Hamdan v. Rumsfeld

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.

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. 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.

Breyer's concurrence

Justice Breyer wrote a one-page concurring opinion, joined by Justices Kennedy, Souter, and Ginsburg.

Kennedy's concurrence

150px|thumb|Justice Kennedy

Justice Kennedy wrote an opinion concurring in part, joined as to parts I and II by Justices Souter, Ginsburg, and Breyer. Further, because the Bush Administration might conduct the hundreds of such tribunals according to the same procedures, Alito concluded that "it seems that petitioner's tribunal, like the hundreds of others respondents propose to conduct, is very much regular and not at all special."

Alito wrote that "the commissions were appointed, set up, and established pursuant to an order of the President, just like the commission in Ex parte Quirin, 317 U. S. 1 (1942), and the Court acknowledges that Quirin recognized that the statutory predecessor of 'preserved' the President's power 'to convene military commissions.'" Alito disagreed with Kennedy's assertion that "an acceptable degree of independence from the Executive is necessary to render a commission 'regularly constituted' by the standards of our Nation's system of justice", arguing that Kennedy "offers no support for this proposition (which in any event seems to be more about fairness or integrity than regularity)", and further arguing that the commission in Quirin was no different from the present case.

Finally, Alito wrote that the commission procedures as a whole do not provide a basis for deeming the commissions to be illegitimate. He points to two procedural rules, which the Court found fault with: First, the rule "allowing the Secretary of Defense to change the governing rules 'from time to time; and second, the rule that "permits the admission of any evidence that would have 'probative value to a reasonable person. Alito asserts these rules cannot make the commissions illegitimate.

On the first rule Alito argued that not all changes during the course of a trial prejudice the defendant, and that some may even help the defendant. In addition, "If a change is made and applied during the course of an ongoing proceeding and if the accused is found guilty, the validity of that procedure can be considered in the review proceeding for that case."

On the second rule, Alito argued that this rule does not violate the international standard incorporated into Common Article 3, because "rules of evidence differ from country to country" and "much of the world does not follow aspects of our evidence rules, such as the general prohibition against the admission of hearsay".

Reaction to the decision

The impact of the decision on the petitioner, Hamdan, was that he could still be tried; however, his trial needed to be in a court, such as a military court-martial, or possibly a commission that has court-like protections.

Shortly thereafter, the Military Commissions Act of 2006 may have raised again the issue of which court would hear cases such as Hamdan's. The U.S. Department of Justice has filed notice with several federal judges, and given notice to hundreds of detainees, that the habeas petitions of alien unlawful enemy combatants (or those whose status is to be determined) are not within the jurisdiction of those courts.

The passage and signing of the Act follows through on President Bush's expressed intention to get explicit Congressional authorization to use military tribunals. Press Secretary Tony Snow echoed the plan to appeal to Congress.

However, even among Senate Republicans, there were conflicting views. Senators Arlen Specter and Lindsey Graham (the latter a former military prosecutor) indicated Congress would work quickly to authorize tribunals, while influential Senator John Warner suggested a cautious and deliberative response.

On July 7, 2006, the United States Department of Defense issued a memo titled "Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense". This was followed by a July 11, 2006, statement by the Bush administration that all detainees at Guantanamo Bay and in U.S. military custody everywhere are entitled to humane treatment under the Geneva Conventions. This declaration appears not to cover CIA detainees and is ambiguous with respect to the interpretation of Common Article 3 and the definition of "humane treatment".

There were some indications that the other detainees being held at facilities throughout the world (e.g., Bagram Air Base and black sites), might use the Supreme Court's ruling to challenge their treatment. Their reasoning may be that since the Geneva Conventions afforded protection to Hamdan, its other protections might be effective for them as well. Commentators expressed mixed opinions about the strength of this argument.

Implications for theories of executive power

The decision may have important implications for other disputes relating to the extent of executive power and the unitary executive theory. In particular, it may undermine the Bush administration's legal arguments for domestic wiretapping by the National Security Agency without warrants as required by the Foreign Intelligence Surveillance Act.

Charges dismissed/new charges

On June 5, 2007, Hamdan and Canadian youth Omar Khadr, had all charges against them dismissed. The judges presiding over their military commissions ruled that the Military Commissions Act did not give them the jurisdiction to try Hamdan and Khadr, because it only authorized the trial of "unlawful enemy combatants". Hamdan and Khadr's Combatant Status Review Tribunals, like those of all the other Guantanamo captives, had confirmed them as "enemy combatants".

In December 2007, a tribunal determined that Hamdan was an "unlawful enemy combatant". In August 2008, he was convicted by the military commission of the lesser of two charges and received a sentence of 66 months, reduced by time served to five and a half months. In November 2008, the US transferred him to Yemen, where he served his last month. After release, he joined his family in Sana. In October 2012, the US Appeals Court for the District of Columbia, overturned Hamdan's conviction, acquitting him of the charge.

References

External links

Court documents

 
 
Groups File Amicus Briefs in Case Involving Osama Bin Laden's Driver, Physicians for Human Rights
Petition for a writ of certiorari: Brief for the respondents in opposition, US Department of Justice, December 2004.
 , U.S. Court of Appeals for the District of Columbia Circuit, July 15, 2005.
BRIEF OF LEGAL SCHOLARS AND HISTORIANS AS AMICI CURIAE IN SUPPORT OF PETITIONER, SALIM AHMED HAMDAN, v DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al., No. 05-184.

Pentagon documents

Department of Defense Military Commission Order No. 1, March 21, 2002

News reports, commentary

High Court Rejects Detainee Tribunals, Washington Post, June 29, 2006.
Hamdan v. Rumsfeld: The Supreme Court Affirms International Law, JURIST, June 30, 2006.
Hamdan, Common Article 3 and the True Spirit of the Law of War, JURIST, July 3, 2006.
U.S. Charges Yemeni Described as Bin Laden Bodyguard, Washington Post, July 14, 2004.
Fourth Guantanamo Detainee Is Charged, Washington Post, July 14, 2004.
Bin Laden driver charged in first Guantanamo hearing, USA Today, August 25, 2004.
Court permits terrorists to be tried by military commissions, Washington Legal Foundation, July 15, 2005.
Protecting America's Freedom: National Security and Defense, Washington Legal Foundation, July 15, 2005.
"The Nation's Second-Highest Court" Upholds Military Commissions, FindLaw, July 20, 2005.
Understanding Hamdan v. Rumsfeld
Why Hamdan is Right about Conspiracy Liability, JURIST
Why the Court Said No, David D. Cole, New York Review of Books, August 10, 2006.