It does not appear that Hamdan will win the case.
Note:
http://www.aie.org/events/eventID.1280,filter.all
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Military Tribunals on Trial: Hamdan v. Rumsfeld
On March 28, the Supreme Court took up the case of Hamdan v. Rumsfeld to determine the permissibility of the Bush administration's plan to use military tribunals to try senior al Qaeda leaders. In 2004, D.C. Court judge James Robertson ruled that the proposed military tribunals violated international law, a decision subsequently overturned in 2005 by the Court of Appeals for the D.C. Circuit. What are the legal issues being contested in the case? How is the Supreme Court likely to rule? Are the military tribunals of enemy combatants consistent with U.S. obligations under the Geneva Conventions? What will the implications of the ruling be for the Bush administration's legal theory of the global war on terror? Bradford Berenson and Daniel Collins, who filed a brief with the Supreme Court on behalf of Citizens for the Common Defense, met to discuss these issues at a March 23 AEI panel discussion.
Bradford Berenson
Sidley Austin LLP
On November 13, 2001, President Bush issued a military order authorizing military tribunals to try war criminals associated with al Qaeda. Mr. Berenson worked at the White House as associate counsel at the time so was able to share firsthand knowledge about the process and policy considerations.
The genesis of the order was the attacks of September 11, 2001. It became clear that the United States would take custody of al Qaeda soldiers and needed a way to handle them. The policy needed to be decided with urgency, as the United States was already at war with al Qaeda. The White House found an answer rooted in the laws of war for unlawful combatants: war crimes charges could be brought through military tribunals.
Mr. Berenson argued that there were several important advantages that military tribunals hold over civil trials. First, that military tribunals ensure the physical security of the courtroom and the safety of the judges and jurors. Second, military tribunals can be faster and more efficient than civil trials and can be located outside of the United States if necessary. Third, military tribunals are much more apt in handling and protecting classified information that inevitably arises in war trials. Finally, and most importantly, military tribunals have more flexible rules with regard to evidence, allowing heresy and testimony acquired by coercion. The White House concluded that the option to try unlawful combatants by military tribunal was an important tool for the president to have in the war on terror. At the time, Mr. Berenson and the White House counsel anticipated that the decision would eventually be considered by the Supreme Court.
Mr. Berenson felt optimistic that the government would prevail in the Hamdan case.
Daniel Collins
Munger, Tolles & Olson LLP
Salim Ahmed Hamdan was Osama bin Ladin's personal driver, even after the attacks of September 11, 2001. Mr. Collins argues that this makes Mr. Hamdan an ideal candidate for trial by military tribunal. The Supreme Court case on March 28, 2006, considers whether the president had the Constitutional power to issue an order establishing military tribunals in general, to issue such an order in this particular conflict, and to order a tribunal for Mr. Hamdan. Mr. Collins argued that the president did not need Congressional approval for his November 13 order. There is precedence in the United States for such presidential power: in 1780, the traitor Benedict Arnold was brought by President George Washington in front of a "board of general officers" for his war crimes. Such tribunals were widely used during the Civil War, the Spanish American War, and most famously, during World War II for the eight Nazi dissidents who plotted an attack on American soil.
Mr. Hamdan argues that his crime of conspiracy is not eligible to be tried by military tribunal. Further, he claims that the United States' tribunal procedures are not valid. He also argues that the protections of the Geneva Convention should be applied or that Mr. Hamdan should not be held liable by its rules for combat. Finally, he claims status as a prisoner of war; such prisoners cannot be tried by military tribunal. Mr. Collins rejects most of these claims, siding with the government's arguments that it has the precedent and presidential power to establish such tribunals and that Mr. Hamdan's crimes qualify him to be tried. Mr. Collins and Mr. Berenson jointly filed an amicus brief in Hamdan v. Rumsfeld in which they outline the history of presidential use of military tribunals, hoping to establish precedent for the Court to support President Bush's actions.
In the Hamdan case, the Supreme Court faces a wide variety of issues. Mr. Collins thought it likely that the justices would side with the government, possibly for reasons of jurisdiction.
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Both Bradford Berenson and Daniel Collins, highly trained attornies, agree that the government's side will prevail and that the US will be allowed to use military tribunals in cases such as Hamdan's.
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