The tribunal set up to try Hamdan was created by an executive order issued in November 2001. Its rules are draconian. They permit defendants to be tried and convicted on the basis of evidence that neither they nor their chosen civilian lawyers have any chance to see or rebut. They allow the use of hearsay evidence, which similarly deprives the defendant of an opportunity to cross-examine his accuser. They exclude information obtained by torture, but permit testimony coerced by any means short of torture. They deny the defendant the right to be present at all phases of his own trial. They empower the secretary of defense or his subordinate to intervene in the trial and decide central issues in the case instead of the presiding judge. And finally, the rules are predicated on a double standard, since these procedures apply only to foreign nationals accused of acts of terrorism, not U.S. citizens.
Hamdan's lawyers challenged the legality of the military tribunals in federal court before his trial had even begun, arguing that the President lacked authority to create the tribunals in the first place, and that the tribunals' structure and procedures violated the Constitution, U.S. military law, and the Geneva Conventions.
To say that Hamdan faced an uphill battle is a gross understatement. The Supreme Court has said in the past that foreign nationals who are outside U.S. borders, like Hamdan, lack any constitutional protections. Hamdan was a member of the enemy forces when he was captured, and courts are especially reluctant to interfere with the military's treatment of "enemy aliens" in wartime. He filed his suit before trial, and courts generally prefer to wait until a trial is completed before assessing its legality. And as recently as World War II, the Supreme Court upheld the use of military tribunals, and ruled that the Geneva Conventions are not enforceable by individuals in U.S. courts but may be enforced only through diplomatic means.
Surprisingly, Hamdan prevailed in the district court, when U.S. District Judge James Robertson courageously ruled that trying Hamdan in a military tribunal of the kind set up by the government would violate the Geneva Conventions. Not surprisingly, that decision was unanimously reversed, on every conceivable ground, by the Court of Appeals for the D.C. Circuit, in an opinion joined fully by then Judge, now Chief Justice, John Roberts. And as if Hamdan did not face enough hurdles, after the Supreme Court agreed to hear his case, Congress passed a law that appeared to be designed to strip the Supreme Court of its jurisdiction to hear the case. The Detainee Treatment Act of 2005 required defendants in military tribunals to undergo their trials before seeking judicial review, and prescribed the D.C. Circuit as the exclusive forum for such review.
In its arguments to the Supreme Court, the administration invoked the Bush doctrine. It argued that the President has "inherent authority to convene military commissions to try and punish captured enemy combatants in wartime," even without congressional authorization, and that therefore the Court should be extremely hesitant to find that Bush's actions violated the law. And it insisted that in declaring that the Geneva Conventions did not apply to al-Qaeda Bush had exercised his constitutional war powers, and his decision was therefore "binding on the courts."
The Supreme Court, by a vote of 53, rejected the President's contentions. (Chief Justice Roberts did not participate, since it was his own decision that was under review.) The Court's principal opinion was written by its senior justice, John Paul Stevens, a World War II veteran, and the only justice who has served in the military. He was joined in full by Justices Ginsburg, Souter, and Breyer, and in the main by Justice Kennedy. Kennedy also wrote a separate concurring opinion, and because he provided the crucial fifth vote, his views may prove more significant in the long run.
The Court found, first, that the administration's procedures for military tribunals deviated significantly from the court-martial procedures used to try members of our own armed forces, and that the Uniform Code of Military Justice barred such deviations unless it could be shown that court-martial procedures would be "impracticable." The administration made no such showing, the Court observed, and therefore the tribunals violated the limit set by Congress in the Uniform Code. The Court could well have stopped there. This conclusion was a fully sufficient rationale to rule for Hamdan and invalidate the tribunals. Had it done so, the decision would have been far less consequential, since Congress could easily have changed its law or declared that court-martial procedures are impracticable.