Thursday, a three judge panel of the D.C. Circuit Court heard oral arguments in Hamdan v. Rumsfeld, a challenge to the first military tribunal convened by our national government since the WWII-era. I have helped Hamdan’s co-counsel, Professor Neal Katyal, in this case since August. In this article, I will only try to explain why a “federalist” or “conservative” should care that Mr. Hamdan, a driver for Osama Bin Laden and an alleged terrorist, is being tried in a military commission whose rules, procedure and composition are all created under the complete and total discretion of one man- the President of the United States.
I start from first principles. Since all men are naturally equal and free, no man may have his liberty taken from him by another without proper justification. As a result, the central tenant of a just regime that claims the moral authority to take an accused's liberty is the correct differentiation between the guilty and the innocent. That is, people can argue about what should or should not be a crime- but a regime that ultimately makes a determination of this threshold inquiry must provide adequate process to anyone, citizen or not, that it subjects to its legal adjudicative force. Mr. Hamdan has been accused of conspiring to commit terrible crimes- whether those conspiracy charges even state a recognizable charge under the current laws is a tricky issue- but even assuming those charges are valid, the onus is on the authority that purports to have the right to brand him guilty. That authority must prove that its adjudicative process is transparent and fair, and that he has really done what they accuse him of.
The obvious follow-up question is what does “proper process” entail? The customary/legal argument encompasses certain traditionally protected and statutory rights that accused generally enjoy. One such notable right is the right to be present- something that was denied to Mr. Hamdan already, and will be denied again if the D.C. Circuit rules against him. I think the moral requirements are more messy than these formalistic traditional procedures, but also more expansive. That is, when a person is accused of committing a crime, he must have a fair, independent decision-maker determine whether he is guilty or innocent based on transparent procedures that are set up to get the factual issue correct. I do not think many of the President’s supporters disagree with the previous statement, in theory. Yet, if one were to take the government’s arguments on their face, the president could label any person (at least any non-citizen) as an enemy combatant, draw up novel charges against him, appoint his commissioners, lay out the procedures and have final review authority over the execution. I do not think this comes even close to meeting the threshold for determining guilt or innocence.
The decision of the Circuit Court will address more than these rather uncontroversial moral dictates. There are issues about whether this challenge to the tribunal is timely, what level of protections the Universal Code of Military Justice offers, and what rights a person who has been designated “Al Qaeda” but claims to be a civilian has under the Geneva Conventions. Yet, the principle that is being vindicated is not nearly as complicated- the regular, proper and just differentiation between the guilty and innocent is the ultimate hallmark of how just our regime is.
As to why a “federalist” should care, I will close with a quote from one of the greatest federalists (a quote the co-counsel I worked for liked to use), Chief Justice John Marshall: “[The] government of the United States has been emphatically termed a government of laws, and not of men.” A system of determining guilt and innocent based on a law written by one man, prosecuted by that man’s authority, and decided by that same authority is not a “government of laws.” Those of us who believe in absolute right and wrong, and that government is set up to protect inalienable rights, should care most of all that a fair process decide whether those our government brands as criminals are truly guilty. That many of our friends do not seem to care about these principles when it comes to people presumptively labeled as “terrorists” makes me wonder whether they truly understand what inalienable rights are.