Hamdan v. Rumsfeld, 548 U.S. 557 (2006), is a United States Supreme Court case holding that military commissions set up by the Bush administration to try detainees at the Guantanamo Bay detention camp violated both the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions ratified by the U.S.
Hamdan raised 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 trial by 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, the Court issued a 5–3 decision on June 29 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 therefore that Hamdan's trial, having violated the rights and procedures under both bodies of law, was illegal.
Background
Salim Hamdan was a citizen of Yemen who had 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, Lieutenant Commander Charles Swift from the Navy Judge Advocate General's Corps, who with a legal team filed a petition for a writ of habeas corpus for Hamdan in United States District Court, challenging the constitutionality of the military commission and arguing that it lacked the protections required for defendants under the Geneva Conventions and United States Uniform Code of Military Justice.
Following the 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 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 his favor on November 9, 2004. 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 of A. Raymond Randolph, John Roberts, and Stephen F. Williams unanimously reversed Judge Robertson's decision. Judge Randolph, who wrote the decision, cited the following reasons for the legality of the military commission: Military commissions were legitimate forums to try enemy combatants because they had been approved by Congress; The Geneva Conventions were a treaty between nations and as such did not confer individual rights and remedies; Even if the Geneva Conventions could be enforced in U.S. courts, they would not be of assistance to Hamdan at the time because the war against al-Qaeda was not between two countries and the Conventions guaranteed only a certain standard of judicial procedure—a "competent tribunal"—without speaking to the jurisdiction in which the prisoner would be tried; Under the terms of the Geneva Conventions, al-Qaeda and its members were not covered; Congress had authorized such activity by statute; and The judicial branch of the United States government could not enforce the Geneva Conventions, invalidating Hamdan's argument that he could not be tried until after his prisoner-of-war status was 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 Lieutenant Commander Charles Swift of the U.S. Navy, an alumnus of Seattle University School of Law. The Seattle law firm Perkins Coie provided 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.Hamdan, Salim v. Rumsfeld, Donald (Secy. of Defense) Medill, Northwestern University, November 11, 2005. Chief Justice John 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. Critics called unsuccessfully for Justice Antonin Scalia to recuse himself as well due to allegedly having made 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."
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.
Majority opinion
Justice John Paul Stevens wrote the opinion for the Court, in which he was joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer, and in part by Justice Anthony Kennedy.
Stevens 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. He found the government's argument to the Court unpersuasive because Congress did not include language in the DTA that might have precluded Supreme Court jurisdiction. He also rejected the government's argument that Schlesinger v. Councilman (1975) precluded Supreme Court review because Councilman applied to a member of the U.S. military who was being tried before a military court-martial, while Hamdan was not a member of the U.S. military and would be tried before a military commission rather than a court-martial. To Stevens, the more persuasive precedent was Ex parte Quirin (1942), in which the court had recognized its duty to enforce relevant Constitutional protections by convening a special Term and expediting review of a trial by military convention. He explicitly stated that, because the 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. He also stated that Justice Antonin Scalia's dissenting argument concerning the jurisdiction-stripping statute ignored the effective date provision of that statute. He noted that language in the Congressional Record that Scalia's dissent cited had been inserted into the Record after the legislation had been enacted by Senators Lindsey Graham (R-SC) and Jon Kyl (R-AZ) and included falsified quotations attributed to other persons. He also stated that the government's contention that the war started on September 11, 2001, undercut Justice Clarence Thomas' argument that it had started in 1996.
Stevens then addressed the substantive issues of the case. He explicitly did not decide whether the president possessed the constitutional power to convene military commissions like the one created to try Hamdan. Even if the president possessed such power, Stevens argued, 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 was 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. Stevens noted that instead, the AUMF, UCMJ, and 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.
Stevens then stated that the laws of war necessarily included the UCMJ and the Geneva Conventions, each of which requires more protections than the military commission provided. Article 36(b) of the UCMJ requires that rules applied in courts-martial and military commissions be "uniform insofar as practicable". He found several substantial deviations, including: The defendant and their 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 Appeals are not heard by courts, but only within the executive branch (with an irrelevant exception)
These deviations made the commissions violate the UCMJ.
Stevens also found that the procedures in question violated the Common Article 3 of the Geneva Conventions, which it found "at least" applicable. He found that the D.C. Court of Appeals had erred for several reasons in concluding that the Conventions did not apply: It erroneously relied on Johnson v. Eisentrager, which did 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 did not apply because Art. 3 afforded minimal protection to combatants "in the territory of" a signatory; and Those minimal protections included being tried by a "regularly constituted court", which the military commission was not. Because the military commission did not meet the requirements of the UCMJ or of the Geneva Convention, Stevens held that it violated the laws of war and therefore could not be used to try Hamdan.
The Court did not hear the question that had decided the district court opinion, namely whether Hamdan was entitled to a GCIII Art. 5 hearing instead of a Combatant Status Review Tribunal
Plurality sections Justice Anthony Kennedy did not join Stevens' opinion as to several parts, largely on the grounds that, 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. As a result, those sections were left without a majority in support.