University News
Constitution Day: Overturning of the Bush Doctrine
September 18, 2006
The Trial of the Century: Hamdan v. Rumsfield and the Overturning of the Bush Doctrine
By Peter Cole, History
This landmark case is clearly one of the most important of not just the year but also of the short century. When the Supreme Court ruled that the Bush Administration could not hold prisoners indefinitely without charges, it sent shockwaves because the case also suggests that the administrations entire legal justification for many of its actions after 9-11 (i.e. the War on Terror) violate both the US Constitution and international law, specifically the Geneva Conventions.
Salim Ahmed Hamdan is a Yemeni who was captured by US armed forces during its invasion of Afghanistan. Hamdan had served as Osama bin Ladens driver and was one of an untold number, likely in the thousands, who were imprisoned by the US military but not charged with any crime. Hamdan has sat in a military jail at the US naval base at Guantanamo Bay, Cuba.
Military and civilian attorneys representing Hamdan, led by Navy Lieutenant Commander Charles Swift and Georgetown University law professor Neil Katyal, filed suit against Donald Rumsfield, the U.S. Secretary of Defense, on the grounds that US detention policy violated the Constitution (rights of the accused) and Geneva Conventions Common Article 3, which guarantees that all signatory nations provide minimal standards to prisoners, i.e. basic legal rights that all are entitled to. The defense team also viewed Hamdans case as a test case to challenge the legality of the Bush Administrations controversial plan to set up a system of military tribunals outside of the normal US military legal systemone in which prisoners had no legal rights and US courts had no power to intervene to protect them.
Department of Justice lawyers, and other defenders of the administration, contended, essentially, that in wartime the president has virtually unlimited powers to protect the nation. Whether at Gitmo or other secret prisons overseas, the Administration should be able to treat foreign fighters and terror suspects any way it saw fit. Moreover, Bushs lawyers argued that the Geneva Conventions do not apply to terrorists who act in violation of the commonly accepted rules of war, as terrorists have not signed onto such accords nor do they respect them.
The Supreme Courts June 2006 ruling affirmed Hamdans lawyers contention that the military tribunals were unconstitutional. The majority opinion, written by Justice John Paul Stevens, claimed that the military commissions, with extremely narrow protections for the rights of the accused, violated the Uniform Code of Military Justice as well as Common Article 3 of the Geneva Conventions.
The effects of the ruling have been immediate. The US military has announced its intentions to comply, if for no other reason than to ensure, if American soldiers are captured, that they, too, are treated humanely. Also, it is very possible that other Bush Administration anti-terror programs are unconstitutional, including the entire notion of foreign detention centers and the National Security Administrations domestic eavesdropping program. Moreover, if the president wants such overarching powers then he must get permission explicitly from Congress. Further, it is even possible that other countries could bring war-crimes charges against US military officials, CIA officers, or other US government officialsor by future US presidential administrations under the War Crimes Act. How the Bush Administration will respond, in tailoring a new system of military tribunals, remains to be seen.
Posted By: University Communications (U-Communications@wiu.edu)
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