Washington, DC (June 29, 2006) – The National Association of Criminal Defense Lawyers (NACDL) applauded today’s Supreme Court decision in Hamdan v. Rumsfeld as a decisive victory for the defense function, for the courts, for Congress, but most of all, for the Constitution and people of the United States. In the words of Justice Anthony Kennedy, concurring, “Concentration of power puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution’s three-part system is designed to avoid.” In other words, as stated by Justice Sandra Day O’Connor two years ago in another detention case, Congress decidedly did not issue the president a “blank check.”
NACDL President Barbara E. Bergman’s assessment of the case was blunt. “The AUMF [Authorization for Use of Military Force] did not dispense with the rule of law and create a wartime dictatorship. A majority of the Court agrees.”
The Court held 5-3 that the structure and procedures of the administration’s military commissions, as convened to try Guantanamo prisoners such as the petitioner, Salim Ahmed Hamdan, violate both the Uniform Code of Military Justice and the Geneva Conventions. NACDL filed a friend of the court brief on Hamdan’s behalf that outlines the history of military justice from the Revolutionary War to the present day. The crux of NACDL’s argument was that Congress, through enactment of the UCMJ, had already provided the procedures and due process for the treatment of prisoners of war and suspected unlawful combatants.
“Our brief established, from a historical perspective, that the jurisprudence of military justice (a) belongs to Congress, and (b) as a matter of practice, prosecutions such as these have always followed the rules for courts martial,” explained the brief’s author, Donald J. Rehkoph, of Brenna & Brenna, Rochester, NY. Rehkopf is an attorney in private practice specializing in military law and is co-chair of the association’s Military Law Committee.
“We hope this decision signals the end of the ordeal for David Hicks and the other detainees subject to what international observers, including Great Britain’s top law enforcement official, have called the ‘legal black hole’ that is Guantanamo,” said Joshua L. Dratel, lead counsel for Mr. Hicks, the first detainee charged in the Guantanamo military tribunals. “In vindicating these detainees’ rights, the Court has also vindicated the rule of law and rehabilitated the U.S.’s standing in the international legal community.” Mr. Dratel is a member of NACDL’s Board of Directors, and co-chair of its Amicus Curiae Committee, as well as the first civilian lawyer to become involved in the defense of the military commission defendants.
The NACDL legal team also noted that four members of the majority do not even believe that Hamdan could be tried before a properly-constituted tribunal on his present charges, since under the common law governing military commissions, it is not enough to intend to violate the law of war and commit overt acts in furtherance of that intention unless the overt acts themselves are offenses against the law of war or constitute steps substantial enough to qualify as an attempt to do so.
Past President Nancy Hollander observed, “I think it is most important that the Court recognized that the Geneva Conventions apply to Guantanamo detainees, which the administration has refused to admit. The majority opinion states, unequivocally, that Article 3 is applicable in this case and requires that Hamdan be tried by ‘a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.’ Therefore, at a minimum, the detainees must be afforded trial protections recognized by customary international law. That means due process, open proceedings and the right to confront witnesses.”
Hollander is the chair of NACDL’s Guantanamo Detainees and Military Tribunals Committee.
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Article 3 is sometimes referred to as “Common Article 3,” because it appears in all four of the Geneva Conventions, and it states further that a party to the conflict is bound, at a minimum, to apply provisions protecting “[p]ersons taking no active part in the hostilities,” including those in detention.
“Hamdan was a driver – he did what he was told,” said Rehkopf, the military lawyer. “Would they have charged Hitler’s driver? But that’s a more complex question dealing with the law of war. It’s up to Congress to define crimes under international law, not the executive.”
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.