'Daddy beat the evil man'

The U.S. Supreme Court in Hamdan v. Rumsfeld (June 2006) has decided that the kangaroo court President Bush has created to deal with suspected terrorists is not even fit for Yemeni national Salim Ahmed Hamdan, Osama bin laden’s driver and bodyguard. Whereas Georgetown law professor Neal Katyal, the 34-year old lawyer of Indian descent who won the case for the enemy prisoner at Guantanamo Bay, Cuba was unabashed in his triumph. When interviewed by CNN on how he was going to celebrate the outcome of his first Supreme Court case, Professor Katyal confided calling his four year old son to tell him how “Daddy beat the evil man.”

The 5-to-3 decision did not exactly call the military commissions President established in November 2001, following the “global war on terrorism” he declared after the 9/11 attacks, a kangaroo court, or Bush an evil man. But the Court’s majority did say “the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ [Uniform Code of Military Justice] and the Geneva Conventions.”

Courts-martial proceedings pursuant to UCMJ would have been a workable compromise between individual liberties and national security concerns, and in compliance with the key tenets of Common Article 3 of the Geneva Conventions among others things proscribing “outrages upon personal dignity, in particular humiliating and degrading treatment” and providing, as the Court so found, that, in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting "[p]ersons ... placed hors de combat by ... detention,” including a prohibition on “the passing of sentences ... without previous judgment ... by a regularly constituted court affording all the judicial guarantees ... recognized as indispensable by civilized peoples.”

The military commissions created by President Bush via a “military order” are thus worse than Marcosian: the commissions had the power to convict based on evidence the accused would never see or hear, or any evidence that, in the presiding officer’s opinion, would have probative value whether or not the evidence comport with cardinal evidentiary requirements of relevance or admissibility (in which case, a confession obtained through torture could possibly be a basis for conviction). However, unlike the Philippine dictator who had invoked sweeping powers under a declared martial law to create military commissions, President Bush relied on his inherent powers as commander in chief and on Congress’ Joint Resolution authorizing him to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided” the 9/11 terrorist attacks. Ruling against Bush, the Court said “there’s nothing in the text or legislative history of even hinting that . . .”

In a strident dissent, Justice Clarence Thomas wrote that “we are not engaged in a traditional battle with a nation-state, but with world-wide, hydra-headed enemy, who lurks in the shadows conspiring to produce the atrocities of Sept. 11.”

The holding in Hamdan is the second time in two years the High Court has rebuked the Bush administration in the treatment of enemy prisoners. In Hamdi v. Rumsfeld (2004) the now-retired Justice Sandra Day O’Connor, who spoke for the Court in denying the administration’s position that the detainees have no rights recognizable by federal courts, said “a state of war is not a blank check for the president.” The Court thus reversed the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an unlawful combatant, by deciding that detainees who are U.S. citizens may challenge their detention before a neutral decisionmaker.

Hamdan and Hamdi may have dealt with devastating blows some of the methods by which the Bush administration has carried out America’s war against global terrorism. But unlike the “Supreme Cowards” in the Philippine who had indulged the abuses of Marcos in the strongman’s so-called war against communism and Muslim secession in southern Philippines thereby compromising Philippine constitutionalism, the audacity of the United States Supreme Court ruling against a “wartime president” while the so-styled war on terror is in progress serves as an extended metaphor for the triumph of Americanism. It comes at a propitious and critical time of growing worldwide uproar against U.S. treatment of enemy prisoners and the conduct of American forces in Iraq.

As Osama bin Laden’s guys win their cases before the U.S. courts, the evil of Binladenism loses.