Will Hamdan Be Another Dred Scott?

Americans seldom worry about their Constitution.  It stands as the guarantee of their liberties.  It is quite often interpreted by the Supreme Court, but seldom amended by the States, a cumbrous process.

However, it seems likely that the Hamdan case may force Americans to think rather more about two fundamental principles of their Constitutional law.  It involves two basic principles, habeas corpus and “due process of law”.  It also involves all three branches of the Constitution, the President, the Congress and the Supreme Court.

Hamdan has been a prisoner in Guantanamo.  He would have been subject to the military tribunal, but his lawyers took his case to the U.S. Supreme Court, arguing that the tribunals, in their original form, contravened both U.S. and international law, and in particular the Geneva Convention.   This view was upheld by the Supreme Court in June, 2006.

The President said that he would comply with the Supreme Court ruling.  However, his method of complying was to push through the old Republican Congress the Military Commissions Act of 2006, only four months after the Hamdan decision.  It seems certain that this Act would not have been carried through the new Congress, which was elected, with Democrat majorities, in November.  The Supreme Court had ruled that the original tribunals were not “due process of law”, because they did not have Congressional approval.  The effect of the Military Commissions Act was to give Congressional authority to similar tribunals.  That met a major objection of the Supreme Court.

However, there remains the argument that the MCA, though recently passed by Congress, is itself in breach of the U.S. Constitution, in that it does not provide for habeas corpus or for due process.  The argument of Mr. Hamdan’s lawyers is that the MCA has sought to resurrect the military tribunals policy “without removing the flaws in it.”  In particular, the new tribunals, like the old, are in breach of the Geneva Convention.

Before the Civil War, the U.S. Constitution was primarily concerned with protecting the rights of U.S. citizens.  The post-war amendments to the Constitution were designed to protect the rights of the liberated slaves, and of all people, whether citizens or not, who were subject to U.S. jurisdiction.  There is, therefore, a strong case that the Guantanamo detainees are guaranteed rights of habeas corpus under the Constitution.  It is for the Supreme Court to decide whether MCA complies with the requirements of the Constitution, including the post Civil War amendments.  The Supreme Court is entitled to strike down the MCA, if it chooses to do so.

There is an important question of timing.  Hamdan itself, in its original form, went to the District Court, and proceeded through the Appeals Court to the Supreme Court, which then found against the President.  The further Hamdan case, against the military tribunals in their new form, has returned to the District Court, which has dismissed Mr. Hamdan’s case on the grounds that the provisions of MCA have stripped him, and all the other Guantanamo detainees, of any rights of access to a writ of habeas corpus.

The lawyers for Mr. Hamdan have asked for an expedited transfer of the case to the Supreme Court itself, bypassing the Court of Appeal.  This was not granted in the original case.  If, however, the Supreme Court decided this was a suitable case for transfer, that would not be an abnormal procedure.

Some observers feel that the right solution would be for Congress to repeal or amend MCA, in order to bring the law into line with the U.S. Constitution and the Geneva Convention.  That would potentially avoid a conflict between Congress and the Supreme Court.  Other observers feel that the Supreme Court itself will be reluctant to uphold MCA in the present political situation, and might become even more averse if the Democrats were to win the White House in November 2008.

William Rees-Mogg
for Markets and Money

William Rees-Mogg

Leading political editor William Rees-Mogg is former editor-in-chief for The Times and a member of the House of Lords. He has been credited with accurately forecasting glasnost and the fall of the Berlin Wall – as well as the 1987 crash. His political commentary appears in The Times every Monday. His financial insights can only be found in the Fleet Street Letter, the UK's longest-running investment newsletter.

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