Hamdan v. Rumsfeld, 548 U.S. 557; 126 S. Ct. 2749; 165 L. Ed. 2d 723 (2006)

Hamdan v. Rumsfeld, 548 U.S. 557; 126 S. Ct. 2749; 165 L. Ed. 2d 723 (2006)

Facts—Salim Ahmed Hamdan, a Yemeni national held in custody at the U.S. prison in Guantanamo Bay, Cuba, and alleged to have been a member of the Taliban who served as Osama bin Laden’s personal driver, filed for a writ of habeas corpus against Secretary of Defense Donald Rumsfeld to challenge the executive’s power of trial by military commission for offenses connected to terrorism. A U.S. district court granted him a writ of habeas corpus, which the District of Columbia Circuit Court reversed.

Questions—Was Hamdan entitled to a writ of habeas corpus? Was the military commission that was constituted to try him constitutional?

Decisions—Yes; No.

ReasonsJ. Stevens (5–3, with C.J. Roberts recusing himself) thought the military commission lacked power to try Hamdan under the Uniform Code of Military Justice and the Geneva Conventions; 4 [of 8] justices did not think the offenses with which he was charged were offenses under the law of war that such a commission could try. In 2001, President Bush issued a comprehensive military order to govern the “Detention, Treatment, and Trial of Certain Non- Citizens in the War Against Terrorism,” and on July 3, 2003, Bush announced his intention to try Hamdan and five other Guantanamo Bay detainees by military commission. Hamdan was charged with joining a criminal enterprise involving terrorism.

A Combatant Status Review Tribunal (CSRT) had already decided that Hamdan was an “enemy combatant.” The government filed a motion to dismiss his petition for habeas corpus on the basis of the Detainee Treatment Act of 2005 (DTA). It contends that the section entitled “Judicial Review of Detention of Enemy Combatants,” was designed to withdraw jurisdiction even over pending cases, but Stevens believed that “ordinary principles of statutory construction suffice to rebut the Government’s theory.” He cited a “presumption against retroactivity” absent specific language that he found missing from part of this bill. The government further argues that the Court should await a final outcome of the military court proceedings before granting review, but Stevens rejects this argument, ruling that prior cases arguing for such abstention are not directly relevant. Most notably, the Court expedited review in the Quirin Case, involving German saboteurs. In thus reviewing the case, Stevens observes that “The military commission, neither mentioned in the Constitution nor created by statute, was born of military necessity.” It is still unclear whether the President may convene such tribunals without congressional approval, but “we held in Quirin that Congress had, through Article of War 15, sanctioned the use of military commissions in such circumstances” [that is, in cases involving “offenders or offenses against the law of war”]. This did not provide authority to create such commissions in any circumstances. Military commissions have been used in three cases: as substitutes for civilian courts during times of martial law; “as part of a temporary military government over occupied enemy territory or territory regained from an enemy where civilian government cannot and does not function”; and “an incident to the conduct of war’ when there is a need ‘to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war.’” Quirin is representative of the latter, although it also “represents the high-water mark of military power to try enemy combatants for war crimes.” Colonel William Winthrop noted four preconditions of such tribunals. These involve offenses committed within a military commander’s jurisdiction; during the war; involving violations of the laws of war; involving “violations of the laws and usages of war cognizable by military tribunals only” and breaches of orders or regulations not triable by court-martial. Hamdan, however, is being charged with offenses that began prior to the beginning of hostilities, and the offenses are not properly violations of the laws of war. Extending this power risks “concentrating in military hands a degree of adjudicative and punitive power in excess of that contemplated either by statute or by the Constitution.”

The charge of conspiracy is not an offense against the rule of war, nor is it recognized by either the Geneva or Hague Conventions. Nor did the Court address conspiracy when deciding the Quirin Case. Military commissions are limited to trying overt acts that occurred during the conflict rather than conspiracies that preceded it. In any event, the commission lacks the power to proceed in this case because the procedures that the government has established are inadequate. In permitting hearsay evidence and evidence secured through coercion and in refusing to open some proceedings to the defendant, the commission would deny Hamdan due process. Moreover, waiting until a verdict is rendered to review the verdict could provide inadequate relief. The proceed- ings of military commissions should conform “insofar as practicable” with those of courts-martial. Here the President’s “practicability” determination “is insufficient to justify variances from the procedures governing courts-martial.” Stevens further denied that Johnson v. Eisentrager (1950), an appeal by Germans held at a military base after World War II, stood for a different principle. Stevens emphasized that his decision does not prohibit the government from detaining Hamdan “for the duration of active hostilities in order to prevent. . . harm,” but in meting out criminal punishment, “the Executive is bound to comply with the rule of law that prevails in this jurisdiction.”

J. Breyer, concurring. “Congress has not issued the Executive a ‘blank check.’” “Concentration of powers puts personal liberty in peril of arbitrary action by officials.” The procedures here must be compared to those involving court-martials. Hamdan has been in U.S. custody for an extended period, presenting “no exigency requiring special speed or precluding careful consideration of evidence.” Breyer pointed to a number of structural differences between the military commission in this case and regular court-martials. Congress could change existing limits, but they remain until it does so. Breyer would not, however, decide at this point whether an accused has to be present at all stages of a trial, whether the Geneva Convention is binding, the validity of the conspiracy charges against Hamdan, or other limitations that J. Stevens believed were elements of the common law of war.

J. Scalia, dissenting. The Detainee Treatment Act unambiguously withdraws habeas corpus jurisdiction from courts in this case and courts should heed its “plain meaning,” as they have done in previous cases. The Court’s use of legislative history is particularly egregious in that it elevates self-serving statements by partisans. The provision does not violate the Suspension Clause because Congress provides collateral remedies. “Even if Congress had not clearly and constitutionally eliminated jurisdiction over this case, neither this Court nor the lower courts ought to exercise it.” The political branches should be exercising primary responsibility in this area.

J. Thomas, dissenting. The president’s unitary character, and the decisiveness, secrecy, and dispatch with which he can operate give him primary responsibility in this area, and his powers are strengthened where, as here, he is acting with congressional authorization. This case falls under Winthrop’s criteria. The conflict at issue dates at least as far back as bin Laden’s Declaration of Jihad in August 1996. Hamdan has been properly charged with “mem- bership in a war-criminal enterprise and conspiracy to commit war crimes.” These have long been understood to be war offenses. The president is in a far better position to judge “military necessity” than is the Court. The Court’s determination “that conspiracy to massacre innocent civilians does not violate the laws of war . . . is unsustainable.” Nor do the proceedings violate the Geneva Convention. The president can adjust proceedings to contingencies. Hamdan’s plea for review is not ripe. “But there is neither a statutory nor historical requirement that military commissions conform to the structure and practice of courts-marital. A military commission is a different tribunal, serving a different function, and thus operates pursuant to different procedures.” The procedures established in this case are fair, and that is sufficient.

J. Alito, dissenting. The military commission “is ‘a regularly constituted court.’” It does not need to be identical to courts-martial. “It makes no sense to strike down the entire commission structure based on speculation that some evidence might be improperly admitted in some future case.”

Note—A military commission eventually convicted Hamdan of one charge but not of conspiracy, and he was sent to Yemen after his release from Guantanamo.

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