways that satisfy fastidious concerns about tainting or adulteration? No problem. Turning soldiers and intelligence agents into police officers and detectives? No problem. Revealing our classified information and the means of collecting it to our enemies? No problem. While the dissenters do an excellent job showing how Stevens cherry-picks or misconstrues precedents and obtrudes his judgment in areas where the responsible political branches-President and Congress-are demonstrably more competent, I want to explore a larger issue underlying this inter-branch dispute: the difference between the kinds of judgments made in courtrooms and those made in executive offices and legislative chambers. Much of Stevens's argument depends upon his understanding of the "common law of war," a significant portion of which is codified in treaties like the Geneva Conventions, with the remainder embodied in practices and policies commonly adopted, explicitly or implicitly, by "civilized" nations. In other words, he looks backward at these rules and practices and applies them, either directly or by analogy, to the case at hand. He does not (and ought not) purport to be making new rules; at most, he develops the implications of rules already at hand. That's what judges are supposed to do. Such a procedure is, of course, ill-suited to a situation not anticipated (or at best only imperfectly anticipated) by those who developed the rules in the past. If al-Qaeda is a different sort of adversary than we have encountered before, and if the global war on terror is a new and different sort of war, then simple application or even narrowly analogical reasoning may not be adequate to our new challenges. When they confront something like this, judges ought to be properly deferential to the other branches, whose job it is precisely to deal with novelty. Indeed, the very notion of a common law of war acknowledges the possibility of novelty and adaptation, undertaken especially by those responsible for civilized conduct on the battlefield (if that is not too contradictory a notion). When encountering new circumstances, commanders and commanders-in-chief innovate, not only by adopting new strategies and tactics, but by devising new means of dealing with captives, all within the confines of the civic and military ethos they have cultivated. When such new practices are endorsed, accepted, or imitated by others, they too become part of the common law of war, despite having originated outside its bounds. Judges-who do not have trained military judgment, access to information to which commanders are privy, or the responsibility to "wage war successfully," as Chief <http://en.wikipedia.org/wiki/Charles_Evans_Hughes> Justice Charles Evans Hughes (who had also served as Secretary of State) once put it-ought to be very chary of second-guessing these new developments. If anyone is going to second-guess the President and his battlefield commanders, it ought to be Congress, which seems actually to have done so only in part in this instance. While the Detainee Treatment Act of 2005 <http://jurist.law.pitt.edu/gazette/2005/12/detainee-treatment-act-of-2005-w hite.php> limits the interrogation methods that may be used with captives, it avoids explicitly addressing the question of military commission procedures, leaving it subject to judicial review (albeit a different kind of review than the one undertaken by the Court in this case). In other words, Congress in 2005 passed the buck, failing to enter into a responsible political conversation with the executive branch over how to try detainees in this new kind of war. Given the nature of courts in general and of this Court in particular, the result in Hamdan was almost predictable, once Congress's directive about how and when Hamdan's appeal should proceed was ignored. Since the new rules aren't the same as the old rules, the former are said to be illegitimate. One good thing may result from the Court's willingness to exceed the bounds of its competence and tread on the toes of the politically responsible branches. Everyone seems to agree that Congress now has to step up to the plate and legislate for the military commissions that are supposed to try alleged al-Qaeda members. Given the manner in which national security seems to be the Bush administration's political and substantive strong suit, the resulting legislation may establish procedures that look a lot like those already in place. On the other hand, the Court's repudiation of those procedures in Hamdan provides some ammunition to those who have a conventional or law-enforcement view of the global war on terror, which is (I'm sure) what they hoped when they succeeded in passing the buck in the first place. If the Bush administration (as it ought) chooses vigorously to fight this battle, it can accomplish two things at least. First, its judgments about how to try detainees will in the end be vindicated, thus enabling us to "wage war successfully." And second, the two politically responsible branches will have repudiated the judgments of Justice Stevens and his colleagues, which would have the salutary effect of reminding the Court of its mere equality with, and the deference it owes to, them. Both results are worth the expenditure of a great deal of political capital. Both would be a substantial contribution to President Bush's legacy of not only defending the nation but also defending the appropriate balance between the three branches of government. In connection with the latter legacy, the only thing that could improve upon it would be the appointment of yet another judicially modest nominee to replace Justice Stevens, who has here shown his imperious impatience with the limits of his office. [Non-text portions of this message have been removed] ------------------------ Yahoo! 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