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Cutting Through the Hyperbole on Hamdan

By Dennis Byrne

With all the confusion, rushed judgments and overheated rhetoric created by the U.S. Supreme Court's Hamdan complex decision, it's perhaps best to first look at what it does not do.

It does not:

• Satisfy the supposed demands of "world opinion:" the closing of the Guantanamo Bay camp and the immediate release of its detainees.

• Free Salim Ahmed Hamdan, the acknowledged driver and bodyguard for Osama bin Laden.

• Exclude Hamdan from a court martial or, if Congress decides, trail by a military tribunal.

• Say that Hamdan or any others cannot be held "for the duration of active hostilities."

• Require that he, or other detainees, be tried before a civilian court, as some anti-war activists had demanded.

• Prohibit the United States from detaining future enemy combatants.

Truth is, Hamdan remains ours, and the Bush administration and Congress still have plenty of ways to ladle out justice to him and other enemy combatants. Despite the hysteria of both sides, the war on terror continues as before.

Truth is, the decision is a landmark case in the everlasting battle over the separation of powers, and it is certainly a rhetorical victory for Bush-haters and ostrich-like war opponents who believe we can end this one by simply undeclaring war. Truth is Hamdan won a moral victory, in that he wanted to be tried in federal court or by a military court martial so he would have more of the rights enjoyed by Americans. He may not get his wish; the ruling is close enough to make rhetorical use of it. The court also ruled against the administration's argument that the provisions of the Geneva Conventions did not apply.

But, as Justice Anthony Kennedy noted in his concurring opinion, the problems can be fixed. "In sum, as presently structured, Hamdan's military commission exceeds the bounds Congress has placed on the president's authority [under law and the Uniform Code of Military Justice prescribing court martial procedures]. Congress can change them...."

In truth, a lot of the decision's reasoning was based on what Congress did not do, say or mean, rather than what it did do, say or mean. In the absence of clear intent, the high court said it can and would make its own interpretations. In effect, the court said if we're wrong, go ahead and change the law. For example, the court said, as stated in the case's syllabus, that the Hamdan military commission "is not expressly authorized by any congressional act." So, go ahead and authorized it. But, under our rules, of course.

Not that the administration was, as its critics say, making law up as it went along. The administration had plenty of legal precedent and law on its side, and the nation's second highest court--the Washington D.C. appeals court--agreed with the administration. For example, the appeals court, in a decision in which Chief Justice John Roberts participated, pointed out that in another case, Ex parte Quirin, the Supreme Court itself held that Congress had authorized such military commissions through Article 15 of the Articles of War. Particularly relevant was the court's ruling that court-martial jurisdiction does not "deprive military commissions...of concurrent jurisdiction" in such matters.

Hamdan lawyers argued, in part, that the Articles of War didn't apply because Congress did not formally declare war. To which the appeals court replied that Congress had gone as far toward a declaration of war, or further, than it had gone in the Civil War, the Philippine Insurrection, the Boxer Rebellion, the Punitive Expedition against Pancho Villa, the Korean War, the Vietnam War, the invasion of Panama, the Gulf War and "numerous other conflicts."

The appeals court also concluded that Hamdan did not fit the Geneva Convention's Article 4 definition of a prisoner of war, entitled to all the convention's protections. "He does not purport to be a member of a group of who displayed 'a fixed distinctive sign recognizable at a distance' and who conducted 'their operations in accordance with the law and customs of war.'' That's pretty hard to disagree with, but the Supreme Court managed, in some particularly contorted logic, to find a way. Basically and oversimplified, it came down to concluding that the war against terror was not "a conflict of international character." You've got to read the decision yourself to come anywhere closing to fathoming the logic.

There is more puzzling stuff like this throughout the plurality opinion, and it is clear that reasonable people could come down on either side of the issue, and still be dedicated to the rule of law.

This brings me to a final thing that this decision does not do. You'll hear partisans say that it demonstrates that however arbitrary and cavalier the Bush administration regards human rights, the United States still is committed to the rule of law. Michael Ratner, president of the Center for Constitutional Rights in New York, which represents more than 200 Guantanamo inmates, said "What this says to the administration is that you can no longer decide arbitrarily what you want to do with people. It upheld the rule of law in this country and determined that the executive has gone beyond the constitution and international law."


If you read the decision together with the appeals court opinion, the conclusion is inescapable: The Bush administration followed the rule of law, as it saw it laid out in statute and case law. A divided Supreme Court (5-4, if you include Roberts' earlier decision on the appellate court), saw the law differently. To say that the Bush administration was flouting the law is a slander that only the ignorant or the dishonest would commit.

Dennis Byrne is a Chicago Tribune op-ed columnist and freelance writer. Email:

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