April 17, 2008
McLean Lecture on World Law
US Sovereignty and the War on Terror after Hamdan v Rumsfeld

Charles Swift,
Associate Professor and Acting Director of the International Humanitarian Law Clinic at the Emory University School of Law

On April 17, Global Solutions sponsored the Sixteenth Annual McLean Lecture on World Law along with the Center for International Legal Education at the University of Pittsburgh School of Law. Charles Swift, Associate Professor and Acting Director of the International Humanitarian Law Clinic at the Emory University School of Law, gave a lecture titled “US Sovereignty and the War on Terror after Hamdan v. Rumsfeld.” Professor Swift represented Salim Ahmed Hamdan in the case.

 Professor Swift began by explaining his client’s situation. Hamdan, a citizen of Yemen, went to Afghanistan in search of work and found a job as a driver for a rich man about whom he knew very little. Unfortunately for Hamdan, the man was Osama bin Laden. Mr. Hamdan was captured on September 12, 2001, and transferred to Guantánamo Bay, where he was to stand trial before a special military commission on charges of conspiracy.

 Professor Swift argues that these military commissions violate both the Geneva Conventions and the Uniform Code of Military Justice (UCMJ). The Bush administration contends that it is not bound by domestic or international law in the case of 9/11detainees at Guantánamo because the members of al-Qaeda do not belong to a single nation state and therefore are not entitled to receive POW rights. Professor Swift set out to prove that the state of war is not an invitation for the administration to do as it pleases.

Mr. Hamdan’s case was first heard in the Washington, DC district court, which decided in his favor. The Bush administration appealed the ruling, which was overturned. In 2006, the case was heard by the Supreme Court, which ruled that military tribunals must give all rights of the Geneva Conventions and must fulfill the terms of the UCMJ. The ruling, however, also stated that Congress has the right to alter the UCMJ and they decided to do just that. Congress passed legislation that eliminates the right to speedy trial for these detainees and permits coerced testimony.

 Thus, Professor Swift and Mr. Hamdan must decide if they want to continue with a trial under laws which basically guarantee defeat, or continue fighting to make the laws more just before going ahead with a trial. In the meantime, Salim Ahmed Hamdan finds himself back in a solitary confinement cell in Guantánamo Bay, exactly where he began this journey six years ago.

 *Mr. Hamdan was recently given some hope from the Supreme Court decision stating that Guantánamo de­tainees are entitled to challenge their detention in US courts.