High Court to Consider Tribunals

The US Supreme Court has agreed to rule on the constitutionality of military tribunals for terror suspects being held at Guantanamo Bay, Cuba. The test case will be that of Osama bin Laden's former driver Salim Ahmed Hamdan. (Arab News: US Supreme Court to Rule on Gitmo Trials).

In an interesting and complicating twist, US Supreme Court Chief Justice John Roberts has already ruled on this case as an appellate court justice. He did not participate in yesterday's proceedings since it would involve sitting in judgement of his own rulings. Unfortunately, his ruling may well be necessary for the constitutionality of the military tribunals to be upheld.

It is somewhat surprising that the Supreme Court agreed to take up the case since the use of military tribunals was already reviewed and upheld by the court. In 1942, eight German saboteurs were captured, tried, and executed by a military tribunal. The Supreme Court was unanimous in its agreement as to the constitutionality of the tribunal and the authority of the President to so order a military tribunal.

In fact, military tribunals in the US go back at least as far as the Mexican-American war, and were also used in the Civil War. (That's the War of Northern Aggression, for you southerners that may be reading along!) FDR used tribunals successfully in World War II, and the Supreme Court unanimously approved their use in ex parte Quirin.

One would hope that the US Supreme Court does not overturn their own precedent and thereby weaken the powers of the President in times of war. Military tribunals are most certainly necessary in cases such as these where the accused are committing acts of war against the US. The 1942 ruling is clear:

Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

Our guests at Gitmo certainly fall in that category. Under the internationally accepted laws of war, the prisoners being held off shore are clearly and legally defined as "unlawful combatants" and by definition are subject to trial and punishment by military tribunals. All we need now is for the US Supreme Court to uphold that law.

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