The Supreme Court faces an unappealing question this week: What to do about a lower-court decision that gives the president unfettered authority to chuck the Constitution, military law, and the Geneva Conventions in trying foreign detainees being held at Guantanamo Bay? It's a question that's only been complicated further by Harriet Miers' withdrawal today as Bush's nominee and the uncertainty that creates for the court's composition.
For weeks, the justices have been avoiding one of the term's most far-reaching and explosive cases, Hamdan v. Rumsfeld. The case seemed made for review by the court. In two contentious opinions that came down in June 2004, the justices left open crucial questions about the scope of the rights of the foreign suspects whom the Bush administration is holding at Guantanamo Bay. Hamdan is an obvious vehicle for beginning to provide answers. The lower-court opinion in the case, by a panel of three judges on the D.C. Circuit in July, was breathtakingly broad. It allowed the administration to try Salim Ahmed Hamdan, the former bodyguard and driver of Osama Bin Laden, before a special military commission for crimes including murder and terrorism. Because it sets itself no limits, the opinion in theory would also allow the president to set up the same sort of commission—one that doesn't provide for basic rights afforded both in civilian court and in a military court martial—for any offense committed by any offender anywhere, including by an American on American soil. "No decision, by any court, in the wake of the September 11, 2001 attacks has gone this far," Hamdan's lawyers argue. They're right.
Yet twice in the last few weeks the Supreme Court has considered whether to hear Hamdan this winter or spring, and twice the justices have declined to say they will do so. Tomorrow, they may discuss the case for a third time. Four-hundred-and-fifty law professors issued a statement on Wednesday urging it to grant review. They think the military commission set up to try Hamdan should be ruled out of bounds for three reasons. First, the commission violates traditional separation-of-powers principles—the president created it, defined who and what offenses it may try, set all its rules, and controls the appointment of its members. One branch of government isn't supposed to act both as prosecutor and judge. Second, the commission is out of step with constitutional and international standards of due process. Its rules allow for unsworn statements as testimony and for evidence that may have been gathered using coercive tactics that amount to torture. The presumption of innocence can be dispensed with at any time. Hamdan also has no right to be present at his trial.
Perhaps most significant, in approving the commission, the D.C. Circuit appears to have stripped the basic protections of the Geneva Convention from all the Guantanamo detainees. In other words, no Geneva for the fight between the United States and a terrorist group like al-Qaida. This is a long-sought goal of the Bush administration—it's the position taken by Attorney General Alberto Gonzales and his Justice Department that led to the 2002 torture memo.
The D.C. Circuit threw Geneva overboard with a reading of the convention's Common Article Three that is plausible but unconvincing, as Georgetown law professor David Luban explains in this helpful post. Common Article Three protects detainees from being sentenced or punished without minimal rights and protections. It prohibits torture and "humiliating and degrading treatment." Its text states that it applies to armed conflicts that are "not of an international character." The question is what that phrase means. Two judges on the D.C. Circuit panel—one of whom was John Roberts, before he became the Supreme Court's chief justice—read "not … international" to mean "internal," as in a civil war. Wars between states are covered elsewhere in Geneva, so this cramped reading of Common Article Three doesn't remove the significant protections for prisoners of war and civilians in conflicts that pit one state against another. But detainees captured in conflicts that are neither civil nor state-against-state are out of luck. The third judge on the panel, Stephen Williams, argued that "not international" really means "not between nation states"—in which case Common Article Three would apply to the United States' fight against al-Qaida. Luban points out that Williams' reading is standard among international lawyers. If the D.C. Circuit majority's contrary interpretation is left to stand nonetheless, then Common Article Three is no longer common—it doesn't apply to everyone anymore.
The Bush administration, of course, is happy with the blank check it got from the D.C. Circuit and is urging the Supreme Court not to meddle. Certainly don't grant review now, Solicitor General Paul Clement argues in his brief—Hamdan hasn't even been tried yet. The problem with this argument is that the government is using the D.C. Circuit's ruling in Hamdan as a big weapon in another set of Guantanamo cases.
Hamdan is one of only a handful of the hundreds of Guantanamo detainees—the precise count is unknown—who actually faces charges. The rest are being held indefinitely, many since 2001, with recourse only to tribunals that review simply whether they are "combatants," and that have many of the same un-defendant-friendly features as Hamdan's special commission. The detainees are challenging these tribunals before another panel of D.C. Circuit judges in a set of consolidated cases known as Al Odah. That panel is bound by the circuit's decision in Hamdan as long as it hasn't been overruled. And the government argues that Hamdan gives it a free pass in Al Odah. The D.C. Circuit's opinion cuts off the detainees' claim in those cases that Common Article Three gives them procedural protections that they're currently not getting, and undermines their claim to constitutional rights as well. So Hamdan matters now, to a great many people.
What's the Supreme Court thinking about Hamdan? Here are the possibilities. It takes four justices to grant review in a case, but five to win it. So if only four think the D.C. Circuit was wrong, they may decide to hold their noses and agree not to hear the case in order to prevent it becoming nationally settled law.
John Roberts' ascension to the court adds another wrinkle. Presumably he has decided to remove himself from the matter, since Hamdan is a case that he helped decide and judges generally aren't supposed to review their own decisions. That call, however, is entirely his to make, and at this stage it's not public.
If the court were to decide to hear Hamdan and Roberts didn't take part, then the justices could split 4-4—in which case the lower court opinion would stand. Up to now, review by eight justices hasn't seemed likely. Since O'Connor thought she was about to step off the court, the justices may well have agreed not to hand down any decision in which her vote would be decisive. But Miers' withdrawal could scramble that calculus. If O'Connor keeps her promise to Bush to stay on until the Senate confirms her replacement, she won't be going anywhere for a while. In a different case last spring, which also happened to involve tricky questions of international law, O'Connor wrote, "It seems to me unsound to avoid questions of national importance when they are bound to recur." She could have been talking about Hamdan.