Hamdan v. Rumsfeld

Issues

Does the President have the power to establish military commissions to try petitioner and others similarly situated for alleged war crimes in the “war on terror”? Does the 1949 Geneva Convention and its Common Article 3 requirement of sentencing by “regularly constituted courts” protect persons from such commissions?

Oral argument:

March 28, 2006

Court below:

United States Court of Appeals for the D.C. Circuit

Salim Ahmed Hamdan, alleged former aide to terrorist leader Osama bin Laden, challenges the legality of the military commission that seeks to establish its jurisdiction to try him as an alleged enemy combatant in connection with the September 11th attacks. The government responds that the President has the constitutional, congressional, and statutory authority to create military commissions and to use them in the ongoing conflict with al Qaeda. This case involves the critical question of allocation of power among Congress, the President, and the federal courts in the “war on terror.” It also presents issues arising under the 1949 Geneva Convention. In deciding this case, the Supreme Court will have to balance the interests of national security versus the preservation and promotion of individual human rights.

Questions as Framed for the Court by the Parties

1. Whether the military commission established by the President to try petitioner and others similarly situated for alleged war crimes in the “war on terror” is duly authorized under Congress’s Authorization for the Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224; the Uniform Code of Military Justice (UCMJ); or the inherent powers of the President?

2. Whether petitioner and others similarly situated can obtain judicial enforcement from an Article III court of rights protected under the 1949 Geneva Convention in an action for a writ of habeas corpus challenging the legality of their detention by the Executive branch?

Facts

This case comes before the Supreme Court more than four years after the most violent act of terrorism ever committed on American soil. See Brief for the Respondents in Opposition at 2. The September 11th attacks occurred on Tuesday, September 11, 2001, when hijackers crashed two commercial airliners into the World Trade Center in Manhattan, New York City, and one airliner into the Pentagon building in Washington, D.C. See Id. The resulting 9/11 Commission Report attributed the attacks to al Qaeda, an Islamic fundamentalist group led by Osama bin Laden.

In response to the September 11th attacks, Congress immediately enacted a resolution expressing its support of the President’s use of “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001). On November 13, 2001, President George W. Bush issued an order authorizing the establishment of military commissions to hear war crimes charges brought against those captured in connection with the war against al Qaeda. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833, 57,834 (Nov. 13, 2001).

At the center of the current legal maelstrom is Salim Ahmed Hamdan, whom the government alleges served as Osama bin Laden’s personal driver and bodyguard in Afghanistan between 1996 and 2001, delivered weapons to al Qaeda members, and trained at the al Qaeda-sponsored al Farouq camp. See Hamdan v. Rumsfeld, 415 F.3d 33, 35–36 (2005). In November 2001, Afghani militia forces captured Hamdan in Afghanistan and turned him over to the American military. See Id. at 35. The military transported Hamdan to the Guantánamo Bay Naval Base in Cuba and placed him in a general detention facility known as Camp Delta. See Id.

On July 3, 2003, the President determined “that there is reason to believe that [Hamdan] was a member of al Qaeda or was otherwise involved in terrorism directed against the United States.” See Id. This finding brought Hamdan within the compass of the presidential military order of November 13, 2001. See Id. Accordingly, the government designated Hamdan for trial before a military commission. See Id. In December 2003, the military removed Hamdan from the general population at the Guantánamo Bay facility and placed him in solitary confinement in Camp Echo. See Id. In April 2004, Hamdan filed this petition for habeas corpus. See Id.

While his habeas petition was pending before the U.S. District Court for the District of Columbia, the government formally charged Hamdan with conspiracy to commit attacks on civilians and civilian objects, murder, destruction of property by an unprivileged belligerent, and terrorism. See Id.

In a separate and independent case in 2004, the Supreme Court decided that a U.S. citizen detainee who sought to challenge his classification as an enemy combatant was entitled by due process to a meaningful opportunity to contest the factual basis for his detention before a neutral decision-maker. See Hamdi v. Rumsfeld, 542 U.S. 507, 537 (2004). In response to the Hamdi ruling, Hamdan received a formal hearing before a Combatant Status Review Tribunal. See Hamdan v. Rumsfeld, 415 F.3d at 36. The Tribunal affirmed his status as an enemy combatant, “either a member of or affiliated with Al Qaeda,” for whom continued detention was required. See Id.

On November 8, 2004, the U.S. District Court for the District of Columbia granted in part Hamdan’s habeas petition. See Id. Among other things, the district court held that military commissions were not competent to try Hamdan unless a competent tribunal determined that he was not a prisoner of war under the 1949 Geneva Convention. Thus, the court enjoined Secretary of Defense Donald Rumsfeld from conducting any further military commission proceedings against Hamdan. See Id.

The government appealed the district court’s decision. See Id. The U.S. Court of Appeals for the District of Columbia Circuit reversed the district court and held that Congress authorized the military commission that was to try Hamdan. See Id. at 38. Additionally, the appeals court found that because Hamdan was a member of al Qaeda, the Geneva Conventions did not apply to him and he could not assert the unlawfulness of the military commissions on that basis. See Id. at 40. Hamdan then petitioned for writ of certiorari and the Supreme Court granted his petition on November 7, 2005. See Supreme Court Docket for Hamdan v. Rumsfeld. Chief Justice John Roberts, one of the three D.C. Circuit judges who decided the case, has recused himself from this decision. See Id.

Analysis

The Supreme Court will address several legal issues brought to light by Hamdan’s petition. First, it will determine whether Congress’s Authorization for the Use of Military Force (“AUMF”), the Uniform Code of Military Justice (“UCMJ”), and/or the inherent powers of the President authorize the creation and use of military commissions to try “enemy combatants” in the “war on terror.” The Court may hold for the government by finding authorization in at least one of these grants of power, or it may find that none confer such power, and thus rule for Hamdan.

The Court will then address the relevancy of the 1949 Geneva Convention to Hamdan’s detention and trial by military commission, and it will potentially answer the important question of whether Hamdan and other similarly situated detainees are entitled to the Convention’s Common Article 3 requirement of trial and sentencing by a “regularly constituted court.”

Authorization for Use of Military Force (“AUMF”)

Congress’ Authorization for Use of Military Force provides that “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 . . . .” See Pub. L. No. 107-40 § 2. The most direct attack on the proposition that the AUMF authorizes military commissions is that the resolution, read literally, allows only force—or military action—as opposed to criminal punishment incident to such action. See Brief for Petitioner at 15. In fact, the brief resolution makes no mention at all regarding military commissions or any process by which to detain, try, or convict captured persons. See Brief of the Brennan Center for Justice as Amicus Curiae Supporting Petitioner at 6 [hereinafter “Amicus Brief for the Brennan Center”]. This proposition also finds support in the considerable legislative debates following the September 11 attacks and preceding the passage of the AUMF. See Brief for Petitioner at 14 n.3 (“It was not the intent of Congress to give the President unbridled authority …”). Hamdan argues that the AUMF allows only a narrow construction of the spectrum of power granted to the President, because Congress could have explicitly conferred the power to apprehend enemies by issuing a formal declaration of war. See id. at 14–15 n.4. Even if the AUMF can be construed to authorize such power, a question remains as to whether such military commissions are necessary to try enemy combatants, who could conceivably be tried in regularly constituted Article III or court-martial proceedings. See id. at 17.

The Court of Appeals for the D.C. Circuit, however, found that the AUMF does grant to the President the additional power of establishing military tribunals to try detainees. Hamdan v. Rumsfeld, 415 F.3d 33, 37–38 (2005). Their interpretation is supported by a broader reading of the AUMF, whose preamble gives the President “authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” See Pub. L. No. 107-40 preamble. In HamdiAnchor, a plurality of the Supreme Court ruled that the scope of authority given to the President by the AUMF includes the “capture, detention, and trial of unlawful combatants.” See 542 U.S. 507, 518 (2004); Ex parte Quirin, 317 U.S. 1, 28 (1942). Other federal court decisions, holding that Congress’s intent in granting broad powers to the executive during times of war, also bolster the likelihood that the Court will give greater deference to the government’s actions in the context of the “war on terror.” See Brief Amicus Curiae of Former Attorneys General of the United States, Retired and Former Military Officers, and Former Assistant Attorney General in Support of Respondents at 20 [hereinafter Amicus Brief of Former Attorneys General].

The Uniform Code of Military Justice (“UCMJ”)

The Court will also clarify the applicability of the Uniform Code of Military Justice (“UCMJ”) to Guantánamo Bay detainees and other military combatants subject to military commissions and tribunals. The argument for Hamdan is that section 836(a) of the code prohibits procedures in military commissions from being “contrary to or inconsistent with [the UCMJ].” See Brief for Petitioner at 20; UCMJ 10 U.S.C. ch. 47 § 836(b)Anchor. Section 839 of the UMCJ provides that, save voting and deliberating in courts-martial, all proceedings much be held in the presence of the accused. See 10 U.S.C. ch. 47 § 839(b). Hamdan’s commission seems to run afoul of the UMCJ provides that, save voting and deliberating in courts-martial, all proceedings much be held in the presence of the accused. See 10 U.S.C. ch. 47 § 839(b). Hamdan’s commission seems to run afoul of the UCMJ because it has already been exempted from some procedural requirements and it’s trial procedures allow for detainee exclusion. These procedural rules strengthen the argument that the UCMJ does not grant the President authority to create military commissions. The legislative intent behind the UCMJ supports this view as well, and a draft of the code states that it was wrought with a “view to protecting the rights of those subject to the code.” See Amicus Brief for the Brennan Center at 22.

This argument was defeated at the Court of Appeals level, where the majority held that the UCMJ clearly differentiated provisions that apply to courts-martial from those that apply to military commissions. See 415 F.3d at 42–43. Both Hamdan and the government agree that the UCMJ sparingly mentions “commissions” or “tribunals,” see Brief for Petitioner at 23; Brief for Respondents at 44, but the government contends that the lack of explicit mention of commissions is intended to signify that only those enumerated sections apply to commissions. See Brief for Respondents at 44. The Court of Appeals’ decision supports the government’s contention, by further narrowing the “contrary and inconsistent” provision to only those select provisions for military commissions. See 415 F.3d at 42–43.

Plainly read, Section 839 can support either Hamdan’s or the government’s interpretation, though it arguably leans towards the latter, as § 839(a) begins by defining the proceedings in a specific court-martial trial setting. See 10 U.S.C. ch. 47 § 839(a).

The Inherent Power of the President

Hamdan’s claim that the President does not have inherent power under the Constitution to create military commissions like the one Hamdan now faces, attacks the government’s position at its very source. The Constitution grants judicial power to the “Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” See U.S. Const. art. III, § 1; Amicus Brief of Law Professors in Support of Petitioner at 4. Further, in such cases where military tribunals have been created by the executive, the overarching rationale has been that the President, as Commander-in-Chief of occupying forces, must have some efficient recourse to justice in foreign or contested territories where the regular courts of the United States do not function. See Amicus Curiae Brief of Law Professors in Support of Petitioner at 5. This exception to the rule fits awkwardly at best at the military’s holding facility at Guantánamo where the United States has the ability and wherewithal to try Hamdan in any court of competent jurisdiction that it so pleases. See id. at 5. Other amici also point out that historically, the Constitution never granted, and the framers never intended, for the President to hold such plenary powers by virtue of his Commander-in-Chief or any other Constitutionally vested power. See Brief of Amici Curiae Jack Rakove et al. for Petitioner at 20–24.

A broad reading of the constitutional power of the executive to wage war again strengthens the government’s position. Their brief points to a tribunal-like council authorized by George Washington during the Revolutionary War and to various military commissions employed to “administer justice in occupied areas” without express statutory authorization. See Brief for Respondents at 21–22. A line of World War II–era cases further expand the President’s war powers, extending them beyond the actual waging of war to the “inherent power to guard against the immediate renewal of the conflict,” to “seize and subject [enemies] to discipline measures,” and to encompass “every matter and activity so related to war as substantially to affect its conduct and progress.” See Amicus Brief of Former Attorneys General at 13. The fact that the UCMJ omits any reference to authorizing military commissions, and yet explicitly governs their procedures, arguable demonstrates Congress’s acquiescence to generations of presidents practicing their power to create military commissions. See Brief for Respondents at 23.

It seems unlikely that the Court would overturn outright such a long-exercised claim of the President’s war powers, especially considering the current political climate and the acknowledged importance of maintaining justice on and near the field of battle. However, most of the rationales advanced by the government, their amici, and the D.C. Court of Appeals point palpably to the necessity of commissions in occupied territories, where the regular courts of the United States naturally are inaccessible. The Supreme Court may limit inherent Presidential powers to such situations only, and find—perhaps with the additional motive of protecting the province of the regular courts—that there is no need, and hence no inherent authority, for the President to set up military commissions in locations and instances where Article III or court-martial courts regularly operate.

The Geneva Convention

The final question the Supreme Court will address is whether the Geneva Convention affords protections to Hamdan that the military commission violates. The 1949 Third Geneva Convention Relative to the Treatment of Prisoners of War (“GPW”)—which the United States has ratified—may protect Hamdan in two significant ways. First, GPW Article 102 may protect Hamdan because it stipulates that the President must presume Hamdan is a prisoner of war (“POW”) until otherwise determined by a competent tribunal. See Amicus Brief of Madeleine Albright et al. for Petitioner at 17. Until he has been so adjudged, Article 102 requires that Hamdan be tried in “the same courts, according to the same procedure as in the case of members of the armed forces of the Detaining Power.” See Brief for Petitioner at 37. As U.S. soldiers (the armed forces of the Detaining Power) may not be tried by military commissions, it necessarily follows that under Article 102, neither may Hamdan. To establish this protection, Hamdan may argue that the military panel which declared him an “enemy combatant” (rather than a POW) was not independent, but rather, the military officers of the tribunal were beholden to the executive. See id. at 47. Further, the government’s position could lead to the unsavory prospect of captured American soldiers being summarily denied POW status. Id. Even if the government’s determination of Hamdan as “enemy combatant” is upheld, the GPW’s requirement of a “fundamentally fair” proceeding under Common Article 3 may require the Court to hold the commission unlawful, as some amici claim that one of the government’s departures from civilized proceedings is the attainment of and allowance of “tortured testimony.” See id. at 49; Brief of Binyam Mohamed as Amicus Curiae for Petitioner at 4; Brief of Amici Curiae Human Rights First et al. for Petitioner at 14, 24.

The Geneva Convention’s Common Article 3 may also protect Hamdan, as it may prohibit “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” See 1949 Geneva Convention, IV, art. 3(1)(d) (emphasis added). The government concedes that military commissions are not “regularly constituted courts,” but it argues that Hamdan does not qualify for protection under the Geneva Convention. First, the government may take the Court of Appeals’ position that the Geneva Conventions, though binding on nations, do not give rise to individually enforceable rights through actions of habeas corpus. See Brief for Respondents at 30. Even if the Geneva Conventions do give rise to individual substantive rights, the government may rely on the President’s determination that the Convention generally does not apply to the war on terror, because “al Qaeda is not a High Contracting Party to [the Convention].” See Amicus Brief of Former Attorneys General at 24. It would be difficult for the government to conduct operations against a clandestine, amorphous enemy if it had to recognize the enemy for treaty purposes in the same way as it does legitimate nations. Finally, the nature of al Qaeda may have a direct effect on Hamdan’s status, since al Qaeda operatives (assuming the Court determines that Hamdan is, in fact, a member) “do not, as a group, meet the most basic requirement to trigger the benefits of the [Geneva] Convention.” See id. Notably, the terrorist organization is not a signatory to the Convention, and terrorists do not “wear insignia; bear arms openly, and obey the laws of war.” Id. As such, the government would have the Court bypass the Geneva Convention analysis completely, and instead determine the merits on whether there is inherent or statutory authorization for the use of a military commission trial against Hamdan and other detainees at Guantánamo and presumably worldwide.

Discussion

Hamdan v. Rumsfeld is one of several cases to reach the Supreme Court challenging the Bush administration’s conduct in the “war on terror”. See e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 537 (2004); Rasul v. Bush, 542 U.S. 466 (2004); Rumsfeld v. Padilla, 542 U.S. 426 (2004). In deciding this case, the Supreme Court will define “the relationship between the President’s constitutional powers as Commander-in-Chief and the existing constitutional, statutory, and international rules and tribunals that govern the conduct of war.” Statement of 450 Professors of Law on Hamdan v. Rumsfeld.

Hamdan, an alleged former aide to terrorist leader Osama bin Laden,challenges the President’s use of special military commissions to try foreign terror suspects. See Brief for Petitioner at 9. Commission trials are an alternative forum to civilian courts. See Id. at 30. According to Hamdan, commission trials differ from regular courts’ established rules and routines; for instance, a commission trial would exclude him from portions of his own trial, permit the admission of unsworn statements in lieu of testimony, and vest the Secretary of Defense with the judicial power to rule in matters that terminate the proceedings. See Petition for Writ of Certiorari at 1, 30.

The government argues that the President has the constitutional, statutory, and congressional authority to convene military commissions for persons who the military labels as enemy combatants in the “war on terror.” See Brief for the Respondents in Opposition at 17. If the Court holds for the government, it will allow the commission proceedings against Hamdan to resume. Such a decision would indicate that commission trials are acceptable tools for preventing future acts of international terrorism against the United States by al Qaeda and its supporters, see Brief for Respondents at 11. But arguably, a decision for the government would not only expand the jurisdiction of military tribunals to displace traditional tribunals in some circumstances, it would also expand the powers of the President. See Brief for Petitioner at 9–11, 30. Specifically, a decision for the government would vest the executive branch with unilateral authority to decide an enemy combatant’s classification, treatment, judgment, and sentencing, all the while circumventing federal courts. See Petition for Writ of Certiorari at 7. The ACLU, for example, argues that that the President believes that he can do whatever he chooses as long as he describes it as part of the “war on terror”. See Amicus Brief of the ACLU in Support of Petitioner at 3. This is particularly troubling given that the “war on terror” is potentially unlimited in scope and duration, such that there exist hundreds of terrorism cases awaiting trial by commission. See Brief for Petitioner at 31; Brief of the Cato Institute as Amicus Curiae in Support of Petitioner at 4. A decision for the government, therefore, could deny some of the most rudimentary requirements of a fair trial not only to Hamdan, see Amicus Brief of the ACLU in Support of Petitioner at 5, but also to other alien detainees at Guantánamo Bay and any other criminal who the President labels as an enemy combatant.

If the Court finds that the President does not have the broad power to create or use military commissions to try enemy combatants in the “war on terror,” then Hamdan will not be subject to commission trial. But military commissions have historically served an important (albeit limited) function during times of war, see Brief for Petitioner at 9. A decision favoring Hamdan may allow federal courts to interfere with important, ongoing military commission proceedings. Essentially, such a decision would allow federal courts to second-guess the President’s and the military’s conduct and the “exercise of the President’s core Commander-in-Chief and foreign affairs authority.” See Brief for the Respondents in Opposition at 13, 17. For the families of the September 11th terrorist attacks, the more significant consequence of a ruling for Hamdan is that such a decision may forestall the punishment of the conspirators involved with the egregious violence committed against the United States. See Brief for Respondents at 21. Similarly, the soldiers who are actively stationed in Iraq and their families may interpret such a decision as hindering the government’s ability to hold enemy combatants accountable for their war crimes “in a manner that promotes, rather than compromises other efforts to prosecute the war and bring the conflict to an end.” Brief for Respondents at 25. Finally, for the nation as a whole, the judicial regime sought by Hamdan may hamper the executive’s ability to wage war successfully against al Qaeda or other terrorist organizations and to protect the nation from future attacks. See Amicus Curiae Brief of Retired Generals and Admirals in Support of Petitioner at 25, 29.

The 1949 Geneva Convention is central to the Court’s decision in this case. If the Court decides that the Convention’s Common Article 3 requirement of trial and sentencing by a “regularly constituted court” is indeed applicable to the “war on terror,” then the Article would protect Hamdan and other similarly situated detainees from inhumane treatment. See Amicus Curiae Brief of 422 Current and Former Members of the United Kingdom and European Parliaments in Support of Petitioner at 16. Furthermore, consistent application of the Geneva Convention rules protects the lives of American soldiers because denying the Geneva protections to Hamdan and others weakens the United States’ ability to demand that other nations apply the Convention to Americans captured during armed conflicts abroad. See Amicus Curiae Brief of Retired Generals and Admirals in Support of Petitioner at 8. The argument for reciprocity, however, is weakened in the context of war with terrorists who regularly violate such rules. Regardless of which way the Court interprets the 1949 Geneva Convention, any determination about the Convention would expand the Court’s role in the realm of interpreting U.S. treaty obligations, a province generally understood to be solely within the domain of the executive branch. See Brief for Respondents at 38. Finally, if the Court decides that Article 3 is indeed applicable to the “war on terror,” this would indicate that countries that have not ratified a specific treaty may still free ride on its protections, which may have the adverse result of deterring states from joining—and thus subjecting themselves to the burdens of—international treaties in the first place. See Id. at 39.

For the United States, this case is a high-stakes test of the President’s wartime powers because the Court will define the perimeter of the “war on terror” and what tools are available to the President in responding to attacks on national security such as those of September 11th. See Amicus Curiae Brief of Retired Generals and Admirals in Support of Petitioner at 12–13 (“The power to ‘wage war successfully’ necessarily includes determining how to manage captured enemy combatants—lawful or otherwise.”). For the rest of the world, this case will be emblematic of how the United States complies with the standards set by international humanitarian law and the human rights laws it so strongly advocates. See Amicus Curiae Brief of 304 United Kingdom and European Parliamentarians in Support of Petitioner at 6; Brief of Amici Curiae Madeleine K. Albright and 21 Former Senior U.S. Diplomats in Support of Petitioner Salim Ahmed Hamdan at 20 (“Promoting the rule of law has long been an important priority of U.S. foreign policy. Yet convening military commissions that lack judicial independence and claiming unfettered authority to unilaterally establish and amend rules in violation of fundamental fair trial guarantees not only undermines the rule of law, but also diminishes the moral authority the United States regularly invokes to promote the rule of law abroad.”)

Conclusion

Seemingly every day, the “war on terror” generates controversial issues that require a delicate balance of national security, civil liberties, separation of powers, and international treaty obligations. The Supreme Court’s decision in this case will affect how we view the powers of the President and of the federal courts, the rights of non-citizens in US mili tary cus tody, and the manner in which the United States may conduct itself and expect other nations to conduct themselves vis-à-vis “enemy combatants” in an undeclared war.Written by:

Laura Chang

Kenneth Hwang