Bill of Rights Defense Campaign

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Working with communities to uphold the Bill of Rights
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July 11, 2006

Hamdan vs. Rumsfeld and What It Means

Dear Friends,

The Supreme Court’s June 29th 5-to-3 ruling on Hamdan vs. Rumsfeld was a victory for the rule of law. In addition to denying the president the authority to hold secret military tribunals that violate basic rights, without congressional oversight, the Supreme Court ruled that:

  • Common Article 3 of the Geneva Conventions requiring humane treatment applies to detainees in U.S. military custody. (They did not call it “quaint” or “obsolete.”)
  • The Authorization for the Use of Military Force (AUMF) passed by Congress did not entitle the administration to deny detainees basic rights provided by U.S. and international law, such as the right to be present at one’s tribunal.
  • Guantánamo prisoners who have habeas corpus petitions filed on their behalf still have the right to their habeas hearings.

This is good news you can use!

  • If the AUMF isn’t grounds to deny Guantánamo detainees basic rights, we can assume it can’t deny us our Fourth Amendment right not to be secretly wiretapped without a warrant.
  • The Bush administration has already announced that Common Article 3 of the Geneva Conventions will now apply to detainees in U.S. military custody. See Secretary of Defense’s memo (PDF). (The memo does not address the treatment of detainees held by the CIA or by other countries on their behalf. Those detainees number in the thousands.)

The down side

Republican leadership in Congress is already working on legislation to give the president the authority he had seized illegally. For example, before the ink was dry on the Supreme Court’s decision, Senate Judiciary Chairman Arlen Specter (R-PA) had already introduced S. 3614, the Unprivileged Combatant Act of 2006, which would cede power to the executive branch for setting up military tribunals, with no checks and balances. S. 3614:

  • Gives the President the power to create military commissions.
  • Codifies the Combatant Status Review Tribunals, which the president created in 2004, as an end-run around the Supreme Court ruling that detainees at Guantánamo should be allowed to challenge their detentions in federal court.
  • Fails to address the crux of the opposition to Guantánamo and military tribunals – that there is no oversight outside the executive branch.

Congressional hearings

Congressional committees have scheduled the following hearings on the matter. Testimony in the first two hearings is heavily dominated by administration officials. At Thursday’s hearing before the Senate Armed Services, current top military lawyers from all four military branches are expected to testify. You may read their testimony online or tune in to the committee web sites to watch the hearings live.

What you can do

The Supreme Court has spoken: In setting up secret military tribunals, the administration has overreached its authority. “We the people” are the only power that can stop Congress from enabling the administration to circumvent the Supreme Court’s ruling.

Senate Majority Leader Bill Frist doubts that the Senate will act on a bill addressing the Supreme Court ruling before September. But it is not too soon to contact both your Senators and your Representative and tell them that:

  • Congress must hold the administration responsible for adhering to U.S. and international law.
  • Congress must not facilitate the executive branch setting up its own criminal justice system, where it acts as prosecutor, judge, jury and executioner.
  • Congress must make it clear that further encroachments from the executive branch will be met with a firm denial.

Click here to find contact information for your Senators and Representative.

Thanks for all you do!
The Bill of Rights Defense Committee