THE WAGES OF INDECISION

Brief commentary on the Supreme Court ruling in Hamdan case.

The Bush administration lost this case not because detainees cannot be tried for war crimes, or that they must be classified as P.O.W.’s or because the Bush administration opted for military commissions per se but because they were following neither international law, statutory law nor even the precedent of Ex Parte Quirin, which I have long argued is the governing standard. The Supreme Court, at least in the part highlighted by SCOTUSblog, agreed:

“Quirin held that Congress had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law of war. 317 U. S., at 28. UCMJ Art. 21, which is substantially identical to the old Art. 15, reads: “The jurisdiction [of] courts-martial shall not be construed as depriving military commissions … of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such … commissions.” 10 U. S. C. §821. Contrary to the Government’s assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions-with the express condition that he and those under his command comply with the law of war. See 317 U. S., at 28-29. Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21. Cf. Ex parte Yerger, 8 Wall. 85, 105. Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Art. 21 or the AUMF, was enacted after the President convened Hamdan’s commission, it contains no language authorizing that tribunal or any other at Guantanamo Bay. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the Constitution and laws, including the law of war. Absent a more specific congressional authorization, this Court’s task is, as it was in Quirin, to decide whether Hamdan’s military commission is so justified. Pp. 25-30”

Having wandered in a weird zone of their own making for several years in an effort to make no clear decision between the differing agendas of the Departments of Justice, Defense and State; and to delay military trials that could result in death penalty convictions that would offend European and Muslim opinion, the Bush administration is now back to square one. He who hesitates, is lost.

To be tried, the detainees must face a court-martial or properly constituted military commission. It may have been possible, under the standard of “exigency”, to have conducted battlefield trials by commission in Afghanistan in the immediate aftermath of the overthrow of the Taliban by the loose and somewhat incoherent structure set up by the Bush administration but not several years after the fact. Time for calm reflection negates exigency.

Having precedents from WWII available in regard to commissions and ample time to ask for legislative authorization I can only conclude that the Bush administration’s entire legal strategy was to secure not an ultimate conclusion for their judicial process, but an unlimited delay. Their preference for trying small fry and marginal figures,when they finally began judicial proceedings, instead of al Qaida operatives of unimpeachable guilt like Khalid Sheikh Mohammed, adds to my suspicion in this regard.

What should the Bush administration do now ? Go to Congress and ask for legislation on military commissions whose procedures fits precedents from our past wars and satisfies the complaints SCOTUS outlined in their Hamdan decision. Then let the commissions roll.

Hat tip to Memeorandum.

LINKS ON HAMDAN CASE:

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