The Center for Constitutional Rights read with concern  the misguided decision issued by the United States Court of Appeals for the District of Columbia Circuit in the case Hamdan  v. Rumsfeld on July 15, 2005.  Mr. Hamdan, a detainee designated by President Bush to be tried before a military commission in Guantánamo Bay, Cuba, had filed a lawsuit challenging the President’s authority to establish military commissions in the absence of specific congressional action and the military’s authority to try him in violation of the Geneva Conventions.

The Court of Appeals erroneously rejected both arguments presented by Mr. Hamdan. First, the principle that all people captured in the context of an international armed conflict are covered by the Geneva Conventions is unequivocal; therefore, the court’s conclusion that Mr. Hamdan is not covered by the Conventions is incorrect. Second, in reaching its conclusion, the court ignores history.  The drafters of the 1949 Conventions were aware that the diplomatic measures contained in the 1929 Conventions had failed badly during wartime, and therefore deliberately sought to ensure that protected persons could use their domestic courts to protect their rights.  Furthermore, the Conventions’ ratification history shows that the U.S. Senate understood and intended for the Conventions to be enforceable in domestic courts without implementing legislation.

While the population of people who are affected by today’s decision may be small – only 4 people have  been formally charged with a crime and designated by President Bush for a trial by military commission – the ramifications of the decision may be enormous in  terms of the danger created for U.S. soldiers stationed abroad.  If the United States does not use fair and just procedures that guarantee military detainees due process protections in the “war on terror,” no other country will feel the need to do so either.   CCR anticipates that the courts will ensure that due process is provided to the over 500 detainees held at Guantánamo who have languished for three years without trial or access to courts, despite a Supreme Court ruling in their favor.  None of these men has been charged with any crime and none has been provided with a fair and just hearing on the claims they have raised in their habeas petitions.  The Center for Constitutional Rights, which represents these detainees, will continue to press the courts to recognize the validity and importance of the Geneva Conventions.