The problem in the Hamdan case was that the tribunals set up to prosecute the defendants did not conform to the Uniform Code of Military Justice and Article 3 of the Geneva Conventions (which is a treaty the USA signed without reservation, and thus, pursuant to the Constitution is the law of the land.)
The most important way these tribunals go afoul of the above laws is that they give the DOD the power to try the defendants without the right to see their accusers, using documentary evidence which they are not allowed to see, which is allowed to be hearsay, or produced through torture.
Military tribunals that conform to the Uniform Code of Military Justice would be fine.
The adminstration doesn't want to conform to the Uniform Code of Military Justice, they want to use hearsay evidence and evidence obtained by torture, and they don't want the defendants to see it, and they don't want to produce it to the judge in person, they want him to read what they give him.
I can't believe I am correct when I state the above, but unfortunately, it's true.
Another serious problem with the government's case is that Hamdan was charged with conspiracy, a crime which doesn't violate the laws of war, and thus, can't be prosecuted by a military tribunal. If the law is amended to allow prosecution for conspiracy, it will be ex post facto.
I know it's hard for a non-lawyer to read legal opinions, but you would not have nearly as hard of a time with it if you simply skipped the first 35 pages, which are about jurisdiction, and start at page 36, which is about the facts of the case with respect to the fact that conspiracy can't be tried by a military tribunal.
The part of the case about the use of evidence begins at page 49 in this slip opinion.
supremecourtus.gov
The best way for a layman to read legal opinions is to skip what I call "the legal blah-blah woof-woof" which are the footnotes and the case citations. Just let your eyes glaze over when you see them, and go for the text.
Actually a lot of the good stuff for lawyers is in the footnotes but you're not a lawyer so that's ok, skip them.
The bits about coerced evidence and hearsay is at page 51.
At page 53, Stevens mentions the fact that Hamdan can be, and has been, excluded from his own trial, which is not at all OK. He has the right to be present.
A backgrounder begins at page 54, you can read about the Yamashita trial, the trial of Japanese Commanding General Yamashita after WWII, especially Rutledge's dissent, which is now considered to be the correct analysis.
The discussion of how these tribunals run afoul of the Geneva Conventions starts at page 62. That's very interesting -- and very broad. I'm going to need time to digest but lawbloggers are saying that the administration's policies in Guantanamo are in deep trouble.
Breyer's concurrence holds out a cookie for the administration but my guess is that the cookie is poisoned. Hard to tell with Breyer, he's a subtle SOB.
Kennedy's a lot more straighforward, and his concurrence is a lot more straightforward. In fact, to get a clear picture of where the Court's going in Hamdan, skip ahead to Kennedy's concurrance (at the bottom of the Adobe reader, go to page 83).
That's it in a nutshell.
If you don't like the holding, you can make yourself feel better by reading the dissents, especially Scalia, who always writes an exceptionally fine dissent. Such a temper! |
