William T. Wilson, Esquire
June 2006 ruling in Hamdan v. Rumsfeld limits presidential decision-making in wartime and has direct consequences for Guantanamo Bay detainees
The United States Constitution specifically addresses treaties with other countries, and makes it clear that, once properly ratified, they are laws of the United States equal to any other statute. Recently these issues have been put to the test regarding the treatment of prisoners held at Guantanamo Bay in Cuba. These prisoners are believed to have acted on behalf of the Taliban or the al Qaeda terrorist group as part of the September 11th attacks. This article will explain the Supreme Court's June 2006 ruling on Hamdan v. Rumsfeld, and how it impacts the decision-making process on issues of national security, including the decision to go to war.
The Geneva Conventions
First, it is important to examine how decisions regarding
wartime, foreign prisoners and national security were determined in the
past. After the horrors of World War II, the international community drew
up four conventions concerning the treatment of people during wartime
(the Geneva Conventions), which were then ratified in entirety by the
United States. Although the four conventions address a number of different
issues, they all share a principle that certain minimum standards of behavior
apply to all persons. "Common" Article Three, so called because it is
common to all four conventions, provides that certain provisions, including
that sentences not be passed or executions carried out except by a regularly
constituted tribunal applying the judicial guarantees recognized as indispensable
by civilized peoples, apply to all persons placed out of combat by detention.
Developments Since 9/11
Since September 11, 2001, the United States has struggled
with the legal parameters that apply to its security, especially where
they relate to the terrorist organization that launched the attacks on
the World Trade Center and the Pentagon. Shortly after the campaign in
Afghanistan began late in 2001, a detention facility was established at
Guantanamo Bay in Cuba to hold individuals believed to have acted on behalf
of the Taliban, which had governed Afghanistan, or the al Qaeda terrorist
organization, which operated there under the Taliban's protection.
The selection of Guantanamo Bay as the location was unabashedly an effort to prevent America's own courts from exercising any review concerning these detainees. Simultaneously, the executive branch has insisted that neither the courts nor Congress has any input where, in the President's judgment, the issue in question impacts national security. The Constitution makes the President the Commander in Chief of the U.S. Armed Forces, but Congress decides whether to go to war. Congress made this decision by issuing the Authorization for the Use of Military Force (AUMF), shortly after the September 11th attacks. The Constitution, however, also reserves other powers related to national security to Congress, including the power to make rules concerning captures on land and water, to raise and support armies, to make rules for the government of the land and sea forces, and to define offenses against the Law of Nations.
Constitutional Limits on Executive Power
Nevertheless, the President has declined to acknowledge constitutional limits
on his discretion where national security is concerned. This position
has been implemented more broadly than merely as it applies to Guantanamo
Bay, resulting in bypassing an uncertain number of our laws, and of over
750 "signing statements," under which the President signs a
law while declaring he will not abide by part or all of it. One of the
laws the President has maintained was not binding on him is the Geneva
Convention on the Treatment of Prisoners of War, one of the four drafted
in 1949, including its Article Three.
Returning then to the issue of the treatment of detainees, the safety of our troops is often used as a reason for this unfettered executive discretion, but it is important to remember that the military is not always in agreement with the need for the practice in question. In fact, the Judge Advocates General of all three of the principle uniformed services spoke in opposition to the use of interrogation techniques that deviated from the standards of the Geneva Conventions. They did this because of the belief that the conventions were the law of the United States, and also because they believed that the use of such questionable means would create greater danger to our troops than it could prevent. The expertise of these soldiers was rejected by civilian policy makers in the executive branch, followed by a number of well-publicized abuses that have, indeed, increased the danger to our troops in the field.
Impact of the Court's Ruling
One week before our Independence Day, the United States
Supreme Court ruled on Hamdan v. Rumsfeld, rejecting the idea that the
President's authority in matters of national security is not subject to
the checks and balances of our Constitution. The ruling also established
the fact that the Geneva Conventions are binding on the executive and
that Common Article Three, at least, applies to detainees in Guantanamo
Bay. In a brief note, the Court mentioned one of the most controversial
issues-whether the detainees are entitled to a decision by a summary tribunal
prior to being denied the status of prisoners of war- but did not decide
that question. Therefore, some of the procedures of the tribunals adjudicating
the fates of the Guantanamo detainees will probably change to comply with
the requirements of Common Article Three.
The most significant outcome of the court's decision will likely be its recognition of the role of the legislature in making war. Our people and troops may now have the benefit of the real strengths of our system, its diversity and deliberative process of making important policy, and in determining what will make them most secure. Between this Supreme Court decision and the Fourth of July, it was a great week for America.
About the Author: William T. Wilson of MacElree Harvey is a member of the United States Army's 353rd Civil Affairs Command and most recently served as Military Assistant to the Director, Iraq Reconstruction Management Office, Baghdad.
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