Military Commissions: Going … going … gone

No, it ain’t over yet, but the fat lady is clearing her throat. 

Reuters reports that federal juges in the District of Columbia are organizing themselves to deal with the flood of habeas petitions the Supreme Court in Boumediene decided our enemies have a constituitonal right to file in our courts.  The story informs us:

“It has been determined that one initial issue to be decided will be a motion to enjoin a military commission from going forward,” Chief Judge Royce Lamberth said.  He said U.S. District Judge James Robertson was assigned that issue and it will be decided initially in a case involving Salim Hamdan, who was the driver for al Qaeda leader bin Laden in Afghanistan.

Some readers may remember Judge Robertson — appointed to the bench in 1994 by President Clinton — as the jurist who stepped down from the FISA court in 2005, reportedly in protest against the Bush administration’s warrantless eavesdropping program.  (To his credit, Judge Robertson made no public statement about the reasons for his resignation.)  [UPDATE:  To be clear, resigning from service on the FISA court does not mean a judge resigns from his position on the bench.  Judge Robertson was and remains a federal district judge for the District of Columbia..]

As I recounted in a 2004 NRO article, Robertson is also the original judge in Hamdan case — the judge who made what at the time seemed like the astounding ruling that unlawful enemy combatants are entitled to Geneva Convention privileges, including potentially the prisoner-of-war protections reserved for honorable combatants.  (Terrorists are are deemed “unlawful” combatants precisely because they flout the laws of war, compliance with which is a prerequisite for honorable prisoner-of-war status.)  As I wrote at the time:

… In November, … federal District Judge James Robertson, in Washington, D.C., boldly extended prisoner-of-war safeguards to al Qaeda operative Salim Ahmed Hamdan (reputed to be Osama bin Laden’s driver) who is also held in Guantanamo Bay. To do so, the judge not only had to rewrite the Geneva Conventions into something vastly different from the treaty ratified by the United States in 1949; he also had to ignore that the U.S. has considered and has for over a quarter-century expressly refused to ratify a treaty (the 1977 Protocol I to the Geneva Conventions) that would grant POW protections to non-state militias.

Judge Robertson, whose decision is being appealed, may well believe the U.S. should have a POW treaty with beasts who, far from shining lights in the eyes of their captives, tend to behead them. We, however, have resolutely declined, it would be a delusion to think we would ever democratically adopt one, and the notion that such an agreement was actually contained in the third Geneva Convention but simply escaped everyone’s notice for the last 55 years is untenable. In our system, moreover, the conduct of international relations is predominantly a political process, not a legal one. Under our constitution, the role of the U.S. courts is to apply international law to the extent it is adopted by the political branches consistent with the elaborate procedures of Articles I and II. It is not to impose on the American people by judicial fiat novel international obligations which, as Protocol I illustrates, they never would have agreed to had such duties been squarely proposed. The Hamdan court, nevertheless, felt free to ignore the U.S. constitutional procedure in favor of such authoritative sources as “general international understandings” and a decision of the International Court of Justice.

Justice Robertson’s ruling and reasoning were thoroughly rejected by a panel of the DC Circuit that included then-Circuit Judge John Roberts.  (I wrote this paper for the Washington Legal Foundation, analyzing the decision.)  The appellate court in Hamdan was especially emphatic in rejecting Judge Robertson’s Geneva Conventions analysis. 

Alas, when Circuit Judge Roberts became Chief Justice Roberts, he appropriately recused himself from Hamdan’s appeal to the Supreme Court.  The rest is history:  In the 2006 Hamdan decision, five justices (the same five who made up the Boumediene majority) ruled that Geneva’s Common Article 3 (CA3) extended to alien unlawful enemy combatants.  To do so, the Court majority both tortured the language of CA3 (which by its own terms applies to civil wars, not international wars) and failed to address the DC Circuit’s central rationale for rejecting Judge Robertson’s expansive reading of Geneva, namely:  that international agreements do not create private, judicially enforceable rights – instead, alleged treaty violations are resolved by “international negotiations and reclamation,” not by lawsuits.

Bottom line:  Congress can either get busy on a comprehensive system for regulating detention and trial in the aftermath of Boumediene, or it can wait on the sidelines while Judge Robertson and his colleagues design one that comports with their own notions of due process.