Congress Needs to Authorize Military Commissions Now

The Supreme Court decided Hamdan v. Rumsfeld less than a month ago, but it has already become one of the most misunderstood decisions in the court’s history. Why? The left has distorted it to score political points against the Bush Administration.

For example, the ACLU declared: “Now that the Supreme Court has issued its decision, the President should make good on his promise and close Guantanamo.” Never mind that nothing in Hamdan comes close to suggesting Guantanamo should be closed. That wasn’t the issue before the court. In fact, two years ago the court held that the detention of enemy combatants, including U.S. citizens, at Guantanamo was well within the President’s authority.

In a nutshell, the court held in Hamdan that the military commissions proposed to try Salim Hamdan and accused terrorists at Guantanamo were inconsistent with the Uniform Code of Military Justice (UCMJ)—which defines the procedures of courts martial in trying our own service men and women. The court held that the procedures used by the military commissions would have to be similar to those of the UCMJ, unless Congress said otherwise. Moreover, the court read the UCMJ as importing the requirements of “Common Article 3” of the Geneva Convention into the conflict with al Qaeda. So any military commissions would have to conform to Common Article 3.

The court also rejected the administration’s argument that the Authorization for the Use of Military Force (AUMF) that Congress passed after 9/11 provided the President with sufficient statutory authorization for the military commissions. The court said that the AUMF wasn’t specific enough.

Time to Act

In sum, Hamdan does not reject the use of military commissions. It simply disagreed with the administration’s view that Congress had already authorized them.

If the President wants to proceed with military commissions similar to the type proposed for the trial of Hamdan, he need only go back to Congress and seek more specific authorization. Indeed, in a concurring opinion, Justice Stephen Breyer invited the President to do so. “Nothing prevents the President from returning to Congress to seek the authority he believes necessary,” said Breyer.

The House Armed Services Committee and the Senate Judiciary Committee have already held hearings on the matter. The White House has indicated it wants Congress to act. The ball is now in Congress’ court.

Congress now needs to do two things, while specifically authorizing the military commissions: define the procedures to be used and give some meaning to the ambiguous words of Common Article 3.

In defining the procedures for the military commissions, Congress should start with the model proposed by the President and add whatever modifications it deems necessary. At every juncture, Congress should balance three basic objectives: 1) ensure that each enemy combatant receives a fundamentally fair trial, 2) determine correctly which enemy combatants are guilty of war crimes, and 3) protect the effectiveness of U.S. military and intelligence assets.

Satisfying those objectives demands greater flexibility than is found in the procedures of courts martial or civilian courts. For example, suppose a classified surveillance system was used to intercept communications between an accused enemy combatant and a known terrorist leader. Divulging such “sources and methods” is not in U.S. security interests. The procedures should not force the military to do so.

Similar flexibility is needed with hearsay rules and the use of self-incriminating statements. American soldiers cannot be expected to give Miranda-style warnings to captured enemy combatants on the battlefield.

The second objective is equally important. The Supreme Court held that Common Article 3 of the Geneva Conventions is incorporated by U.S. law and applies to military commissions in the present context. However, that article uses extremely vague language prohibiting, for example, “outrages upon personal dignity.” Congress can and should define what those terms mean for the U.S. military.

All of the political planets are in alignment to move a bill through Congress quickly. Conservatives want to provide the Executive Branch with what it needs to win the war on terrorism, and liberals complain Guantanamo detainees have been there too long. Voting to authorize the military commissions and specify their procedures will move the ball along. Congressional foot-dragging is in no one’s interest at this point.