Political Consequences of Hamdan Decision Posted by Patrick Barry

A thoughtful take on yesterday's Hamdan decision by NSN intern Will Rosenzweig.  Dahlia Lithwick, eat your heart out.

Yesterday’s decision in Federal District Court by Judge James Robertson to deny a delay in the first of seemingly many military trials of enemy combatants at Guantanamo Bay went by with little fanfare from politicians and pundits.  Yet the consequences of the decision, although not monumental in ultimately deciding the fate of Guantanamo detainees, will ultimately play a prominent role in the political theatre of the fall campaign.  Judge Robertson did what judges often do; he allowed the process to play out before intervening.  In doing so he created the ingredients for a political explosion.

First, it’s important to understand what this decision does and does not do regarding the long legal journey the detainees and the justice department have been on.  The issue before Judge Robertson was whether to delay a military trial of Salim Hamdan that is scheduled to begin this coming Monday.  Hamdan, if you recall, already won a case in 2006 in the Supreme Court in which the court ruled that the Detainee Treatment Act of 2005 did not prevent him from filing a petition for habeas corpus, a motion for release on the grounds of unlawful imprisonment. Hamdan will now simultaneously challenge his detention in habeas proceedings following the recent Supreme Court decision in Boumediene v. Bush, which invalidated Section 7 of the MCA and extended habeas corpus rights to Guantanamo detainees.  The military is now ready to put Hamdan, and eventually 20 other detainees who have been formally charged, on trial according to other provisions of the MCA, even as they and as many as 60 others file for habeas relief in the federal court system.

Hamdan’s lawyers had a number of arguments for why the trial should be delayed but the central point was that the military commissions are likely unconstitutional and thus Hamdan should be allowed to challenge said commissions before being tried by them.  Judge Robertson acknowledged the potential problems in the military commission system, specifically pointing out how the commissions allow for hearsay testimony and evidence procured by coercion (i.e. torture).  Yet, he maintained that long-held doctrine dictated that the trial should go first followed by the constitutional challenge.

So, while Hamdan ostensibly “lost,” the decision really only means a greater delay before the Supreme Court resolves the outstanding issues.  As Judge Robertson concluded,
“If the Military Commission judge gets it wrong, his error may be corrected by the CMCR [Court of Military Commission Review]. If the CMCR gets it wrong, it may be corrected by the D.C. Circuit. And if the D.C. Circuit gets it wrong, the Supreme Court may grant a writ of certiorari.”

This quotation, as I suggested in the opening, does more than put in perspective the relative inconsequentiality of the decision for the detainees; it emphasizes the decision’s heightened importance for the remaining months of the presidential election.  Instead of being buried in appeal after appeal (a process that might have worked its way up the federal system a few more times before either being resolved in the detainees favor or allowing for the military commissions to proceed), the trials will take place, and they will begin well before November.  This will generate an intense amount of media attention and require statements, conference calls, and perhaps even debate questions from and for the candidates.  And when Hamdan’s trial ends, no matter the outcome, his case will still have life as it works its way up the long path Judge Robertson outlined. 

In short, what all this means is that there will be a tremendous amount of political theatre with no immediate resolution.  In the context of an election that is largely being weighed on Iraq, Iran, Afghanistan, and terrorism, these trials will lead to the Administration’s Guantanamo detention policies being a significant campaign issue.  So while it may have been merely procedural for the parties involved, today’s decision has major ramifications for the political world.

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