A
recent U.S. Supreme Court decision, barring President Bush from
trying some Guantanamo detainees in front of military commissions
for war crimes, does not affect long-term detention of Guantanamo
inmates, according to two lawyers with generally opposing views.
But
the high court's willingness to restrain Bush's actions in time
of war was a significant step in American legal history, said
Joseph Margulies, trial counsel for the MacArthur Justice Center,
and Eric A. Posner, professor at the University of Chicago Law
School.
''Did
the Supreme Court make a mistake?'' asked Posner rhetorically.
''It is unwise for the courts to second guess military decisions,''
he said.
The
discussion was sponsored by the Chicago Council of Lawyers on
Friday, and held at the offices of Mayer, Brown, Rowe & Maw.
Posner
said if court decisions limiting Bush's authority with regard
to Guantanamo inmates merely drive the executive branch to hold
detainees farther overseas, for example in Afghanistan or Thailand,
it would be ''a legal victory'' for the challengers ''but morally
empty.''
''Political
and moral questions should be resolved by elections and protests,
not by the courts,'' Posner said.
Margulies,
on the other hand, said he believed recent high court decisions
suggest if a new case is brought challenging executive branch
authority over foreign nationals held at Bagram detention center
in Afghanistan, ''the court would hold it has jurisdiction there,
too.''
The
Supreme Court's latest decision in Hamdan v. Rumsfeld, No. 05-184
on June 29 was ''far less important in its four corners than for
what it implies,'' Margulies said. ''It is fundamentally a separation
of powers case'' showing ''the role of the court in restraining
the executive in times of armed conflict.''
Posner
is the author of ''Terror in the Balance,'' a book to be published
by Oxford University Press in 2007, which warns against judicial
overreaching for the sake of civil liberties.
Margulies
was lead counsel for the petitioners in an earlier case that led
the U.S. Supreme Court to assert its authority over detention
of Guantanamo inmates. That case was Rasul v. Bush, No. 03-334,
decided in June 2004.
Margulies
is also author of a just-published book, ''Guantanamo and the
Abuse of Presidential Power.''
Posner
told the audience that the Bush administration has made two arguments
in defense of the president's authority to establish military
commissions to try enemy combatants.
One
argument is that the Constitution gives him that authority as
a commander in chief of the military.
The
second argument is that Congress's Authorization for Use of Military
Force against those responsible for the 9/11 attacks also gave
the president authority to detain enemy combatants and try them
before military commissions.
The
administration had also argued that Common Article 3 of the Geneva
Conventions, which says certain enemy combatants, when tried,
should be tried by a ''regularly constituted court,'' does not
apply to international armed conflicts, Posner said. This exception
is part of the wording of Article 3.
The
administration has argued that the conflict with al-Qaida is international,
Posner added.
But
the Supreme Court rejected the administration's argument that
this conflict is international.
Asking
rhetorically why the court ruled the way it did, Posner said,
''I suppose people don't think al-Qaida is as dangerous as it
used to be.''
The
high court did give the administration an option to have military
commissions authorized by Congress for the future trial of Guantanamo
detainees, Posner continued.
But
he said it was ''embarrassing'' for the Supreme Court to hold
that the United States was violating the Geneva Conventions.
Historically,
Posner said, courts ''defer to the president on the interpretation
of treaties.'' He added that the Bush administration's interpretation
of Common Article 3 of the Geneva Conventions had been a reasonable
one.
Margulies
told the audience that the Hamdan ruling means ''the conflict
with al-Qaida will be governed by Common Article 3'' of the Geneva
Conventions.
Margulies
said this article and the Supreme Court ruling establish a base
line for the treatment of all people captured in armed conflicts.
It
means ''everyone is entitled to a certain base line minimum in
humane treatment,'' he said.
Margulies
agreed with Posner that the Hamdan decision gives Congress the
option to pass a law that would give Bush authority to try Guantanamo
detainees by military commissions.
But
Margulies added that the Supreme Court ''used pretty strong language
on what constitutes a minimum acceptable court.''
Margulies
said he does not believe the high court would uphold any sort
of trial using ''evidence obtained by torture.''
And
by the court's declaration that Common Article 3 applies to Guantanamo
detainees, the detainees shall not be subject to ''cruel treatment
or torture or humiliating or degrading interrogations,'' Margulies
said.
He
said that just over a week ago, the administration intended to
comply with Common Article 3 in all detention facilities operated
by the U.S. Department of Defense, and the administration argued
that it had previously done so. But no mention was made of detainees
held by the Central Intelligence Agency, according to Margulies.
Finally,
Margulies said he did not believe the administration really cares
much about trying Guantanamo detainees before military commissions.
That
is because both Margulies and Posner agreed that the Supreme Court
has upheld the administration's right to detain enemy combatants.
In
Posner's view, the court has given the administration authority
to detain enemy combatants indefinitely.
According
to Margulies, ''Hamdan assumed you could hold people during hostilities
in Afghanistan.''
Copyright
© 2006, Law
Bulletin Publishing Company.