Hamdan v. Rumsfeld, 548 U.S. 557 (2006), is a United States Supreme Court case in which the Court held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay violated both the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions ratified by the U.S.
Hamdan raises several legal issues: Whether the United States Congress may pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place; whether the special military commissions established by the executive branch violated federal law (including the UCMJ and treaty obligations); and whether courts can enforce the articles of the Geneva Conventions.
After hearing oral arguments on March 28, 2006, on June 29, 2006, the Court issued a 5–3 decision holding that it had jurisdiction; that the administration lacked either the constitutional power or congressional authorization to establish these particular military commissions; that, absent such authority, the military commissions had to comply with the "ordinary laws" of the U.S. and of war, which include the UCMJ and the Geneva Conventions incorporated therein; and that Hamdan's trial, having violated the rights and procedures under both bodies of law, was illegal.
Background
The plaintiff was Salim Ahmed Hamdan, a citizen of Yemen who worked as a bodyguard and chauffeur for Osama bin Laden. Hamdan had formerly worked in Afghanistan on an agricultural project that Bin Laden had developed. Hamdan was captured by militia forces during the invasion of Afghanistan in the fall of 2001 and turned over to the United States. In 2002, he was sent by the U.S. to its new Guantanamo Bay detention camp at its naval base in Cuba.
In July 2004, Hamdan was charged with conspiracy to commit terrorism and the Bush administration made arrangements to try him before a military commission, established by the Department of Defense under Military Commission Order No. 1 of March 21, 2002. He was assigned a defense counsel, LCDR Charles D. Swift from the Navy JAG, who with a legal team filed a petition for Hamdan in US District Court for a writ of habeas corpus, challenging the constitutionality of the military commission, and saying that it lacked the protections required under the Geneva Conventions and United States Uniform Code of Military Justice.
Following the U.S. Supreme Court ruling in Rasul v. Bush (2004), which established that detainees had the right of habeas corpus to challenge their detention, Hamdan was granted a review before the Combatant Status Review Tribunal. It determined that he was eligible for detention by the United States as an enemy combatant or person of interest.
The defendants in this case included many United States government officials allegedly responsible for Hamdan's detention; the short name of the case includes only the first-named defendant, then-Secretary of Defense Donald Rumsfeld.
District and Appeals Court rulings
After reviewing Hamdan's habeas petition, Judge James Robertson of the United States District Court for the District of Columbia ruled in the detainee's favor. He found that the United States could not hold a military commission unless it was first shown that the detainee was not a prisoner of war.
On July 15, 2005, a United States Court of Appeals for the District of Columbia Circuit three-judge panel: A. Raymond Randolph, John Roberts and Stephen F. Williams, unanimously reversed the decision of the District Court. Judge Randolph, who wrote the decision, cited the following reasons for the legality of the military commission:
Military commissions are legitimate forums to try enemy combatants because they have been approved by Congress.
The Geneva Convention is a treaty between nations and as such it does not confer individual rights and remedies.
Even if the Geneva Convention could be enforced in U.S. courts, it would not be of assistance to Hamdan at the time because the war against al-Qaeda was not between two countries, and the Convention guarantees only a certain standard of judicial procedure—a "competent tribunal"—without speaking to the jurisdiction in which the prisoner must be tried.
Under the terms of the Geneva Convention, al Qaeda and its members are not covered.
Congress authorized such activity by statute.
The judicial branch of the United States government cannot enforce the Convention, thus invalidating Hamdan's argument that he cannot be tried until after his prisoner-of-war status is determined.
Supreme Court decision
On November 7, 2005, the Supreme Court granted certiorari to hear the case. The petition was filed on behalf of Hamdan by Neal Katyal of Georgetown University Law Center and Lt. Commander Charles Swift of the U.S. Navy, an alumnus of Seattle University School of Law. The Seattle law firm Perkins Coie provided the additional legal counsel for Hamdan.
The case was argued before the court on March 28, 2006. Katyal argued on behalf of Hamdan, and Paul Clement, the Solicitor General of the United States, argued on behalf of the government. Chief Justice Roberts recused himself because he had previously ruled on this case as part of the three judge panel on the United States Court of Appeals for the District of Columbia Circuit. Justice Antonin Scalia had made allegedly improper comments about the decision of the case prior to hearing oral arguments, such as, "I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy"; as a result critics called for Scalia to recuse himself. He did not.
The Supreme Court announced its decision on June 29, 2006. The Court reversed the ruling of the Court of Appeals, holding that President George W. Bush did not have authority to set up the war crimes tribunals and finding the special military commissions illegal under both military justice law and the Geneva Conventions.
Stevens' opinion for the Court
Associate Justice John Paul Stevens wrote the opinion for the Court, which commanded a majority only in part.
The Stevens opinion began with the issue of jurisdiction, denying the U.S. government's motion to dismiss under Section 1005 of the Detainee Treatment Act of 2005 (DTA), which gave the D.C. Circuit Court of Appeals "exclusive" jurisdiction to review decisions of cases being tried before military commissions. Congress did not include language in the DTA that might have precluded Supreme Court jurisdiction, making the government's argument to the Court unpersuasive. The government's argument that Schlesinger v. Councilman 420 U.S. 738 (1975) precludes Supreme Court review was similarly rejected. Councilman applied to a member of the U.S. military who was being tried before a military "court-martial". In contrast, Hamdan is not a member of the U.S. military, and would be tried before a military "commission", not a court-martial. To the court, the more persuasive precedent was Ex parte Quirin, in which the court recognized its duty to enforce relevant Constitutional protections by convening a special Term and expediting review of a trial by military convention. The opinion explicitly stated that, because DTA did not bar it from considering the petition, it was unnecessary to decide whether laws unconditionally barring habeas corpus petitions would unconstitutionally violate the Suspension Clause.
The opinion then addressed the substantive issues of the case. It explicitly did not decide whether the President possessed the Constitutional power to convene military commissions like the one created to try Hamdan. Even if he possessed such power, those tribunals would either have to be sanctioned by the "laws of war", as codified by Congress in Article 21 of the Uniform Code of Military Justice (UCMJ), or authorized by statute. As to the statutory authorization, there is nothing in the Authorization for Use of Military Force (AUMF) "even hinting" at expanding the President's war powers beyond those enumerated in Art. 21. Instead, the AUMF, the UCMJ, and the DTA "at most acknowledge" the President's authority to convene military commissions only where justified by the exigencies of war, but still operating within the laws of war.
As to the laws of war, to the majority these necessarily include the UCMJ and the Geneva Conventions, each of which require more protections than the military commission provides. The UCMJ, Art. 36 (b), requires that rules applied in courts-martial and military commissions be "uniform insofar as practicable". Stevens found several substantial deviations, including:
The defendant and the defendant's attorney may be forbidden to view certain evidence used against the defendant; the defendant's attorney may be forbidden to discuss certain evidence with the defendant;
Evidence judged to have any probative value may be admitted, including hearsay, unsworn live testimony, and statements gathered through torture; and
Appeals are not heard by courts, but only within the Executive Branch (with an exception not here relevant).
These deviations made the commissions violate the UCMJ.
The majority also found that the procedures in question violate the "at least" applicable Common Article 3 of the Geneva Conventions. It found that the D.C. Court of Appeals erred in concluding that the Conventions did not apply:
It erroneously relied on Johnson v. Eisentrager, which does not legally control in Hamdan's case because there was then no deviation between the procedures used in the tribunal and those used in courts-martial;
It erroneously ruled that the Geneva Conventions do not apply because Art. 3 affords minimal protection to combatants "in the territory of" a signatory; and
Those minimal protections include being tried by a "regularly constituted court", which the military commission is not.
Because the military commission does not meet the requirements of the Uniform Code of Military Justice or of the Geneva Convention, it violates the laws of war and therefore cannot be used to try Hamdan.
The Court did not hear the question that had decided the district court opinion, namely that Hamdan was entitled to a GCIII Art. 5 hearing instead of a Combatant Status Review Tribunal.
Hamdan observes that Article 5 of the Third Geneva Convention requires that if there be "any doubt" whether he is entitled to prisoner-of-war protections, he must be afforded those protections until his status is determined by a "competent tribunal". Because we hold that Hamdan may not, in any event, be tried by the military commission the President has convened pursuant to the November 13 Order and Commission Order No. 1, the question whether his potential status as a prisoner of war independently renders illegal his trial by military commission may be reserved.
Plurality sections
Because Justice Anthony Kennedy did not join Stevens' opinion as to several parts, largely on the grounds of judicial parsimony (that is, having decided that the military commissions had no foundation, the core question of the case was decided and the Court did not need to go further), those sections were without a majority in support.
In one of these sections, Stevens addressed the issue of whether military commissions can try conspiracy charges. He argued that military commissions are not courts of general jurisdiction, which are able to try any crime; that the court has traditionally held that offenses against the law of war are triable by military commission only when they are clearly defined as war crimes by statute or strong common law precedent (cf. Quirin). Finally, he found that there was no support in statute or court precedent for law-of-war military commissions trying charges of "conspiracy", either in the Geneva Conventions, in the earlier Hague Conventions or at the Nuremberg Trials.
Addressing the dissents
As is common in opinions to which there are dissents, Stevens' opinion addressed the major arguments in dissent. For example:
The majority opinion says that Justice Scalia's argument concerning the jurisdiction-stripping statute (section 1005e(1)) ignores the effective date provision of that very statute (section 1005(h)).
The majority opinion says that the government's contention that the war started on September 11, 2001, undercuts Justice Thomas' argument that it started in 1996.
The majority opinion notes that language in the Congressional Record that the Scalia dissent cites was inserted into the Record after the legislation had been enacted, by Senators Lindsey Graham (R-SC) and Jon Kyl (R-AZ), and includes falsified quotations attributed to other persons.
Breyer's concurrence
Justice Breyer wrote a one-page concurring opinion, joined by Justices Kennedy, Souter, and Ginsburg. Breyer contended that the commissions are not necessarily categorically prohibited, as long as Congress approves them:
Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary. ... Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.
Kennedy's concurrence
Justice Kennedy wrote an opinion concurring in part, joined as to parts I and II by Justices Souter, Ginsburg, and Breyer.
In Part One of Kennedy's concurrence, he raises his concern for the separation of powers; specifically, how one branch can control all the elements of a case, including avenues of review and appeal.
Part Two describes the differences between the procedures of the military commissions and the procedures prescribed by the UCMJ (fewer jury members, different rules of evidence, etc.). These differences demonstrate that the commissions do not operate under the rules of military courts-martial, and raise issues of neutrality with respect to the military judges involved. The negation of fairness safeguards renders the commission a judicial entity which is not a "regularly constituted court", as required in the Geneva Convention. In sum, Kennedy writes that the commission exceeds congressional bounds, though the Congress is free to re-write the law as they see fit.
The third and final Part lists some of Kennedy's reservations. He would not say that the defendant must be present at all stages of the trial. There should be a reluctance to consider the applicability of Article 75 of Protocol I, since the U.S. never signed it and thus it is not binding. Kennedy writes that he feels it was not necessary to delve into the validity of the conspiracy charge, and he expresses no view on the merits of the other limitations of the commission noted in Part V of the Decision.
Scalia's dissent
Justice Scalia wrote a dissenting opinion that focuses primarily on issues of jurisdiction, and was joined by Justices Thomas and Alito.
Scalia calls the Court's conclusion to hear the case "patently erroneous". His first argument relies on the part of the Detainee Treatment Act (DTA) (effective December 30, 2005) that states "[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." §1005(e)(1), 119 Stat. 2742. Scalia's opinion is that this clause suffices to deny the Supreme Court jurisdiction over the case, calling the majority's reading of the effectiveness provisions of §1005(h), a "mess". He cites Bruner v. United States, 343 U.S. 112 (1952), and other cases granting "immediate effect in pending cases, absent an explicit statutory reservation". He wrote that in interpreting the language in the DTA, the majority ignored Supreme Court precedents which established that a statute excluding jurisdiction applies to pending cases unless it has clear language saying it does not. Scalia claimed that the majority had made this interpretation "for the flimsiest of reasons".Mahler, Jonathan (2008). He was referring to the majority's use of Senate floor debate records to bolster their interpretation, writing that it "makes no difference" that the language in support of his position was inserted into the Congressional Record after the law was voted upon. He also accuses the majority of ignoring the President's signing statement.
Furthermore, he anticipates that expanding the jurisdictions able to hear writs of habeas corpus from Guantanamo Bay would create excessive load on the court system.
In addition, Scalia states that the original military tribunal was not shown to be inadequate. Regarding the application of the Suspension Clause of the Constitution, Scalia points to Johnson v. Eisentrager.
In its second major argument, Scalia's opinion argues that petitioners such as Hamdan held outside the territorial jurisdiction of the United States lack the right to the writ of habeas corpus. He points in a footnote to Hamdi v. Rumsfeld, under which he claims Hamdan "is already subject to indefinite detention" "after an adverse determination by his CSRT".
Finally, Justice Scalia chastises the Court for taking equity jurisdiction of the case and draws an analogy with Schlesinger v. Councilman, 420 U.S. 738 (1975). In that case, the Supreme Court declined passing judgment on the decision of a military court-martial before it finished its work; Scalia argues that likewise, the military commissions in Cuba have not yet ended their work regarding Hamdan and therefore should not be subject to judicial oversight.