10/14/2005

ACSBlog: Why the Court Should Hear Hamdan

Guest Blogger: Why the Court Should Hear Hamdan

by David H. Remes

Tomorrow morning, the Justices of the Supreme Court will meet to select new cases for review. One case on their list, Hamdan v. Bush, has far-reaching implications for our system of checks and balances and the well-being of American soldiers around the world.

Salim Ahmed Hamdan – also known as “Osama’s driver” – was seized in Afghanistan in November 2001 and has been at Guantánamo since 2002. The government has charged him with conspiring to assist Al Qaeda and designated him for trial by a “military commission” created by President Bush to try foreign nationals seized in the war against terrorism.

The military commission – the first in over 50 years – resembles none that came before. Its procedures deny the accused the most elementary protections. Citing the unfairness of those procedures, three military prosecutors have resigned from commission cases.

Last November, a federal judge ruled that the new military commission procedures are unlawful because they violate Hamdan’s rights under the Geneva Conventions. This summer, disagreeing, a federal appeals court ruled that the President may deny an individual the protections of the Geneva Conventions and that his denial of those protections is not subject to judicial review.

All agree that Hamdan’s case raises profound questions about the scope of presidential power and the role of the federal courts in reviewing presidential action and enforcing treaties. The government has urged the Justices to wait to take up these questions until Hamdan has been tried, but a distinguished group of retired generals and admirals, whom I represent, has told the Justices that these questions cannot wait.

These former military leaders, and many other friends of the military, fear that if the President is free to deny the protections of the Geneva Conventions to our enemies, our enemies will consider themselves free to deny those protections to our soldiers. They fear that the federal appeals court’s ruling “immediately and directly endangers American soldiers and undermines the laws of war.”

The United States in fact adopted the Geneva Conventions to protect American soldiers captured in battle. As Secretary of State John Foster Dulles stated, America’s participation in the conventions was needed “to enable us to invoke them for the protection of our nationals.” Our consistent application of the Conventions to all enemies – from signatory states to Somali warlords – has saved untold numbers of American soldiers from torture and death.

When North Vietnam insisted that the Geneva Conventions did not apply to American POWs because they were “pirates,” President Nixon demanded – and had the moral authority to demand – that Hanoi apply them. On the 50th anniversary of the Conventions, Senator John McCain stated that he and his fellow POWs would have fared “a lot worse” without the Geneva Conventions’ protections against “the cruel excesses of war.”

The White House has stated that the old rules cannot apply because the war against terrorism is “a new kind of war.” But virtually every major war in the past 200 years has been pronouced “a new kind of war” by governments seeking to justify actions that the old rules prohibit. The rationalization knows no limits. It renders every nation a law unto itself and undermines the very idea of international law.

In denying Hamdan the protections of the Geneva Conventions, President Bush made the United States a law unto itself. In upholding his actions, the federal appeals court placed the President above Congress and his actions beyond judicial scrutiny. This vast and dangerous expansion of presidential power threatens the men and women of our Armed Forces. The sooner the Supreme Court hears Hamdan’s case, the safer our soldiers will be.

ACSBlog: The Blog of the American Constitution Society: Guest Blogger: Why the Court Should Hear Hamdan

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