Salim Ahmed Ham­dan. Source: New York Times.

Two cases related to the Guan­tanamo Bay detainees and their treat­ment are mak­ing their way through the court sys­tem now and may be reviewed by the Supreme Court soon.

The first, Jose Padilla v. John Yoo, was the sub­ject of Michael’s arti­cle this morning.

The sec­ond case is being heard (or maybe not, see below) by the D.C. Cir­cuit Court and may well move to the Supreme Court next term.

Salim Ahmed Ham­dan is a Yemeni national who, intel­li­gence offi­cials say, served as a dri­ver for Osama bin Laden. He was detained by Afghan forces in Novem­ber 2001 and held with other sus­pected ter­ror­ists at Guan­tanamo Bay.

In 2006, his case (Ham­dan v. Rums­feld) was heard by the Supreme Court, which ruled that the sys­tem of mil­i­tary tri­bunals cre­ated by Con­gress was uncon­sti­tu­tional because it did not prop­erly fol­low the Geneva Con­ven­tion. The present case is unre­lated to the first; the only com­mon fea­ture is that it fea­tures the same petitioner.

The Court found that the mil­i­tary tri­bunal scheme must be bound by Com­mon Arti­cle 3 of the Geneva Con­ven­tion of 1948.

In the case of armed con­flict not of an inter­na­tional char­ac­ter occur­ring in the ter­ri­tory of one of the High Con­tract­ing Par­ties, each Party to the con­flict shall be bound to apply, as a min­i­mum, the fol­low­ing provisions:

(1) Per­sons tak­ing no active part in the hos­til­i­ties, includ­ing mem­bers of armed forces who have laid down their arms and those placed ‘hors de com­bat’ by sick­ness, wounds, deten­tion, or any other cause, shall in all cir­cum­stances be treated humanely, with­out any adverse dis­tinc­tion founded on race, colour, reli­gion or faith, sex, birth or wealth, or any other sim­i­lar criteria.

To this end, the fol­low­ing acts are and shall remain pro­hib­ited at any time and in any place what­so­ever with respect to the above-​​mentioned persons:

(a) vio­lence to life and per­son, in par­tic­u­lar mur­der of all kinds, muti­la­tion, cruel treat­ment and torture;

(b) tak­ing of hostages;

(c) out­rages upon per­sonal dig­nity, in par­tic­u­lar humil­i­at­ing and degrad­ing treatment;

(d) the pass­ing of sen­tences and the car­ry­ing out of exe­cu­tions with­out pre­vi­ous judg­ment pro­nounced by a reg­u­larly con­sti­tuted court afford­ing all the judi­cial guar­an­tees which are rec­og­nized as indis­pens­able by civ­i­lized peoples.

The sys­tem in use before 2006 failed these tests. In response, in the wan­ing days of the 109th Con­gress, the Mil­i­tary Com­mis­sions Act of 2006 was passed and signed by Pres­i­dent Bush. The Act removes habeas cor­pus pro­tec­tion from unlaw­ful com­bat­ant detainees. That is, the gov­ern­ment is not required to show cause for the sus­pected terrorist’s detention.

On August 6, 2008, Ham­dan was the first Guan­tanamo detainee con­victed under the new law by a mil­i­tary com­mis­sion. He was found guilty of offer­ing mate­r­ial sup­port to ter­ror­ists and was sen­tenced to 66 months, with credit for the 61 months already served at that point. He then remained at Guan­tanamo for four months, and served the last month of his sen­tence in Yemen. He is now in Yemen, as far as we know.

His lawyers have brought forth the cur­rent case, Ham­dan v. United States. The three points made by his attor­neys are as follows:

  1. The mil­i­tary com­mis­sion sys­tem set up by Con­gress in 2006 only allows pros­e­cu­tion of non-​​citizens, and there­fore vio­lates the Fifth Amend­ment. (“No per­son shall be held to answer for a cap­i­tal, or oth­er­wise infa­mous crime, unless on a pre­sent­ment or indict­ment of a grand jury, except in cases aris­ing in the land or naval forces, or in the mili­tia, when in actual ser­vice in time of war or pub­lic dan­ger.”) This would over­turn all mil­i­tary com­mis­sion find­ings so far, and unless Con­gress sets up an iden­ti­cal scheme cov­er­ing cit­i­zens con­victed of the same crimes, no fur­ther tri­als could be held.
  2. Mil­i­tary com­mis­sions should be sub­ject to con­ven­tional civil­ian “due process” claims by attorneys.
  3. “Mate­r­ial sup­port for ter­ror­ism” is not a war crime, and the 2006 Act only allows mil­i­tary com­mis­sions to make rul­ing regard­ing acts of war.

All three aspects of this argu­ment were struck down at the first level of review in June by the U.S. Court of Mil­i­tary Com­mis­sion Review. The case is being heard Thurs­day by the D.C. Cir­cuit Court, and may be heard by the Supreme Court at a future date.

The three-​​judge D.C. Cir­cuit panel has indi­cated that they will hear argu­ments that the entire case is moot, because Ham­dan is no longer a detainee.

In any case, this is likely not the last word we’ll hear on the com­mis­sions set up to try Guan­tanamo detainees.

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