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By Root 3909 0

reached the Supreme Court.† Though some journalists and others tried to belittle Hamdan’s importance by referring to him as “bin Laden’s driver,” intelligence officials considered him much more than that. He was thought to be a significant facilitator for senior al-Qaida leadership and an arms trafficker. Hamdan was caught in Afghanistan with a surface-to-air missile in his car trunk—odd cargo for a mere chauffeur of little importance. Hamdan had filed a habeas corpus petition, the means by which a prisoner can challenge the basis of his incarceration. Given that Hamdan was neither an American citizen nor apprehended on U.S. soil, I thought his was a creative filing to say the least. In his lawsuit, Hamdan had identified several officials as defendants in addition to me, including President Bush and the military commander at Guantánamo, Brigadier General Jay Hood. As the first named defendant, I earned the dubious distinction of being identified in the shorthand title of the case: Hamdan v. Rumsfeld.

The Bush administration’s decisions to hold detainees without automatic access to the U.S. court system, to classify them as unlawful or unprivileged enemy combatants (not legally entitled to the POW privileges of lawful combatants), and to use military commissions were based on more than two centuries of American precedents. One was the 1942 case that upheld the constitutionality of FDR’s use of military commissions.11 It made clear that individuals engaged in armed hostilities against the United States and who do not themselves obey the laws of war with respect to uniforms, command structure, and the targeting of civilians, are “unlawful combatants” who can be tried and punished in military—rather than civilian—courts.12 In another case, the Supreme Court held that German nationals who were tried abroad by military commissions were not entitled to American judicial review.13 The Court concluded that it did not have jurisdiction to consider claims by alien enemies not held on U.S. soil.

But as we soon learned, that long-established and well-regarded legal foundation could not withstand the startling earthquake produced when American federal courts began to shift the legal ground regarding detainees and the laws of war. In 2004, the Supreme Court began handing down its first war on terror decisions.* They were not total defeats for the government’s positions, but they reflected a new and unprecedented judicial willingness to reverse a president’s wartime detention judgments.

As we departed the President’s meeting with Prime Minister Koizumi that June morning in 2006, an aide told me that the U.S. government had lost its argument in Hamdan. No one seemed to be able to explain what exactly that meant, but it was clear it wasn’t good. To me it sounded like I would be the first secretary of defense in history to lose a case in the Supreme Court of the United States to a terrorist. As we later learned, six of the nine justices issued separate written opinions on the case.14 After several senior attorneys had sorted through the main opinion, the two concurring and the three dissenting opinions, they concluded that the case amounted to a staggering blow to the military commission system, as well as to the administration’s legal positions on which wartime detention operations depended.

In one of the stranger portions of the Hamdan opinion, a majority of justices also concluded that Common Article 3 of the Geneva Conventions applied to the conflict with al-Qaida. Common Article 3 established rules for detainees in armed conflicts “not of an international character.”15 I was informed that the phrase had long been understood to refer to civil wars fought within the territory of a single state. In early 2002, administration lawyers had advised the President that Common Article 3 did not apply to the global conflict with al-Qaida. Now, Common Article 3 was deemed by the Supreme Court to apply to that conflict, even though al-Qaida is an organization, not a state, and was not a party to the Geneva Conventions, and even though the conflict