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.