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The Debate Lingers

was supreme court's decision in hamdan the right one?

To mark Constitution Day last September, a panel of BC faculty discussed the significance of the Supreme Court’s decision in Hamdan v. Rumsfeld.

In Hamdan, the Court held that military commissions established by executive orders from President Bush were invalid because the president exceeded his authority. Furthermore, explained George Brown, Robert Drinan, SJ, Professor at the Law School, Justice John Paul Stevens, writing for the majority, saw several problems with the structure of the commissions. Among them: the lower threshold for determining the probative value of evidence, and the fact that defendants might be excluded from portions of the proceedings and might be denied the opportunity to confront witnesses or evidence against them. The majority also held that Congress had chosen to be bound by portions of the Geneva Convention pertaining to “regularly constituted courts.” Professor Brown argued, however, that the clear implication of the holding was that Congress could re-establish the commissions, and that the decision was based on statutes rather than the Constitution.

Professor Daniel Kanstroom, director of BC Law’s International Human Rights Program, argued that the commissions should be permissible only if they follow international norms and afford defendants basic human rights. He was particularly concerned that evidence obtained through coercive techniques could be exerted upon suspects, and that “conspiracy” could exist as a freestanding charge against defendants.

Political science professor Marc Landy, in contrast, argued that instead of asking what protections we could afford defendants under ideal circumstances, the Court should have asked, “How do you do the best you can” to establish justice in these critical circumstances while our nation is “fighting…the most impossible war” with no end in sight? He said the president’s exercise of his emergency wartime powers must be considered in light of the alternatives: letting the detainees go free or detaining them indefinitely.

Taking a broader perspective, assistant professor of political science Timothy Crawford pondered what effects the so-called secret military commissions might have on American foreign policy and our allies. “By clearing away some of our moral relativism,” the Hamdan decision may boost our reputation around the world and thus increase our ‘soft power,’” he said. By refusing to “let the executive branch manage a large part [of the war on terror] secretly,” the Court preserved our government’s transparency, which might induce other countries to extradite suspects and help us strengthen our ties abroad.

Hamdan essentially “puts the ball in Congress’ court,” said R. Shep Melnick, Thomas P. O’Neill Jr. Professor of American Politics. By not discussing Congress much at all, he stressed, “the Court’s implicitly saying Congress can probably do as it wants.” —Michael Engallena ’08

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