Due Process and Empire’s Law: Hamdan v. Rumsfeld

The Left desperately needed some good news last summer, so it was ready to claim a major victory when the Supreme Court unexpectedly struck down the military tribunals at Guantánamo Bay. Commentators enthusiastically called Hamdan v. Rumsfeld a “stinging rebuke” to George W. Bush and “a clear affirmation of the rule of law.” After wading through the complicated legal issues, most news reports concluded that the Supreme Court had decided that the Bush tribunals were kangaroo courts that violated the Geneva Conventions.

If the military tribunals were struck down by the Court, then why did Bush send a bill to Congress a few months later asking it to authorize new tribunals with most of the same disturbing features? The reason is that the Supreme Court did not act on the basis of the Geneva Conventions. Instead, it relied on a much more obscure statutory basis, the Uniform Code of Military Justice. This law was passed by Congress in 1950 and outlined uniform procedures for all branches of the military to follow in conducting courts-martial. The UCMJ also authorized the use of military commissions to try prisoners of war and mandated that they follow procedures consistent with the laws of war. Since the Geneva Conventions are, in effect, a codification of the laws of war, the Supreme Court concluded that the UCMJ amounts to a congressional decision to apply the Geneva Conventions to situations like Guantánamo. But unlike the U.S. Constitution, which can only be amended through a lengthy supramajoritarian process, the UCMJ can be modified or abolished by a simple congressional majority. And that is just what the Republican-controlled Congress did.

The Military Commissions Act of 2006 was signed into law on October 17. This law amounts to a congressional authorization of existing practices at Guantánamo Bay. The timing was clearly intended to help embattled Republicans strengthen their electoral fortunes by portraying Democratic critics of the bill as weak on terrorism. Although the press framed the legislation as a compromise enacted to satisfy the objections of John McCain and other Senate Republicans, the White House conceded very little. The legislation was carefully crafted to modify a few of the most controversial practices, such as the use of evidence obtained through torture, while maintaining most of the features of the status quo. Moreover, the Military Commissions Act significantly strengthened the president’s position by giving him explicit congressional approval of his system of extraterritorial penal colonies.

The most astounding thing about the “compromise” legislation is not how little Bush conceded to his critics but how little they demanded. Hardly anyone considered whether it is really such a good idea to have the military serve as judge, jury, and prosecutor when deciding the fate of its own adversaries.

The whole concept of military commissions is based on the highly suspect not...