In the Media

Ted Lapkin  

3 July 2006 – Australian Financial Review  

The US Supreme Court has not entirely repudiated the principles of Guantanamo

You could almost hear the popping of champagne corks in those upscale urban precincts where contempt for America is an article of faith. At first glance, the Bush administration seems to have received its judicial comeuppance from the Supreme Court of the United States.

In the most important decision of its 2005-06 term, SCOTUS – as the court is known in “Washington-speak” – invalidated the military commissions intended for Guantanamo detainees. But before David Hicks partisans break out the bubbly, they should realise the ruling in Hamdan v Rumsfeld could validate the axiom: “be careful what you ask for, you might get it”.

It was one of those fractured judgements that are marked by numerous concurrent opinions rather than a unanimous majority. And in many ways the Hamdan ruling is equally notable for what it does not say than for what it does.

The court struck down the Bush administration’s military commission system, in part, because those tribunals were deemed to have breached the Geneva Conventions. The controlling opinion determined that the conventions provided “minimal protection falling short of full protection”, even to terrorists who violated the laws of war.

But while declaring that only a “regularly constituted court” may try illegal combatants, the court failed to stipulate any minimum procedural standards for such a trial. The murkiness of the judgement on this point is a virtual guarantee of future litigation.

And while this was a bad day for those of us who support toughness towards terrorism, all was not completely lost.

SCOTUS formally accepted the contention that the September 11, 2001 attacks triggered a state of armed conflict in which military action is the dominant paradigm. No longer can it be argued that the fight against jihadist terrorism is just another problem of civilian law enforcement.

Equally momentous was the court’s unqualified recognition of the US government’s right to detain al-Qaeda and Taliban fighters “for the duration of active hostilities”. In the controlling opinion of the case, judge John Paul Stevens agreed that the release of such men could “cause great harm and even death to innocent civilians”.

And for that reason the nuts-and-bolts limitations of the Hamdan ruling only come into effect when detainees are subjected to legal prosecution for war crimes. SCOTUS deliberately left an opening for Washington to sidestep the judicial process entirely by simply incarcerating Guantanamo detainees until such time that it determines the war to be over.

The court also found that the military tribunals were not expressly authorised by statute, and voted to void them on those grounds as well. But the controlling opinion formally endorsed the power of Congress to enact such authorisation if it wished.

Thus the US Supreme Court decision in Hamdan should not be seen as an unalloyed victory for David Hicks, as is revealed in one of the footnotes of the controlling opinion.

Footnote 32 explains that the crime of “aiding the enemy” can only apply to a person who “owes allegiance to the party whose enemy he is alleged to have aided”. As a Yemeni national, Salim Ahmad Hamdan owed no loyalty to the United States or its allies in the war against al-Qaeda. But the footnote then proceeds to point out this charge is entirely relevant to the case of Australian David Hicks.

It is worth remembering that Hicks was a professional Islamic holy warrior who fought for two jihadist movements that spurn every tenet of civilised warfare. And he was captured in an active combat theatre while bearing arms.

The Bush administration rightly believes it must be tough on today’s war criminals to dissuade those of tomorrow.

While SCOTUS has blunted the sharp edge of American deterrence, the White House has indicated it is studying the possibility of reconstituting military commissions in compliance with the Supreme Court decision.

When all is said and done, the US still retains a powerful legal weapon against jihadist terror. Guantanamo will not be closing any time soon.

Ted Lapkin is director of policy analysis for the Australia/Israel and Jewish Affairs Council.