The Trial of Salim Hamdan: Santa Claus Pays an Early Visit to Guantanamo

Round two of the trial of Salim Hamdan is now underway in earnest. Most will recall that round one ended when the Supreme Court of the United States ruled that the military commission established by an order issued by President Bush violated constitutional separation of powers limitations (with a plurality of the court also concluding the commission violated the humane treatment mandate of the law of war). Congress responded rapidly to that ruling by passing the Military Commission Act of 2006, providing the president with a statutory basis for resurrecting the commissions.

Pursuant to that statute, Salim Hamdan was recharged and once again brought to trial before the commission. In what must have been an ironic coincidence, his second trial began on the same day the Supreme Court heard arguments in the Boumediene case challenging the restriction of habeas corpus access for Guantanamo detainees. That challenge, however, in no way restricted the ability of the government to press forward with Hamdan's trial.

One of the most disturbing aspects of the original military commission was the plenary power of the secretary of defense over all aspects of the military commission process. Equally disturbing was the pervasive authority of the Department of Defense general counsel -- the president's senior politically appointed lawyer for the Pentagon -- over this quasi-judicial process. This authority included not only the supervision of both the prosecution and defense lawyers, but also the selection of the judges chosen to preside over the trials. As I have written elsewhere, this lack of meaningful independence for the commission trial judiciary was fundamentally inconsistent with a core tenet of the U.S. military justice system, and in direct conflict with the law of war obligation to ensure that any tribunal used to try a captured enemy possess minimal standards of independence and impartiality. Fortunately, the Military Commission Act changed the procedure for selecting trial judges for the commissions. No longer could the secretary of defense and his general counsel -- the same authority that directed prosecution -- choose who would preside over the proceedings. Instead, a pool of military judges qualified pursuant to the Uniform Code of Military Justice would be relied on to provide trial judges.