The U.S. Supreme Court is expected to issue a decision soon in the case of Hamdan v. Rumsfeld.
Salim Ahmed Hamdan was picked up in Afghanistan in late 2001 and has been detained at Guantánamo Bay since 2002. He is challenging the lawfulness of the U.S. government trying him for alleged war crimes before a military commission under a presidential order, rather than before a court-martial convened under the U.S. code of military justice.
What is Hamdan really about?
The main question in Hamdan is whether the military commissions established by President George W. Bush in November 2001 to try non-U.S. citizens implicated in acts of terrorism against the United States are lawful. To date only 10 individuals detained at Guantánamo Bay have been charged with crimes to be tried by the military commissions. The justices were asked to consider the question in a variety of ways: whether the president had the authority to establish these military commissions; whether authorization by Congress was needed, and if so did Congress authorize them; and whether the commission procedures themselves are lawful.
The Supreme Court was also asked to decide whether the military commissions violate the 1949 Geneva Conventions, which require that each individual captured on a battlefield be treated as a prisoner of war unless and until a “competent tribunal” determines that he or she is a civilian. This is important because under the Geneva Conventions, an individual’s status as a prisoner of war or a civilian determines both rights and responsibilities. Civilians who take up arms can be tried for doing so, and both civilians and prisoners of war can be tried for war crimes such as committing perfidious attacks (including fighting while posed as a civilian or while feigning surrender), or deliberately targeting civilians. Everyone captured in an international armed conflict is either a prisoner of war or a civilian.
Individuals considered to be prisoners of war must be tried using the same procedures and courts applicable to U.S. military personnel – courts-martial or civilian courts, but not military commissions. But no “competent tribunal” has been convened for persons detained at Guantánamo to rule them ineligible for prisoner-of-war status; instead, the Bush administration made a blanket determination that no one held at Guantánamo is a prisoner of war. The court must decide whether that blanket determination is sufficient to deny the detainees the procedural rights to which they otherwise would be entitled.
But even before reaching this question, the Supreme Court must consider the effect of the Detainee Treatment Act, which was enacted in December 2005. The act includes a provision, known as the “Graham-Levin amendment,” that precludes detainees at Guantanámo Bay from bringing any legal challenge to their ongoing detention or conditions of confinement. The administration has taken the position that the Graham-Levin amendment also bars cases that were already in the courts, which would oblige the Supreme Court to dismiss Hamdan.
How many detainees have been charged by military commissions?
Only 10 of the approximately 460 detainees now held at Guantánamo have been charged before military commissions. Administration officials have said in the past that they expect up to 70 to 80 detainees to be charged, and that 134 are slated for transfer or release to another country. The rest would apparently continue to be detained at Guantánamo indefinitely.
What is the Supreme Court likely to decide?
The Supreme Court could decide that the military commissions set up at Guantánamo were not lawfully established, that their rules violate the law, or that the commissions are inappropriate for this set of detainees. In those circumstances, the court could order the commissions stopped or their rules modified. On the other hand, the court could allow the military commissions to proceed as established under the current rules.
Human Rights Watch does not take a position on the legality of the military commissions under U.S. law, but has long expressed serious concern that, even if the military commissions can be used in principle for the Guantánamo detainees, their structure and rules violate international legal standards for a fair trial. The commissions as set up now do not meet international standards for fair trials because their rules provide:
• Restrictions on the ability of defense counsel – both military and civilian lawyers – to mount an effective defense of their clients. These include infringement of the confidentiality of attorney-client communications, and restrictions on access to evidence and proceedings by civilian defense counsel and defendants.
•Few safeguards to prevent the use of evidence gathered through torture, and no bar to the use of evidence acquired by abusive interrogations that fall short of torture but nonetheless violate the prohibitions against cruel, inhuman or degrading treatment. For more information see Human Rights Watch Backgrounder: Questions & Answers on Military Instruction Number 10: Will It Keep Evidence Obtained through Torture or Cruel Treatment out of Commission Trials?
•Second-class justice for non-citizens: the military commissions are authorized to try only non-U.S. citizens.
•Improper use of military courts to try persons who had no connection to armed conflict as understood under international humanitarian law and who are accused of acts committed far from any actual battlefield. Using military courts to try such persons violates their right to trial by an independent and impartial court.
•No independent judicial oversight for some detainees and limited review for others, as described below.
The Supreme Court might not even consider these questions if it decides it does not have jurisdiction to review the military commissions because of the Graham-Levin amendment mentioned above. If the Court decides that the Graham-Levin amendment applies, then Hamdan will have to wait until after he is convicted by a military commission to re-file a claim in federal court under the limited review allowed by the Graham-Levin amendment. At that point, therefore, he would be allowed to raise only two very limited questions: whether the military commission followed its own rules, and whether those rules comported with U.S. law and the Constitution. The federal courts would not be able to test the factual basis for a conviction, even if the detainee was facing the death penalty as a result of the conviction. Moreover, Hamdan would not even have an automatic right of appeal if sentenced to less than 10 years.
If the Supreme Court says the commissions are not lawful, does that mean detainees cannot be tried for crimes?
No. Whatever the Supreme Court decision, the U.S. government could bring Guantánamo detainees to trial in U.S. courts-martial or in federal civilian courts. Human Rights Watch believes that anyone implicated in war crimes, acts of terrorism or other crimes in violation of international law should be brought to justice. Those with prisoner-of-war status could be tried before a court-martial or a federal court. Others apprehended during an armed conflict could be tried by courts that meet international fair trial standards. Persons charged with offenses committed outside the context of an armed conflict could be tried in U.S. federal courts or other courts that meet fair trial standards.
If the court decides that the military commissions are not lawful, will Guantánamo be closed?
No. The decision will not say one way or the other whether Guantánamo needs to be closed. The opinion is limited to the legality of the military commissions.
Human Rights Watch has called for the closure of Guantánamo and other U.S. detention facilities (“secret prisons”) that detain persons arbitrarily and indefinitely in violation of international human rights and humanitarian law. Those unlawfully detained should be prosecuted in accordance with international fair trial standards or released. No detainees transferred for prosecution elsewhere or released should be sent to a country where they are at risk of torture or other mistreatment.