What the Hamdan Ruling Really Meant
Wednesday, July 26, 2006; Page A16
Charles Krauthammer got it exactly backward when he said that the Supreme Court has declared in Hamdan v. Rumsfeld that "there is no war" and that government has to "operate by peacetime rules" ["Emergency Over, Saith the Court," op-ed, July 7]. What the court said rather was that the chief executive must follow the laws of war.
This is not a requirement that the tribunals operate by peacetime rules.
If the court had declared that, then any criminal trials would have to occur in civilian courts with all of the ordinary protections of a criminal trial. But even in war, there are rules that define how wartime prosecutions should operate. Otherwise, the chief executive could unilaterally set the rules for trial and even allow summary executions.
Indeed, President Bush acknowledges that there are laws of war. It is those very laws that form the basis of the planned prosecutions for war crimes.
All the Supreme Court said is that an executive prosecuting individuals for violating the laws of war must follow those same laws during the prosecution. Those laws are defined not by statute but rather by the practice of civilized nations and by treaties, such as Common Article 3 of the Geneva Conventions, which requires trial in a "regularly constituted court" that affords universally accepted procedural protections.
Mr. Krauthammer's argument -- and the administration's -- that al-Qaeda members are not entitled even to these procedural protections presumes that those charged are al-Qaeda members guilty of war crimes. But the very point of procedural protections is to provide some assurance that only the guilty are convicted. This is particularly important in what Mr. Krauthammer describes as a shadowy and indefinite war against a scattered enemy. The nature of this conflict makes mistakes particularly easy, threatening not just al-Qaeda members but all of us.
MARC GOLDMAN
Washington
MAJ. MICHAEL D. MORI
Alexandria
The writers are counsel for David Hicks, a detainee at the prison at Guantanamo Bay, Cuba.
