Debate: Military tribunals for suspected terrorists

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Were military tribunals in the US justified?

Background and context

The Executive Order establishing the tribunals and the Supreme Court ruling that halted them: In 2001, President Bush ordered the creation of military tribunals to try suspected terrorists. Following many years of debate over the justifications for these tribunals, the Supreme Court ruled on June 29th, 2006 in Hamdan v. Rumsfeld that they were unconstitutional and unlawful (both domestically and internationally) on a number of grounds:

1. That the AUMF did not give sufficient authorization for their institution.[1]
2. That the President does not have the constitutional authority to constitute tribunals without the "express" authorization of Congress.[2]
3. That the tribunals violated the Uniform Code of Military Justice.[3]
4. That the tribunals violated international law.[4]

Following the ruling, the current military tribunals were stopped, and 60 other pending tribunals for suspected terrorists have been cancelled (There are roughly 460 detainees in Guantanamo).[5]

The debate continues: The Supreme court ruled against Rumsfeld and the Bush administration by a margin of only 5 to 3. That three judges dissented illustrates the difficulty of this debate, and the possibility that the ruling was wrong. Despite this ruling, President Bush the BBC reported that "President Bush has said he will work with Congress to try to solve the problem, suggesting that the debate over military tribunals may not be finished yet." - BBC On October 17th, 2006, such a bill was passed: The Military Commissions Act of 2006. According to the Council on Foreign Relations: "This legislation gives the US president authorization to set up military commissions to try enemy combatants, and sets some limits for their interrogation and prosecution based on Common Article 3 of the Geneva Conventions. Defendants may not invoke the Geneva Conventions during trials or file habeas corpus petitions in federal court, and cannot prevent hearsay evidence from entering the court. Defendants may receive the death sentence." The Supreme Court has said that such Congressional approval is constitutionally sufficient for the continuance of the tribunals. On the other hand, this would not undermine the legal and other constitutional arguments that it has presented. It should be noted that the full debate over these tribunals that lies before Congress and Americans extends even further than the constitutional and legal considerations addressed by the Supreme Court in its ruling. International diplomatic and image factors, American public opinion, and the general direction and weight of the think-tank and academic community (among other factors) are all salient to the overall question of whether the tribunals are justified.

Other more in-depth background resources:

• Wikipedia - Guantanamo Military Commission
• Wikipedia - Hamdan v. Rumsfeld
• Wiki News - U.S. Military Tribunals in Guantanamo Bay...

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Separation of Powers: Are military tribunals consistent with the separation of powers?

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Yes

Bush administration maintained that the Detainee Treatment Act deprived the Supreme Court of jurisdiction to review decisions by the D.C. Circuit Court.[6]

The Bush Administration cites THREE STATUTES THAT MAY SUPPORT THE TRIBUNALS IN THE CONTEXT OF THE SEPARATION OF POWERS: the AUMF and two statutes of the Code of Military Justice:

1. AUMF - The Congressional Authorization for the Use of Military Force called for the Bush administration to take ALL NECESSARY MEANS IN PREVENTING FURTHER ATTACKS OF TERRORISM. The Bush administration argues that the tribunals are a key element of this. Indeed, Congress affirmed President Bush's interpretation of the statute, saying that the required consultation (under the 1973 War Powers Act) had occurred:

Supporting interpretations: Justice Thomas argued that under the framework established in Ex parte Quirin and Youngstown Sheet & Tube Co. v. Sawyer, President Bush’s decision to try Hamdan before a military commission "is entitled to a heavy measure of deference," inasmuch as Congress had authorized the President to use all necessary and appropriate force to prevent future acts of terrorism when passsing the Authorization for Use of Military Force.[7]

The United States Court of Appeals Decision - July 15, 2005 also defends the tribunals on the grounds of their accordance with the AUMF - "In the joint resolution, passed in response to the attacks of September 11, 2001, Congress authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” the attacks and recognized the President’s “authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, 224 (2001). In re Yamashita, 327 U.S. 1 (1946), which dealt with the validity of a military commission, held that an “important incident to the conduct of war is the adoption of measures by the military commander, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war.” Id. at 11. “The trial and punishment of enemy combatants,” the Court further held, is thus part of the “conduct of war.” Id."

..."We think it no answer to say, as Hamdan does, that this case is different because Congress did not formally declare war. It has been suggested that only wars between sovereign nations would qualify for such a declaration. See John M. Bickers, Military Commissions are Constitutionally Sound: A Response to Professors Katyal and Tribe, 34 TEX. TECH. L. REV. 899, 918 (2003). Even so, the joint resolution “went as far toward a declaration of war as it might, and as far or further than Congress went in the Civil War, the Philippine Insurrection, the Boxer Rebellion, the Punitive Expedition against Pancho Villa, the Korean War, the Vietnam War, the invasion of Panama, the 9 Gulf War, and numerous other conflicts."

2 and 3: President Bush invoked authority based in two provisions of the Code of Military Justice. Section 82118 which grants subject matter jurisdiction to courts martial and does not otherwise “deprive...military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war” allow for such trials.

CONGRESS GAVE "APPROPRIATE CONSULTATION" AFFIRMING TRIBUNALS - Some legal opinions indicate that this was sufficient, and that Congress did not necessarily have to directly establish them as some argue (counter ->):

Ex Parte Mulligan opinion supporting that Congressional "sanction" is sufficient: - "Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature."

Justice Jackson opinion - Congressional sanction confers important power and legitimacy on the Presidential Order in what may be a "grey area" constitutional matter: - "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate."[8] This opinion continues by describing instances where the exact separation of powers is not clear, but that the more important matter is the concurrence of the branches in a manner that confers legitimacy on actions. Indeed, instituting the tribunals may be seen as within this grey area as legal rulings fall on both sides that direct Congressional institution of tribunals is required and that only Congressional "sanction" is required. In this apparent grey area, it can at least be said that substantial constitutional legitimacy was added to the tribunals through Congressional "consultation" and approval.

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No

COURT AUTHORITY: "Prohibiting inquiry into tribunal judgments by federal courts is a suspension of the writ of habeas corpus in violation of Article I." - Gerard Clark Suffolk Law School.[9] - "the President was authorized to issue the order, but that his attempt to insulate its judgments from habeas corpus is unconstitutional."

(<- counter) Detainee Treatment Act doesn't deprive Supreme Court of jurisdiction over Hamdan v. Rumsfeld: The court denied the government's assertion that it lacks jurisdiction to review decisions by the D.C. Circuit Court because the Detainee Treatment Act of 2005 only strips the Supreme Court of appellate jurisdiction over cases filed after its enactment.[10]

Marbury v. Madison clearly establishes the Court as the final arbiter of the meaning of the Constitution - it has jurisdiction in all criminal judgements, although Congress, and Congress alone, is Constitutionally permitted to limit the writ of habeus corpus: While the court has shown restraint when reviewing action of the military, or decisions of the Executive branch concerning national security or foreign affairs, this is the perogative of the courts alone; the executive does not have the contitutional right to shut-out the courts from national security matters.[11]

United States v. Mendoza-Lopez - An example of Court intervention in a matter pertaining to "criminal sanctions" in an area where it has historically shown restraint. The Court reversed an order of deportation against an alien, who after being deported, was now being prosecuted for the crime of re-entry. The Court held that the failure to allow some meaningful Article III review of the defendant’s original deportation order required a reversal and remand. The Court stated, “Our cases establish that where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding...This principle means, at the very least, that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense.” This precedent seems to translate very directly against the Bush administration's "foreclosing" Court jurisdiction on a similar matter of "criminal sanctions". It is important to note that the individual in question in Mendoza-Lopez was an alien (analogous in many ways to a foreign detainee), and that the courts were intervening in a matter where they historical gave deferrence to Congress - immigration and naturalization (analogous to the historical Court deferrence to the Executive on matters of national security). To take the analogy between this alien and a suspected terrorits detainee further, it should be noted that many regard the terrorist attacks of 9/11 as closer to criminal acts than to acts of war, since Al Qaeda is not a state actor. This would help further connect the potentially deportable crimes of Mendoza-Lopez and the potential "crimes" of the suspected terrorists detained at Guantanamo.[12]

I.N.S.v. St. Cyr drew a very similar conclusion against foreclosing its jurisdiction in any matter regarding criminal judgements. According to Gerard Clark of Suffolk University, "The Court implied that a government claim that a federal statute divested the Court of jurisdiction would run afoul of either Article III or the Suspension Clause." [13]

CONGRESSIONAL POWERS: Congress has the power, vested in the Constitution in Article 1, to "constitute tribunals" - this seems to imply a specific statute is required from Congress, not something as non-specific as the Authorization for the Use of Military Force:

• This point was applied by the Supreme Court in its June 29th, 2006 ruling.
• This point is argued in the book Military Tribunals and Presidential Power by Louis Fisher, a Senior Specialist in Separation of Powers at the Congressional Research Service of the Library of Congress.[14]

Ex Parte Milligan concluded that the power to suspend the writ of Habeus Corbus is the power of Congress, not the Executive: “The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department.” The Court was clear that since the time of the Magna Carta, English speaking people had no toleration for executive suspensions of the writ. This seems to effectively reject as unconstitutional the Bush Administration's Executive Order that deprived the writ of habeus corpus to detainees.[15]

The AUMF Was Insufficient: The Supreme Court ruled on June 29th, 2006 that the Authorization for the Use of Military Force did not give authority to President Bush to establish the tribunals.

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Legality: Are military tribunals legal?

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Yes

An "extraordinary" emergency may call for circumventing certain more ordinary legal procedures: This point was argued in the actual 2001 executive order that instituted the tribunals: "An extraordinary emergency exists" because of "potential acts of terrorism", such that it is "not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."[16]

Some rights can be restricted in commissions in certain circumstances - Legal opinions and precedents: 1. In Ex Parte Milligan, four concuring judges concluded that "Congress certainly has the power to create military tribunals and the Fifth Amendment specifically asserts that constitutional rights in such courts are more restricted" - Summary of their opinion from Gerard Clark, Suffolk University Law.

Military tribunals have a history that runs back to the revolutionary war. They were used in the Spanish-American War, the Civil War, World War I and World War II, although not in Korea, Vietnam, or the Persian Gulf.[17]

WWII Qurin case may provide precedent for detainee tribunals: Supporters of tribunals often cite as precedent a case from World War II in which eight German naval officers landed secretly on beaches in the United States and attempted to sabotage war-production facilities. President Roosevelt, by Executive Order, established a military commission for the German officers. The Supreme Court maintained the proceedings as constitutionally permissible under the circumstances. The Court stated, “We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries."[18](see counter - >)

May set precedent for suspending rights of US citizens: - "Quirin approved suspension of a wide range of constitutional rights in military tribunals held in this country with at least one of the defendants being a U.S. citizen." - Gerard Clark, Suffolk University Law School.[19]

"Quirin effectively insulated these tribunals from the Constitution." - Gerard Clark, Suffolk University Law School.[20]

HABEAS CORPUS: Opinion that right of Habeus Corpus does not apply to aliens detained by DOD at Guantanamo: Justice Scalia dissented from the majority ruling to see the Hamdan case, arguing that the Detainee Treatment Act (December 30, 2005) states "[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." §1005(e)(1), 119 Stat. 2742.[21]

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No

(<- counter) Opinion that there are NEVER "EXTRAORDINARY" CIRCUMSTANCES THAT JUSTIFY SETTING ASIDE CERTAIN ORDGINARY LEGAL PROCEDURES: On Ex Parte Milligan Justice Davis, a 1862 Lincoln appointee, expressed this opinion in a lengthy survey of English history, Pre-Revolutionary history, and the Framing of the Constitution: "Time has proven the discernment of our ancestors; for even these provisions, expressed in such plain English words, that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise, when rules and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority."[22]

(<-counter) WWII Qurin Case - There may be important differences seperating the World War II case from the present situation.

1. There is no declaration of war in effect today
2. The detainees in question are not “admitted enemy invader[s].
3. President Roosevelt’s order applied only to the explicitly named saboteurs, not an unlimited number of potential suspects.
4. President Roosevelt authorized the military tribunal only for saboteurs and spies who entered the the United States on behalf of “any nation at war with the United States.” Bush’s order applies to any noncitizen from any territory suspected of terrorist related activities; not only from nations at war with the United States. [23]

<-WWII Case has since been criticized by legal scholars as a "rush to judgement"[24] It is “not a happy precedent,’ said Justice Felix Frankfurter in 1953. Justice William Douglas regretted ruling so quickly without offering a fully reasoned opinion. ‘It is extremely undesirable to announce a decision on the merits without an opinion accompanying it,’ Douglas later said of Quirin. Scholar John Frank, who was a clerk to Justice Black during the Quirin case wrote, "the Court allowed itself to be stampeded.’" [25]

Ex parte Milligan: Courts ruled against tribunals during the Civil War - that they're not Article III courts - may undermine the Bush administration's claim that the War on Terror is an "extraordinary" justification: In ex parte Milligan, the Court decided that neither statute nor the Constitution authorized a military trial of a civilian when the civil courts were still operating. According to Gerard Clark of Suffolk University Law School, "The Court rejected the argument that the commissions were appropriate under the laws of war. Nor did the President's power as commander in Chief justify the use of these commissions." It is important to note that the Court maintained that even the Civil War could not justify the creation of these commissions. This may undermine the Bush administration's claim that the War on Terror is sufficiently "extraordinary" for the creation of such tribunals, as it seems that the Civil War was an even greater crisis for the Union.[26]

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Due process? Do military tribunals involve sufficient due process?

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Yes

An "extraordinary" emergency may call for circumvented certain more ordinary legal procedures: This point was argued in the actual 2001 executive order that instituted the tribunals: "An extraordinary emergency exists" because of "potential acts of terrorism" such that it is "not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."[27] (See subquestion 2 for the extension of this argument)

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No

(<- counter) Opinion that there are NEVER "EXTRAORDINARY" CIRCUMSTANCES THAT JUSTIFY SETTING ASIDE CERTAIN ORDGINARY LEGAL PROCEDURES: On Ex Parte Milligan Justice Davis, a 1862 Lincoln appointee, expressed this opinion in a lengthy survey of English history, Pre-Revolutionary history, and the Framing of the Constitution: (see excerpt of Justice Davis's opinion in Subquestion 2)

Not the same as court-martials - Defendents in military tribunals have far fewer procedural rights than those in court-martials, which some argue is unfair and unjust:[28]

• In courts-martial cases, verdicts can be appealed to the U.S. Court of Appeals for the Armed Forces, composed of civilian judges, and ultimately to the Supreme Court.
• There is no right of appeal to civilian courts in military tribunal cases.
• Court-martial trials are open to the public, while the military tribunals are held in secret.
• In court-martials, the verdict must be by three-quarters of the panel members present in serious cases; in the tribunals, there is only a two-thirds vote necessary.

Low standards for evidence in tribunals are likely to lead to innacurate conclusions: Rules of evidence in civilian courts are created to ensure that the evidence used is not in any way fraudulent, tainted, or erroneous and, subsequently, liable to lead to squewed conclusions. The rules of evidence for military tribunals fall below these standards, and, therefore, are liable to lead to inaccurate conclusions: [29]

1. Allow hearsay testimony;
2. Allow physical evidence to be presented without prosecutors establishing a “chain of custody” to ensure the integrity and authenticity of that evidence;
3. Permit evidence that would be convincing to a “reasonable person,” which is a lower threshold than in regular criminal cases, in which evidence can only be admitted if it is of a high standard of authenticity. The accused can seek witnesses and documents for his defense, but only to the “extent necessary and reasonably available as determined by the Presiding Officer.”

The above liability for innacurate conlusions is unacceptable particularly as capitol punishment is in the cards - a huge liability to US judicial credibility: In the United States, instances of executions based on false evidence substantialy harmed confidence in the legal system. An incident such as this emerging from Military Tribunals seems more likely than in civilian courts due to the weaker evidenciary standards. Domestically and internationally, the credibility of the US rule of law would be substantially undermined if this were to occur. Such a risk may be a substantial weight against any case supporting these evidenciary proceedures and the tribunals in general.

"Innocent until proven guilty" principle is not being applied to detainees many think that it should: Those in charge of the tribunals already have made numerous statements to the effect that the accused are guilty. Discussing the military tribunals, President Bush said, “Remember, these are - the ones in Guantanamo Bay are killers.” Secretary of Defense Donald Rumsfield described the detainees as “among the most dangerous, best trained, vicious killers on the face of the earth,” and said that their treatment would be “consistent with the principles that our nation was founded on, the principles that they obviously abhor and which they sought to attack and destroy.”[30]

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Are the rules and guidelines regulating the provision of attorneys for Military Tribunals legal/justifiable?

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Yes

An "extraordinary" emergency may call for circumvented certain more ordinary legal procedures: This point was argued in the actual 2001 executive order that instituted the tribunals: "An extraordinary emergency exists" because of "potential acts of terrorism" such that it is "not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."[31] (See subquestion 2 for the extension of this argument)

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No

(<- counter) Opinion that there are never "extraordinary" circumstances that justify setting aside certain ordinary legal procedures: On Ex Parte Milligan Justice Davis, a 1862 Lincoln appointee, expressed this opinion in a lengthy survey of English history, Pre-Revolutionary history, and the Framing of the Constitution:(see excerpt of Justice Davis's opinion in Subquestion 2 and other related arguments)

Unfair supply of attorneys: According to the Defense Department rules on military tribunals, regardless of the wishes of defendants, they will be appointed a military lawyer at government expense. They may obtain a regular criminal defense attorney only if they arrange and pay for it themselves. In civilian courts, the inability to pay for a private attorney appropriately leads to the supply of one at government expense. This includes the cost of the attorney and all expenses.

The rules the administration has established regarding how defense attorneys can operate make it virtually impossible for an attorney to undertake a case pro bono, even if he or she wants to. They include:[32]

1. "All civilian lawyers must have security clearances and do their work at the tribunal’s site (Guantanamo)."
2. Prosecutors must give the defense evidence or names of witnesses a week before the trial." Problems with first and second rules: They constrain an attorney’s ability to conduct research and prepare a case because, for example, he or she will be prevented from personally locating and interviewing witnesses who are off-site, traveling to collect documents, examining the alleged scene of the crime, or working with staff in the United States.
3. "Military authorities may tape record defendants’ private conversations with their lawyers, but not use the information learned in the trial." Problem: may prevent lawyers from trying to locate and talk to prospective witnesses and to gather documents.
4. "The civilian defense attorney may only share information about the case with other members of the “defense team.” Problem: this may make the defendant reluctant to be as candid as necessary to create effective defense.[33]

As a result, most defendants are unlikely to have civilian attorneys and instead must be represented by a military lawyer appointed by and under the authority of the executive branch. The problem is that this means the defendant has no opportunity to work with a defense attorney who is fully independent from his prosecutors and with whom he feels confident will represent only his interests.[34]

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Is limited public access to the proceedings of some military tribunal cases legal/justifiable?

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Yes

An "extraordinary" emergency may call for circumvented certain more ordinary legal procedures: This point was argued in the actual 2001 executive order that instituted the tribunals: "An extraordinary emergency exists" because of "potential acts of terrorism" such that it is "not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."[35] (See subquestion 2 for the extension of this argument)

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No

(<- counter) Opinion that there are NEVER "EXTRAORDINARY" CIRCUMSTANCES THAT JUSTIFY SETTING ASIDE CERTAIN ORDGINARY LEGAL PROCEDURES: On Ex Parte Milligan Justice Davis, a 1862 Lincoln appointee, expressed this opinion in a lengthy survey of English history, Pre-Revolutionary history, and the Framing of the Constitution: (See excerpt of Davis's opinion in Subquestion 2 and other related arguments)

Limited Access to Proceedings: (needs to be condensed ->)"The hearings may be closed in certain instances to the press, public, and the defendant if classified information is used or the discussion could endanger national security. Only defense attorneys with security clearance may be present, and may not reveal the content of the proceedings to their clients. At times, the civilian defense attorney will be barred from proceedings and access to some secret information."

It may unfairly obstruct the defense: Critics claim that these rules limit the ability of the defendant and his counsel to know what the evidence is against him. They say it is extremely difficult to fight charges if the accused does not know what proof the prosecution has of what it alleges. Moreover, the defense team always will have access to all of the information and all of the proceedings. In essence, they say that only people within the military command will have access to all of the proceedings and evidence.

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Are the military tribunals consistent with international law?

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Yes

DC Court of Appeals upheld the international legality of the tribunals on July 15, 2005: This reversed the decision of the District Court in favor of Hamdan. The decision cited the following reasons why the tribunals conform with internationl laws: [36]

1. The Geneva Convention is a treaty between nations and as such it does not confer individual rights and remedies.
   1. “[i]nternational agreements, even those directly benefitting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.” RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 907 cmt. a, at 395.
   2. "Rasul v. Bush, 124 S. Ct. 2686 (2004), decided a different and “narrow” question: whether federal courts had jurisdiction under 28 U.S.C. § 2241 “to consider challenges to the legality of the detention of foreign nationals” at Guantanamo Bay. Id. at 2690. The Court’s decision in Rasul had nothing to say about enforcing any Geneva Convention. Its holding that federal courts had habeas corpus jurisdiction had no effect on Eisentrager’s interpretation of the 1929 Geneva Convention. That interpretation, we believe, leads to the conclusion that the 1949 Geneva Convention cannot be judicially enforced. (1987)."[37]
   3. Eisentrager Case German national convicted by military tribunals in China. Justice Jackson concluded "responsibility for observance and enforcement of these rights is upon political and military authorities [not national courts].”[38]
2. NOT A PRISONER Even if the Geneva Convention could be enforced in U.S. courts, it would not be of assistance to Hamdan at the time because, for a conflict such as the war against al-Qaeda that is not between two countries, it guarantees only a certain standard of judicial procedure—a "competent tribunal"—without speaking to the jurisdiction in which the prisoner must be tried.[39]
   1. "One subsection of the Geneva Convention - § 1-5(a)(2) - requires that prisoners receive the protections of the Convention “until some other legal status is determined by competent authority.” (Emphasis added.) The President found that Hamdan was not a prisoner of war under the Convention. Nothing in the regulations, and nothing Hamdan argues, suggests that the President is not a “competent authority” for these purposes."[40]
3. Under the terms of the Geneva Convention, al Qaeda and its members are not covered.[41]
   1. Hamdan "does not fit the Article 4 definition of a “prisoner of war” entitled to the protection of the Convention. He does not purport to be a member of a group who displayed “a fixed distinctive sign recognizable at a distance” and who conducted “their operations in accordance with the laws and customs of war.” See 1949 Convention, arts. 4A(2)(b), (c) & (d)."[42]
   2. "The 1949 Convention does not apply to al Qaeda and its members. The Convention appears to contemplate only two types of armed conflicts. The first is an international conflict. Under Common Article 2, the provisions of the Convention apply to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” Needless to say, al Qaeda is not a state and it was not a “High Contracting Party.” There is an exception, set forth in the last paragraph of Common Article 2, when one of the “Powers” in a conflict is not a signatory but the other is. Then the signatory nation is bound to adhere to the Convention so long as the opposing Power “accepts and applies the provisions thereof.” Even if al Qaeda could be considered a Power, which we doubt, no one claims that al Qaeda has accepted and applied the provisions of the Convention."[43]

Justice Alito concluded that tribunals did conform with the requirement in Common Article 3 of the Geneva Conventions that any such tribunals be "a regularly constituted court" He argued that Common Article 3 was satisfied in Hamdan's case because the military commissions:[44]

1. Qualify as courts
2. Were appointed and established in accordance with domestic law
3. Any procedural improprieties that might occur in particular cases can be reviewed in those cases.

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No

The Supreme Court ruled on June 29th, 2006 that the military tribunals violate the Geneva convention.[45]

The tribunals violate the International Covenant on Civil and Political Rights.[citation needed]

The Uniform Code of Military Justice of the Geneva Convention: Article 39, governing military commissions, requires that sessions of a “trial by court-martial . . . shall be conducted in the presence of the accused.” This has often not occured in the military tribunals.[46]

The Executive Order establishing the tribunals applies to any member of Al Qaida and to those who harbor terrorists. Yet, such persons are not necessarily violators of the laws of war.[47]

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Write Subquestion here...

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Yes

Senator John Warner (R-VA) said he doesn't regard the Supreme Court decision as "a blow" to US legal credibility, but rather as merely "an interpretation of the law".[48]

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No

Harold Hongju Koh, a Yale law professor, said recently the tribunalsare “dangerous because secret commissions impair... accountability and convey...unfairness to the rest of the world.” He also said that the system is “misguided because it falsely suggests that regular American courts are incapable of administering justice to those who grossly violate international law.”[49]

Senator Patrick Leahy (D-VT) said that the tribunals have "violated fundamental American values, tarnished our standing in the world and hindered the partnerships we need with our allies. This arrogance and incompetence have delayed and weakened the handling of the war on terror"[50]

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Where does the American government stand?

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Yes

The House of Representatives passed the Military Commissions Act by a vote of 253 to 168. Republicans voted 219 to 7 in favor.[51]

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No

House Democrats voted 160 to 34 against the 2006 military tribunals legislation.[52]

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