Are the military commissions set up for "enemy combatants" constitutional?
Not the way this commission has be been set up. I think SCOTUS has agreed to hear the case in part because it is going to reverse some of the D.C.’s appeals court
(pdf) ruling if not all, which had reversed the district court, and holds that:
1. Congress authorized the military tribunal trying Hamden through AUMF
2. Congress’ ability to negotiate treaties (Geneva) doesn’t “create judicially individual rights,” and
3. To the extent there is ambiguity about the meaning of Common Article 3 as applied to al Qaeda and its members, the President’s “reasonable” view must prevail
The district court
(pdf) had ruled:
1. Hamden wasn’t found to be an offender triable under the rules of war by a “competent tribunal”
2. And “the Military Commission under the President’s order are ‘contrary to or inconsistent’ with those applicable to courts-martial”
On its face, AUMF doesn’t authorize Bush to establish military commissions. Or, to word it differently, AUMF allows Bush to establish military commissions, illegally wiretap U.S. persons
, and circumvent any law he wants.
Title 10, Section 836 of U.S. Code cited in the appeals court ruling, allows the president to prescribe
rules for military commissions, not establish commissions.
Title 10, Section 821
Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.
All rules and regulations made under this article shall be uniform insofar as practicable.
- Section 836. Art. 36. President may prescribe rules
is also addressed by the appeals court. It gets a little murky here. The language of Article 821 doesn't appear to authorize trial by military commission. But let's allow that it does. The question now becomes are Gitmo detainees covered by Geneva? Neither court clarified whether Hamden is a lawful combatant, but in its ruling the district court appears to err on the side of caution. Both courts refer to Hamdan only as an enemy combatant. The district court states: “There is nothing in this record to suggest that a competent tribunal has determined that Hamdan is not a prisoner-of-war under the Geneva Conventions. Hamdan has appeared before the Combatant Status Review Tribunal, but the CSRT was not established to address detainees’ status under the Geneva Conventions. It was established to comply with the Supreme Court’s mandate in Hamdi
... to decide ‘whether the detainee is properly detained as an enemy combatant’ for purposes of continued detention.”
The questions then become is Bush, under Article II of the Constitution, AUMF, and provision 821 of U.S. Code, authorized to declare who is and isn’t a lawful combatant, and does he have the authorization to allow evidence gained under torture and bar defense lawyers from meeting with and/or cross examining other Gitmo detainees accusing their clients under provision 836.What are the larger implications of this case on other executive powers relating to the war on terrorism? Carte blanche
executive authority to designate procedural rules for military commissions that would otherwise be tossed out in regular tribunals and civilian courts and extending interpretive powers at least during times of conflict/war.