Interview with Charles C. Sipos (co-counsel for Salim Ahmed Hamdan in Hamdan v. Rumsfeld (2006) by Angad Singh

In the wake of the 9/11 attacks, the executive branch of the US government established special military tribunals to try alleged enemy combatants held in Guantanamo Bay. On June 29th, 2006, the Supreme Court of the United States ruled in Hamdan v. Rumsfeld (2006) that the military tribunals violated both domestic and international law. I had the honor to interview the co-counsel for Salim Ahmed Hamdan regarding the Supreme Court ruling and the Military Commissions Act (MCA) that was passed by Congress as a consequence of the Court’s ruling. Any views presented in the interview do not necessarily reflect those of anyone involved with the International Intelligencer.

Q: On the behalf of the International Intelligencer, I thank you for your participation in this interview. Firstly, could you please tell me your occupation, about your involvement with Hamdan v. Rumsfeld, and what theorists or theories have most influenced your political thinking?

A: I first became involved in the Hamdan case when the law firm where I’m an associate, Perkins Coie in Seattle, was asked to act as co-counsel with Professor Neal Katyal and Lt. Commander Charlie Swift. We helped Prof. Katyal and Commander Swift prepare the initial habeas petition, and ultimately stayed on board throughout the course of the case. We continue on with them as co-counsel to this day. My primary area of responsibility focused on the extent to which the Executive’s system of military commissions complied with the procedures set forth in the Uniform Code of Military Justice (“UCMJ”). The UCMJ sets forth the primary and essential trial procedures for use in courts-martial. The Executive’s commissions were inconsistent with the UCMJ in a number of ways, although perhaps most notably, by allowing the trial to be conducted without the accused present. My own political views didn’t come into play for the representation of Hamdan. The Executive commission process that the Supreme Court ultimately struck down offended domestic and international law, and that conclusion wasn’t dependent on political views. So, I didn’t think about it that much.

Q: The majority opinion, as written by Justice Stevens, states that the military commissions created to try alleged unlawful combatants, such as Hamdan, are unconstitutional as they not only violate the domestic military law as enshrined in the Uniform Code of Military Justice (UCMJ), but also violate international laws of war, specifically, the Geneva Conventions. The main complaint, in terms of domestic law, was that the commissions violated the clause of the UCMJ that states courts-martial and military commissions must be “uniform insofar as practicable.” The Court argues that they were not uniform because of the ability to exclude the accused from being present at one’s own trial and that the accused may not view all the evidence used against one due to national security reasons. Is any aspect of national security at risk if the accused is presented with the evidence against the accused? Does the administration have any evidence of this claim? Is there any historic precedent for withholding evidence from the accused under domestic military law?

A: Although it is certainly possible that evidence presented in commission cases might pose security concerns, courts (including our Federal Courts) are well-equipped to deal with this kind of sensitive material. Numerous procedures already exist – the filing of documents or evidence under seal, presentation to judges in camera, closing the court room for certain portions of the proceeding – that allow courts to effectively address security concerns. We didn’t receive or review any specific evidence in Hamdan’s case (and of course, if we had, we couldn’t discuss it), but we did take the position that our existing Federal Courts and courts-martial could handle trials that implicated security concerns. In preparing Hamdan’s case, we did not uncover any cases where the prosecution was allowed to convict an accused on the basis of evidence that the accused never saw, and the Government did not put in any authority that supported such an argument. As the District Court judge in Hamdan commented, the Government is always free to elect not to put in particular evidence if it feels it is too sensitive. But they can’t have it both ways by withholding that evidence from the accused and then asking the court to nonetheless convict him on the basis of it.

Q: One argument used by the executive to dismiss alien enemy combatants’ claims to protections under the Geneva Conventions is that al-Qaeda is not a signatory to the convention. In terms of international law, the Court opinion, as authored by Justice Stevens, argued that it is irrelevant that al-Qaeda is not a signatory to the Geneva Conventions because Common Article 3 of those conventions still applies to them. However, the DC Federal Court of Appeals ruled that Geneva does not apply. Is it not a requirement that combatants must a) wear a standard uniform or visible emblem b) carry arms openly c) be a part of a chain of command and in general follow the laws of war to be protected under the Geneva Conventions? In light of al-Qaeda’s tactics of attacking civilians and violating the aforementioned requirements, are members of al-Qaeda protected under the Geneva Conventions? Since Geneva requires a competent tribunal to assess whether the combatants are lawful or not, do the Combatant Status Review Tribunals (CSRTs) constitute a competent tribunal to asses al-Qaeda and or the Taliban’s combatant status under domestic and or international law?

A: This area gets a bit complicated, but the short answer is that Common Article 3 of the Geneva Conventions (called “Common Article” because it appears in each of the four Geneva Conventions) protects persons who are not uniformed members of military forces. Hamdan denies he was a member of al-Qaeda, and there was never any hearing that complied with the requirements of the Geneva Convention – called an Article 5 hearing – determining his status to be anything other than a prisoner of war. Our position has been that the CSRT did not meet the requirements of Article 5 and was not a “competent tribunal” for purposes of making this determination. Moreover, it is undisputed that the Government consistently maintained that it need not comply with the Geneva Convention’s Article 5 status hearing requirements.

Q: Justice Stevens has argued that Common Article 3 does afford protections to persons such as Hamdan because he was caught in the territory of a Geneva signatory, Afghanistan, in a conflict not of an “international character.” But, is not the current War on Terrorism global in nature? Should the phrase, “armed conflict not of an international character” be read broadly to include the current War on Terrorism due to the omission of a previous draft of Common Article 3 that clarified the phrase by claiming, “especially in cases of civil war, colonial conflicts, or wars of religion,” as Justice Stevens has argued?

A: I believe Justice Stevens’ analysis was correct in determining that the Geneva Conventions extend to Hamdan and the circumstances of his capture. Whether the Geneva Conventions would apply to every person the Government claims has been captured as part of the “War on Terror” is an open question, but I think the Court in Hamdan was correct to reject the Executive’s argument that its actions in that “War” are somehow universally exempt from the dictates of international law and the Geneva Conventions.

Q: Congress passed the Authorization for the Use of Military Force (AUMF) a week after the 9/11 attacks which authorized the President to “use all necessary and appropriate force” to combat nations, organizations, or persons that were involved or aided the 9/11 attacks in order to prevent such acts from occurring on US soil again. The executive has used the AUMF to argue that Congress had given it powers to establish the tribunals in question in the Hamdan case. How far does the AUMF let the executive conduct the War on Terrorism? Does the AUMF bolster the administration’s argument about the necessity of a unitary executive in a time of war? How much purchase does unitary executive theory have in Court? How can the Court reconcile the demands of war with the demands of domestic and international law? Are there legal gaps that do not address pertinent issues in the War on Terrorism? Should domestic and or international law be updated to take into account the various issues the courts have encountered in the War on Terrorism?

A: As the Court in Hamdan observed, the AUMF did not speak in any way to the President’s authority to conduct trials or to mete out punishment. It simply mobilized military forces, but did not otherwise amplify the Executive’s constitutional powers or authorize unilateral Executive action in spheres of authority committed to the Judiciary or Congress. Again, it is certainly possible to argue that domestic or international law should be modified in order to address threats posed by international terrorism, but one of the key insights of the Hamdan decision is that it is not for the President alone to do so.

Q: The DC Federal Court of Appeals ruled that the Geneva Conventions are not judicially enforceable. Are there any precedents that weaken or strengthen this argument? As precedent is concerned, how much can the courts rely on Ex Parte Quirin (1942), a Supreme Court case that upheld President Roosevelt’s convening of a military tribunal to try captured German spies?

A: The Hamdan Court effectively rejected this reading, by holding that Hamdan had enforceable rights under the Geneva Conventions. Since at least the Head Money Cases, decided in 1884, it has been the law that where treaties provide for private or individual rights (and the Geneva Convention is such a treaty), then those rights are judicially enforceable by courts.

Q: The administration has tried to circumvent terrorism cases from judicial review through clauses in the Detainee Treatment Act (DTA) and the Military Commissions Act (MCA). How have these clauses prevented, or not, court review of writs of habeas corpus, detainee treatment, and other issues? Is Justice Scalia’s argument in Hamdan correct, that the court does not have jurisdiction due to the language of the DTA?

A: The Court in Hamdan rejected the Government’s argument that the DTA stripped federal courts of jurisdiction to hear pending cases filed by detainees challenging their detention or trial before military commissions. Whether or not the MCA accomplishes what the DTA did not, is likely an issue that the Supreme Court will have an opportunity to decide in the coming months.

Q: In light of the massage of the MCA, what course of action has Hamdan taken, or is taking?

A: Hamdan’s case was remanded to the District Court (the trial court level in our Federal Courts). The Judge there ruled that he no longer had jurisdiction over Hamdan’s case, because the MCA had effectively withdrawn that jurisdiction. Hamdan is currently appealing that decision.

Q: Do certain provisions of the MCA violate the ruling of the Supreme Court in Hamdan v. Rumsfeld? Particularly the admission of hearsay evidence and the continued ability of the military judge to exclude the accused from the trial if classified information “could reasonably be expected to cause identifiable damage to the national security.” Do these clauses violate the UCMJ uniformity requirement as the Court has ruled? Do these clauses violate Common Article 3 in its requirement to try the accused in a “regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”?

A: Angad – sorry, but answering this question in full requires discussion of ongoing legal work we’re doing on Hamdan’s case. The rules on attorney-client privilege and attorney work-product make it tough for me to discuss thoroughly.

Q: The MCA states that conspiracy is a triable offense in the new military tribunals. Does this violate the Court’s ruling in Hamdan v. Rumsfeld? Furthermore, does the MCA foreclose the possibility of court review of writs of habeas corpus for unlawful enemy combatants? Does it also foreclose judicial review of such an alien’s condition of detention as pertaining to coercive interrogation/torture domestic or abroad through extraordinary renditions?

A: The MCA attempts to do these things, and whether or not the law is constitutional is something that the Supreme Court will ultimately be asked to decide. My answer to the questions below are pretty much the same, and again because of privilege concerns, am not in a position to provide too much more detail than that. I can tell you that certain aspects of the MCA are being challenged by Hamdan in his appeal, by a group of other Guantanamo detainees whose cases are in the D.C. Circuit Court of Appeals, and by a case in the Fourth Circuit Court of Appeals involving a resident alien whom the government contends is an enemy combatant and is currently held in prison within the United States. At this point, these challenges primarily concern the question of whether or not federal courts still have habeas corpus jurisdiction over detainee cases.

Q: Does the MCA legalize extraordinary rendition in its language that states a convicted alien enemy combatant may be confined in a prison of one of the US’ allies?

No answer.

Q: Does the MCA exclude the US from section 1(d) of Common Article 3 that prohibits “the passing of sentences and the carrying out of execution without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees, which are recognized as indispensable by civilized peoples”? Can the MCA legally exempt the US from this clause? If so, are there not drastic ramifications for international law in general? Does this exemption, if it is an exemption, violate the Supreme Court’s ruling that the military commissions must comply with Common Article 3?

No answer.

Q: Is the MCA constitutional because the most important laws governing these issues are domestic ones, as Justice Kennedy implied in Hamdan v. Rumsfeld? What are, and are not, grounds for determining the MCA as unconstitutional? Is the MCA being challenged through the courts? What is the likelihood of certain aspects of the MCA being deemed unconstitutional?

No answer.

Q: Do you have any closing comments? I thank you very much for your participation in the interview.

A: I appreciate you contacting me, and am glad to hear that students at the collegiate level are taking an interest in the Hamdan case and the important issues that it presents. Good luck with the journal and feel free to contact me if you have any follow-up. Thanks again.