- Permissible detainee interrogation tactics; whether tactics such as sleep deprivation or 'waterboarding' constitute "grave breaches" of the Geneva Conventions;
- Whether the President can justify military tribunals based on principles contrary to existing U.S. law;
- Terrorism defendants' right to access evidence used against them at trial.
Bush Establishes Military Tribunals
Two months after the September 11 attacks, President Bush issued a Military Order on the Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism. They were established primarily to deal with prisoners captured in Afghanistan who would later be held at Guantanamo Bay.
In the Order, Bush invoked the danger of these detainees and of international terrorism to suspend the rules typically observed at military trials. He made his claim based on a section of the United States Code of law, which permits the president to elaborate the procedures to be followed in trials carried out in military contexts. The law also, however, asks that the President establish regulations:… which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts ….Bush made the case that potential harm of a terrorist attack justified suspending the principles of law and rules of evidence.
Although some of the detainees have since been revealed to be innocents who were in the wrong place at the wrong time, when they were captured in Afghanistan and elsewhere, detainees' subsequent treatment has in large part been carried out as if it were known for certain that they are Al Qaida or Taliban members who actively participated in armed conflict.
The Supreme Court Rules against Administration's Military Commissions
On June 29, 2006, the Supreme Court upheld a District Court decision in its ruling on Hamdan v. Rumsfeld. Salim Ahmed Hamdan, a Yemeni national and an aide to Osama bin Laden, was captured in Afghanistan in 2001, and detained at Guantanamo Bay. In 2003, he was prosecuted by the U.S. government as a conspirator in "offenses triable by military commission."
Hamdan contested the charge, arguing (1) that he should not be tried by military commission, because conspiracy is not a crime of war, and (2) that international law decrees that a defendant must be able to see the evidence against him. The Bush Military Order, however, had made most evidence in such cases classified, and therefore unavailable to a defendant.
The U.S. Administration appealed the decision in Hamdan's favor, and won. This decision was subsequently overturned by the Supreme Court, which agreed with the original ruling that:
…the President's authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war; that such law includes the Third Geneva Convention; that Hamdan is entitled to that Convention's full protection until adjudged, under it, not to be a prisoner of war; and that, whether or not Hamdan is properly classified a prisoner of war, the commission convened to try him was established in violation of both the Uniform Code of Military Justice (UCMJ), 10 U.S.C. ¶801 et seq., and Common Article 3 of the third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear.