Funmurphys: the Blog

Hamdan Vs. Rumsfeld Decision

The Supreme Court has ruled that the United States can't try al-Qaida prisoners with the planned special military tribunals because as constituted certain provisions of those tribunals conflict with the Uniform Code of Military Justice and with treaty provisions of the Geneva Convention.

You can read the full text of the decision here, along with commentary here.

What the decision doesn't mean is that the detainies are about to be released, nor does it mean that they can't be tried - they just can't be tried by the special military tribunals that were set up. As to what effect this has in the overall war on Terror, I guess that depends on how many people this effects. Are there many new prisoners transferred to Gitmo? Will instead they be kept in Iraq and Afganistan instead, and will this cause fewer prisoners to be taken as soldiers wonder "what's the point"?

So at this point the court ruling looks like we can hold these people as ordinary POWs until the end of the war -- which technically will never end since the odds of us ever signing a peace treaty with al-Qaeda are practically nil (from both sides, I might add). So we have the odd outcome that we can impose a sentance of life imprisonment without parole (the highest penalty in may countries) without any trial whatsoever, yet we can't impose any lesser penalty without going through courts neither designed nor equipped to handle their special cases.

Was the case wrongly decided? Well, that all depends, doesn't it. There are times, like these, when law and policy become so intermixed that it's hard to separate one from the other. So let's just examine what we want out of trials: The guilty punished, the innocent freed, both accomplished in the minimum time required. Would that have been accomplished with the special tribunals? Would Federal or Courts Martia do a better or worse job?

So what's the real problem with the ruling? Like all matters of the law, it doesn't take into account reality. The problem is, we are dealing with an enemy like no other in the sense that we are not fighting a war against another nation, another government. It has the organization of a crime syndicate with the aims of a government or national movement. We are fighting against a different kind of organization, but we are trying to apply the rules set up to fight old style enemies. Now I don't think we need to throw everything out the window and start over, because our aims haven't changed, just the circumstances. And so I think the special tribunals represented a good faith effort to deliver justice under new circumstances, circumstances that older courts probably will have a hard time with.

The problem is what standard of proof, what rules of evidence are we going to use. In war time, we empower young men to make snap decisions about life and death with oversight that takes into account the difficult nature of such decisions. We provide them with ROE - Rules of Engagement- that they are to be guided by in making such decisions. Those ROE vary depending on the exact circumstances of any deployment. The ROE that normal courts operate under never vary. And for good reason - which is why it's better to set up something new that can make a change to a new reality, than have existing courts try to deal with cases they are ill equipped to handle.