Salim Ahmed Hamdan was captured by U.S. forces in Afghanistan and has spent three years interned at Guantanamo Bay Naval Base in Cuba. Finally this week, he got his day in court, and what a refreshing day it was. For the first time, a federal judge has said what most of the world has long believed: American treatment of the captives at Guantanamo goes against the rule of law, against the nation’s international obligations and against the best interests of American troops in foreign conflicts.
Hamdan claims he is a prisoner of war, entitled to the protections of the Geneva Conventions, including a formal court martial for any crimes he is accused of committing. The U.S. government said he was an “enemy combatant” not governed by the conventions, and that he could be tried by a special military commission, which would afford him substantially fewer rights than a court martial. On Monday, U.S. District Judge James Robertson issued a landmark ruling that Hamdan’s claim of POW status must be evaluated and that he cannot be tried by a military commission until the commission’s rules of procedure are made consistent with the rules that govern courts martial.
Robertson did not rule on whether the military commissions themselves are unconstitutional, but he came close. “The major premise of the government’s argument that the president has untrammeled power to establish military tribunals is that his authority emanates from Article II of the Constitution and is inherent in his role as commander-in-chief. None of the principal cases on which the government relies … has so held.” Rather, he said, the courts previously have upheld a president’s power to create military tribunals when that power was explicitly granted by Congress. “If the president does have inherent power in this area, it is quite limited. Congress has the power to amend those limits and could do so tomorrow.”
Robertson did not find that Hamdan is a POW. But he did find that the military had to take Hamdan’s claim of POW status seriously. It must convene a “competent tribunal” to evaluate that claim. Until that happens, Robertson said, Hamdan must “be accorded the full protections of a prisoner-of-war.”
The government advanced what can only be described as comical arguments on why Hamdan is not a POW. It claimed, for example, that the United States was fighting “two separate conflicts in Afghanistan,” one against the Taliban and one against Al-Qaida. That claim, Robertson wrote, “finds no support in the structure of the conventions themselves, which are triggered by the place of the conflict, and not by what particular faction a fighter is associated with.”
The government also claimed that Hamdan wasn’t a POW because the president said he wasn’t. He “has already determined that detained Al-Qaida members are not prisoners-of-war under the Geneva Conventions.” To which Robertson responded, “The president is not a ‘tribunal.’ “
American treatment of its captives, from the scandal at Abu Ghraib to the failure to follow the Geneva Convention in Guantanamo, has given the United States a black eye in the world that most Americans don’t fully appreciate. These issues are a continuing topic for scathing discussion in Europe and elsewhere. To Americans who might be inclined to care less what the French or others think about this, consider the consequences for American troops.
As Robertson wrote, “The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts, one that can only weaken the United States’ own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad.”
That worry, and a simple dedication to justice, led many conservative military lawyers and judges to support Hamdan’s case. Robertson’s ruling is not evidence of an “activist judge” going over the edge (a label the right loves to apply to any judge it doesn’t agree with). It’s taken three years, but with Robertson’s ruling, justice is finally beginning to come to those scooped up on the battlefields of Afghanistan and Iraq.