I'm still ruminating on the Court's decision in Hamdan v. Rumsfeld, but apart from the Court's obvious rejection of the President's claim to plenary wartime powers [see Prof. Vladeck's insightful post for more], the thing that stands out for me is that this opinion is consistent with my view that the President is entitled to detain enemy combatants (assuming, of course, appropriate procedures for determining that said detainee is in fact an enemy combatant and remains one four years later) without having to prosecute them.
Hamdan appears to be a statutorily-driven decision -- if the President seeks to punish wartime enemies by prosecuting them in military commissions, those commissions must comply with the Court's interpretation of the Uniform Code of Military Justice, which represents Congress's determination of the rules by which the President must play *if* he seeks to punish persons under the laws of war.
There's an important caveat at the end of the Court's opinion:
It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities in order to prevent such harm ["great harm and even death to innocent civilians"].
I don't want to read too much into this, as it's just a statement of what the Court is *not* deciding, but at the same time, it does seem as if there is a meaningful distinction between detention and prosecution, particularly given the Court's reasoning -- based primarily on the UCMJ's provisions regulating courts-martial (and by inference, military commissions).
The main problem with resorting to the Geneva Convention in determining the rights of detainees is that when it comes to detention, Geneva has little to say apart from the conditions of detention. True, Article 5 does state that if the detainee's entitlement to POW status is in doubt, he is to be presumed to be a POW until a competent tribunal determines otherwise. This, however, tells us nothing if the question is how long a person can be detained.
Hamdan, of course, does not involve the question of whether Hamdan is entitled to POW status, though it does conclude that Common Article 3 applies. Yet, while Common Article 3 bears on the question of how a detainee can be prosecuted and perhaps more broadly how one can be interrogated, it too says nothing about the length of detention. One can argue, I suppose, that indefinite detention amounts to "[o]utrages upon personal dignity, in particular, humiliating and degrading treatment," but that seems to me to be quite a stretch. Certainly a German or Japanese soldier captured in early 1942 would be facing prolonged and (from the point of the view of the soldier) indefinite detention, yet Common Article 3 can't be prohibiting that sort of detention.
I don't mean to downplay the significance of the other part of Hamdan, namely, the interpretation of the Detainee Treatment Act. I confess to thinking that Justice Scalia's dissent is more persuasive on this point, but I'm not terribly troubled by the Court's opinion. If the Court has misinterpreted Congress's intent (as Justice Scalia argues, and as I suspect), Congress could amend the DTA. However, if that does not happen, it is true that numerous other detainee habeas petitions will continue to work their way through the federal courts, and some of those will address the substantive and procedural issues relating to detention. Here, I would expect courts to act more aggressively in determining the procedural rights that detainees have, particularly relating to challenging their status as enemy combatants (the subject of an article I wrote), but I would be quite surprised if any court were to rule that the President lacked the substantive power to detain persons determined to have been enemy combatants (even though I argued in a different paper for a framework for determining when enemy combatants should be released even if the war on terrorism continues).