In the Wake of the Supreme Court's Hamdan v. Rumsfeld Decision, Should We Opt for An International Tribunal for Gitmo Detainees?

By DOUGLAS W. KMIEC

Thursday, Jul. 06, 2006

Leaders of Congress from both parties are anxious to address the implications of the Supreme Court's Hamdan decision, which rejected the Administration's claim that the President had the option to try detainees by military commission. Notably, the Justices did confirm the President's authority to detain enemy combatants for the length of the hostilities without a trial of any sort. Yet the indeterminate length of a war on terror, and considerations of basic fairness, demand a careful review of alternatives that won't consign detainees to legal limbo indefinitely.

So what are these alternatives? In this column, I'll consider that question.

The Typically-Cited Alternatives: Enabling Statute, Civilian Criminal Trial, and Court Martial

The most simple would be Congressional approval of the President's original plan for military commissions. After all, the Hamdan decision found no explicit constitutional limit on the President's choice of tribunal structure, assuming Congress passed legislation endorsing that structure.

But there's one catch: The Constitution isn't the only relevant source of law here. In Hamdan, the Court seemed to suggest that even alleged al Qaeda members fall under the protection of Common Article 3 of the Geneva Convention, which by its terms calls for a "regularly constituted court."

It is a reasonable inference that Justice Stevens - the author of the Hamdan opinion -- would not find even congressionally-approved commissions to meet the treaty obligation. Justice Kennedy, whose vote was necessary to the outcome of the closely-split decision, left the matter undecided. Congress, of course, could eliminate the doubt by trumping the treaty, but doing so would be politically difficult.

Criminal trial in a U.S. federal court is another possibility - and one that might allow the government to add conspiracy charges that could be otherwise unavailable. Whereas a plurality of the Hamdan justices questioned whether conspiracy could be tried as part of the law of war before a commission, it is plain that the federal courts have jurisdiction over this offense.

After all, Zacarias Moussaoui and John Walker Lindh both faced charges of conspiring to murder U.S. nationals, providing material support and services to foreign terrorist organizations, engaging in prohibited transactions and the like. Lindh plea-bargained his way into a long sentence, which I bet he and lawyers now regret, and the jury sent Moussaoui away for life.

Nominally, both proceedings were successful, but at a cost. Moussaoui's process in particular, took over five years and necessitated circumventions of basic constitutional guarantees. For instance, despite the Sixth Amendment's Confrontation Clause, Moussaoui was accorded only a modified right to confront the witnesses against him.

Bad law has a way of spreading, and the Moussaoui verdict now stands as an infectious precedent - one highly capable of being misused even in non-terror contexts. One of the salutary reasons for segregating terror trials into commissions was to avoid distorting the regular criminal process with precedents like these, tolerable only due to particular war-on-terror circumstances.

Of course, one of the other reasons was to have a forum willing to accept evidence gathered by battlefield and military interrogation - which, not surprisingly, does not involve the niceties of search warrants and Miranda warnings. Much military interrogation evidence is simply inadmissible in regular courts - unless, of course, we make more Moussaoui-like exceptions, this time to Fifth Amendment protections against self-incrimination. Such exceptions, as I've contended, should be avoided.

Trial by court-martial is also a possibility. The Hamdan decision speaks approvingly of the Uniform Code of Military Justice (UCMJ), and it should. The UCMJ is entirely appropriate for uniformed armies - on our side or against us - that observe the law of war. But al Qaeda is not among them.

The Geneva Conventions do not mandate, and the Hamdan Court did not hold, that we must treat captured al Qaeda terrorists as we do POW soldiers. Despite its reference to Common Article 3 of Geneva, surely Hamdan did not mean to obliterate any difference between a soldier targeting military installations and a renegade enemy of mankind aiming deliberately to kill or maim innocent civilians. Courts-martial are best reserved for those who fight with honor.

The Alternatives That Are Often Overlooked

In addition to these three much-discussed alternatives to military commissions, there are four more options that are often overlooked.

First, there's the option of simply sending some of these people home (or if their home country will not have them, to another that will). Surely by now, we know enough to realize some do not pose a threat, or, at least, a substantial and specific enough threat to justify continued detention.

Second, there's the option of handing off more problematic cases to foreign courts that would also have jurisdiction. Doubtless, with respect to some detainees, given what we have learned of their hostile intent and activities, it would be imprudent to just release them, even if their actions fall well short of any war crime. If possible, these foreign nationals should be returned to their home country for prosecution under that country's laws. Detainees might well be subject to prosecution for a wide variety of crimes under foreign law, from immigration violations to the forgery of official documents, unlawful financial transactions, illegal possession or acquisition of weapons, and so on. This option, of course, necessarily depends on the home countries' giving the U.S. adequate assurances that the detainees will be effectively prosecuted, fairly treated, and if convicted, appropriately punished.

Third, while the United States has made well-articulated objections to the jurisdiction and procedures of the International Criminal Court, there are other international options. In particular, more serious war criminals might be redirected to one of the ad hoc international tribunals with which the Bush administration has fully cooperated in the past, such as that for Kosovo or East Timor. Dispatching United Nations Ambassador John Bolton to persuade the UN Security Council to extend the jurisdiction of an existing ad hoc tribunal would take advantage of available judges, staffs, procedural rules, and facilities already in place. It would also reassure the world community that we have not stacked the deck.

Finally, there will be some cases where a military trial is preferable for reasons of preserving military secrets. In such cases, consideration might also be given to the use of military tribunals created jointly by the United States and one or more other states involved in an international coalition. (This assumes we have no relevant secrets from our allies, of course.) The joint military tribunals of Nuremberg were effective in bringing even the most heinous war criminals to justice - after World War II; perhaps the same is possible during an ongoing, but attenuated, conflict such as the "war on terror."

The Flawed Hamdan Ruling Still Left the Administration Some Room to Maneuver

As a matter of legal interpretation, the Hamdan ruling was deeply flawed. Justice Jackson, the author of the Supreme Court decision that articulated the limits on Harry Truman's Korean Conflict seizure of steel mills, once said that the Justices "are not final because we are infallible, but we are infallible only because we are final." Here, the Justices, though final, were fallible indeed.

In Hamdan, the Justices in the majority disregarded rather explicit statutory limits on their own jurisdiction -- thereby failing to give Congress proper deference. And, of course, they also failed to give deference to the President's reasonable construction of his authority to create separate military commissions under Title 10, let alone his necessarily substantial wartime powers, both those specially conferred after 9/11 and those historically exercised. Even their own Chief Justice's view - expressed while he served on the U.S. Court of Appeals for the District of Columbia Circuit - seems not to have commanded their respect.

The rebuffed political branches seem inclined at the moment to simply engage in legislative tit-for-tat, making military commissions law by Presidentially-signed statute, rather than Presidential order. But perhaps, instead of this one-size-fits-all domestic course, Congress and the President should explore multiple forums informed by the qualitatively different detainees presently held in Cuba. Doing this requires thinking outside the box - that is, beyond our shores - to identify the full range of fair mechanisms that are international in character for handling the detainees of an international war on terror.

Is the War on Terror an International Conflict?

Ironically, to apply Geneva to al Qaeda in Hamdan the Court had to conclude that the present war is "not of an international character." To indulge the Court's conclusion requires more patience and suspension of belief than anyone should be asked to muster. Even if one was inclined to construe these rather clear words as referring to a conflict between a nation and a group of non-national radical Islamists rather than a conflict taking place in solely one nation (the President's wholly reasonable interpretation), the President's view, as a foreign affairs precedent, the separation of powers, and common sense, deserved to be credited.

The Court's illogic aside, America was founded upon a document designed to show "a decent respect to the Opinions of Mankind." And like it or not, international opinion is a component of the war on terror. The President has candidly acknowledged the international criticism of Gitmo. Reliance in whole or part upon an international tribunal might be just the remedy to ameliorate the concern of the world community.

And as for John Roberts, it is just important for him not to leave the building - or at least to limit the occasions for his recusal.


Douglas W. Kmiec is Chair and Professor of Constitutional Law at Pepperdine University. He served as head of the Office of Legal Counsel (U.S. Assistant Attorney General) for Presidents Ronald Reagan and George H.W. Bush. Former Dean of the law school at The Catholic University of America, Professor Kmiec was a member of the law faculty at the University of Notre Dame for nearly two decades.

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