The “war on terror” has forced democracies to grapple with the extent to which they can afford to protect the civil rights and liberties of both their citizens and foreigners. The debate has been most intense in the United States, where the refrain that the Constitution is not a “suicide pact” and that national security can justify extraordinary measures is heard repeatedly. Some measures – unauthorized searches of bank records and wiretapping of telephone calls – compromise the liberty of all. Others – most notoriously, the confinement of roughly 450 alleged Muslim fighters in Guantánamo Bay – impinge on people thought to be the enemy.
Amid rising allegations of abuse, President George W. Bush’s government realized some time ago that it could not maintain its Guantánamo detention camp forever. Yet it did not want to repeat the experience of the Zacharias Moussaoui trial, in which, after many propagandistic appeals from the dock, the alleged twentieth September 11, 2001, hijacker was finally convicted and sentenced to life imprisonment. So the Bush administration proposed a middle way: a military commission under military judges, which would recognize fewer rights for the accused and bar appeals to civilian courts.
In its recent decision in Hamdan v. Rumsfeld , the US Supreme Court said “no”: Bush’s exercise of executive power went too far. As a result, the decision will have a lasting impact on America’s constitutional structure.
Salim Ahmad Hamdan served as Osama bin Laden’s personal driver. Other than drive his boss around and attend meetings, he did nothing more to promote the terrorist attacks of September 2001. Yet his driving and his knowledge of Al Qaeda’s purposes struck the military as sufficient to charge him with entering a conspiracy to kill civilians and engage in terrorists acts.