Say Anything Blog

The Supreme Court's decision in Hamdan v. Rumsfeld, invalidating for now the use of military commissions to try al Qaeda and associated detainees, may be a setback for U.S. policy in the war on terror. But it is a setback with a sterling silver lining. All eight of the justices participating in this case agreed that military commissions are a legitimate part of the American legal tradition that can, in appropriate circumstances, be used to try and punish individuals captured in the war on terror. Moreover, nothing in the decision suggests that the detention facility at Guantanamo Bay must, or should, be closed.

Indeed, none of the justices questioned the government's right to detain Salim Ahmed Hamdan (once Osama bin Laden's driver), or other Guantanamo prisoners, while hostilities continue. Nor did any of them suggest that Mr. Hamdan, or any other Guantanamo detainee, must be treated as civilians and accorded a speedy trial in the civilian courts. Precisely because opponents of the Bush administration's detention policies have advanced these, or substantially similar claims, Hamdan has dealt them a decisive defeat. Together with the Supreme Court's 2004 decision in Hamdi v. Rumsfeld -- directly affirming the government's right to capture and detain, without criminal charge or trial, al Qaeda and allied operatives until hostilities are concluded -- Hamdan vindicates the basic legal architecture relied upon by the administration in prosecuting this war.

However, what Hamdan also means is that, if the administration wishes to pursue military- commission trials, the procedures -- including evidentiary rules -- to be followed by those bodies will have to be revised so as to conform to the procedures applicable in ordinary courts-martial under the Uniform Code of Military Justice (UCMJ) -- or additional legislation must be obtained from Congress. . . .

the president could seek additional action by Congress. Indeed, Justices Kennedy, Breyer, Souter and Ginsburg, all critical votes for the majority in this case, effectively invited him to do precisely this. Justice Kennedy noted that "ecause Congress has prescribed these limits, Congress can change them." Similarly, Justice Breyer -- responding to the entirely reasonable observation of dissenting Justices Scalia, Thomas and Alito that the majority's decision interferes with the president's ability to protect the U.S. from a "new and deadly enemy" -- noted that "[n]othing prevents the President from returning to Congress to seek the authority he believes necessary." The administration's answer should be, "OK, fine."