Hamdan v. Rumsfeld

SUPREME COURT OF THE UNITED STATES
Syllabus
HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 05–184. Argued March 28, 2006—Decided June 29, 2006

Pursuant to Congress’ Joint Resolution authorizing the President to “use all necessary and appropriate force against those nations, or-ganizations, or persons he determines planned, authorized, commit-ted or aided” the September 11, 2001, al Qaeda terrorist attacks(AUMF), U. S. Armed Forces invaded Afghanistan. During the hos-tilities, in 2001, militia forces captured petitioner Hamdan, a Yemeni national, and turned him over to the U. S. military, which, in 2002,transported him to prison in Guantanamo Bay, Cuba. Over a yearlater, the President deemed Hamdan eligible for trial by militarycommission for then-unspecified crimes. After another year, he was charged with conspiracy “to commit . . . offenses triable by militarycommission.” In habeas and mandamus petitions, Hamdan assertedthat the military commission lacks authority to try him because (1)neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and (2) the procedures adopted totry him violate basic tenets of military and international law, includ-ing the principle that a defendant must be permitted to see and hear the evidence against him.

The District Court granted habeas relief and stayed the commis-sion’s proceedings, concluding that the President’s authority to estab-lish military commissions extends only to offenders or offenses triableby such a commission under the law of war; that such law includesthe Third Geneva Convention; that Hamdan is entitled to that Con-vention’s full protections until adjudged, under it, not to be a prisonerof war; and that, whether or not Hamdan is properly classified a pris-oner of war, the commission convened to try him was established in violation of both the Uniform Code of Military Justice (UCMJ), 10U. S. C. §801 et seq., and Common Article 3 of the Third Geneva Con-vention because it had the power to convict based on evidence the ac-cused would never see or hear. The D. C. Circuit reversed. Althoughit declined the Government’s invitation to abstain from consideringHamdan’s challenge, cf. Schlesinger v. Councilman, 420 U. S. 738, the appeals court ruled, on the merits, that Hamdan was not entitled to re-lief because the Geneva Conventions are not judicially enforceable. The court also concluded that Ex parte Quirin, 317 U. S. 1, foreclosed anyseparation-of-powers objection to the military commission’s jurisdiction, and that Hamdan’s trial before the commission would violate neither the UCMJ nor Armed Forces regulations implementing the GenevaConventions.

Held: The judgment is reversed, and the case is remanded.
415 F. 3d 33, reversed and remanded.



JUSTICE STEVENS delivered the opinion of the Court, except as toParts V and VI–D–iv, concluding:

1. The Government’s motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied. DTA §1005(e)(1) providesthat “no court . . . shall have jurisdiction to hear or consider . . . an application for . . . habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay.” Section 1005(h)(2) provides that §§1005(e)(2) and(3)—which give the D. C. Circuit “exclusive” jurisdiction to review thefinal decisions of, respectively, combatant status review tribunalsand military commissions—“shall apply with respect to any claim whose review is . . . pending on” the DTA’s effective date, as was Hamdan’s case. The Government’s argument that §§1005(e)(1) and(h) repeal this Court’s jurisdiction to review the decision below is re-butted by ordinary principles of statutory construction. A negativeinference may be drawn from Congress’ failure to include §1005(e)(1)within the scope of §1005(h)(2). Cf., e.g., Lindh v. Murphy, 521 U. S. 320, 330. “If . . . Congress was reasonably concerned to ensure that[§§1005(e)(2) and (3)] be applied to pending cases, it should have beenjust as concerned about [§1005(e)(1)], unless it had the different in-tent that the latter [section] not be applied to the general run of pending cases.” Id., at 329. If anything, the evidence of deliberateomission is stronger here than it was in Lindh. The legislative his-tory shows that Congress not only considered the respective temporalreaches of §§1005(e)(1), (2), and (3) together at every stage, but omit-ted paragraph (1) from its directive only after having rejected earlier proposed versions of the statute that would have included what isnow paragraph (1) within that directive’s scope. Congress’ rejectionof the very language that would have achieved the result the Gov-ernment urges weighs heavily against the Government’s interpretation. See Doe v. Chao, 540 U. S. 614, 621–623. Pp. 7–20.

2. The Government argues unpersuasively that abstention is ap-propriate under Councilman, which concluded that, as a matter of comity, federal courts should normally abstain from intervening in pending courts-martial against service members, see 420 U. S., at740. Neither of the comity considerations Councilman identified weighs in favor of abstention here. First, the assertion that militarydiscipline and, therefore, the Armed Forces’ efficient operation, are best served if the military justice system acts without regular inter-ference from civilian courts, see id., at 752, is inapt because Hamdan is not a service member. Second, the view that federal courts should respect the balance Congress struck when it created “an integrated system of military courts and review procedures” is inapposite, sincethe tribunal convened to try Hamdan is not part of that integrated system. Rather than Councilman, the most relevant precedent is Ex parte Quirin, where the Court, far from abstaining pending the con-clusion of ongoing military proceedings, expedited its review becauseof (1) the public importance of the questions raised, (2) the Court’s duty, in both peace and war, to preserve the constitutional safe-guards of civil liberty, and (3) the public interest in a decision onthose questions without delay, 317 U. S, at 19. The Government has identified no countervailing interest that would permit federal courtsto depart from their general duty to exercise the jurisdiction Con-gress has conferred on them. Pp. 20–25.

3. The military commission at issue is not expressly authorized byany congressional Act. Quirin held that Congress had, through Arti-cle of War 15, sanctioned the use of military commissions to try of-fenders or offenses against the law of war. 317 U. S., at 28. UCMJ Art. 21, which is substantially identical to the old Art. 15, reads: “Thejurisdiction [of] courts-martial shall not be construed as deprivingmilitary commissions . . . of concurrent jurisdiction in respect of of-fenders or offenses that by statute or by the law of war may be triedby such . . . commissions.” 10 U. S. C. §821. Contrary to the Gov-ernment’s assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissionswhenever he deems them necessary. Rather, Quirin recognized thatCongress had simply preserved what power, under the Constitutionand the common law of war, the President already had to convene military commissions—with the express condition that he and those under his command comply with the law of war. See 317 U. S., at 28–29. Neither the AUMF nor the DTA can be read to provide spe-cific, overriding authorization for the commission convened to tryHamdan. Assuming the AUMF activated the President’s war powers,
see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circum-stances, see, e.g., id., at 518, there is nothing in the AUMF’s text or leg-islative history even hinting that Congress intended to expand or alterthe authorization set forth in UCMJ Art. 21. Cf. Ex parte Yerger, 8 Wall. 85, 105. Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Art. 21 or the AUMF,was enacted after the President convened Hamdan’s commission, it contains no language authorizing that tribunal or any other at Guan-tanamo Bay. Together, the UCMJ, the AUMF, and the DTA at mostacknowledge a general Presidential authority to convene militarycommissions in circumstances where justified under the Constitutionand laws, including the law of war. Absent a more specific congres-sional authorization, this Court’s task is, as it was in Quirin, to de-cide whether Hamdan’s military commission is so justified. Pp. 25–30.

4. The military commission at issue lacks the power to proceed be-cause its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949. Pp. 49–72.

(a) The commission’s procedures, set forth in Commission OrderNo. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding theofficial who appointed the commission or the presiding officer decides to “close.” Grounds for closure include the protection of classified in-formation, the physical safety of participants and witnesses, the pro-tection of intelligence and law enforcement sources, methods, or ac-tivities, and “other national security interests.” Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer’s discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rulesgoverning Hamdan’s commission permit the admission of any evi-dence that, in the presiding officer’s opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other “protected in-formation,” so long as the presiding officer concludes that the evi-dence is “probative” and that its admission without the accused’s knowledge would not result in the denial of a full and fair trial. Pp.49–52.

(b) The Government objects to this Court’s consideration of a pro-cedural challenge at this stage on the grounds, inter alia, that Ham-dan will be able to raise such a challenge following a final decisionunder the DTA, and that there is no basis to presume, before the trial has even commenced, that it will not be conducted in good faith andaccording to law. These contentions are unsound. First, because Hamdan apparently is not subject to the death penalty (at least asmatters now stand) and may receive a prison sentence shorter than10 years, he has no automatic right to federal-court review of the commission’s “final decision” under DTA §1005(e)(3). Second, there is a basis to presume that the procedures employed during Hamdan’s trial will violate the law: He will be, and indeed already has been, ex-cluded from his own trial. Thus, review of the procedures in advanceof a “final decision” is appropriate. Pp. 52–53.

(c) Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan’s commission trial are illegal. The procedures governing such trials historically have been the same asthose governing courts-martial. Although this uniformity principle is not inflexible and does not preclude all departures from courts-martial procedures, any such departure must be tailored to the exi-gency that necessitates it. That understanding is reflected in Art. 36(b), which provides that the procedural rules the President prom-ulgates for courts-martial and military commissions alike must be“uniform insofar as practicable,” 10 U. S. C. §836(b). The “practica-bility” determination the President has made is insufficient to justifyvariances from the procedures governing courts-martial. The Presi-dent here has determined, pursuant to the requirement of Art. 36(a),that it is impracticable to apply the rules and principles of law that govern “the trial of criminal cases in the United States district courts” to Hamdan’s commission. The President has not, however, made a similar official determination that it is impracticable to applythe rules for courts-martial. And even if subsection (b)’s require-ments could be satisfied without an official practicability determina-tion, that subsection’s requirements are not satisfied here. Nothingin the record demonstrates that it would be impracticable to applycourt-martial rules here. There is no suggestion, e.g., of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. It is not evident why the danger posed by international terrorism, consider-able though it is, should require, in the case of Hamdan’s trial, anyvariance from the courts-martial rules. The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamen-tal protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: The right to be present. See 10 U. S. C. A. §839 (c). Because the jettisoning of so basic a right cannot lightly beexcused as “practicable,” the courts-martial rules must apply. Since it is undisputed that Commission Order No. 1 deviates in many sig-nificant respects from those rules, it necessarily violates Art. 36(b).Pp. 53–62.

(d) The procedures adopted to try Hamdan also violate the Ge-neva Conventions. The D. C. Circuit dismissed Hamdan’s challengein this regard on the grounds, inter alia, that the Conventions are not judicially enforceable and that, in any event, Hamdan is not entitledto their protections. Neither of these grounds is persuasive. Pp. 62– 68.

(i) The appeals court relied on a statement in Johnson v. Eisen-trager, 339 U. S. 763, 789, n. 14, suggesting that this Court lackedpower even to consider the merits of a Convention argument because the political and military authorities had sole responsibility for ob-serving and enforcing prisoners’ rights under the Convention. How-ever, Eisentrager does not control here because, regardless of the na-ture of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U. S. 407, they are indisputably part of the law of war, see Hamdi, 542 U. S., at 520–521, compliance with which is the conditionupon which UCMJ Art. 21 authority is granted. Pp. 63–65.
(ii) Alternatively, the appeals court agreed with the Govern-ment that the Conventions do not apply because Hamdan was cap-tured during the war with al Qaeda, which is not a Convention signa-tory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argumentbecause there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signato-ries. Common Article 3, which appears in all four Conventions, pro-vides that, in a “conflict not of an international character occurring inthe territory of one of the High Contracting Parties [i.e., signatories],each Party to the conflict shall be bound to apply, as a minimum,”certain provisions protecting “[p]ersons . . . placed hors de combat by. . . detention,” including a prohibition on “the passing of sentences . . . without previous judgment . . . by a regularly constituted court af-fording all the judicial guarantees . . . recognized as indispensable bycivilized peoples.” The D. C. Circuit ruled Common Article 3 inappli-cable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ”That reasoning is erroneous. That the quoted phrase bears its literalmeaning and is used here in contradistinction to a conflict betweennations is demonstrated by Common Article 2, which limits its ownapplication to any armed conflict between signatories and providesthat signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsig-natory “accepts and applies” those terms. Common Article 3, by con-trast, affords some minimal protection, falling short of full protectionunder the Conventions, to individuals associated with neither a sig-natory nor even a nonsignatory who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65–68.
(iii) While Common Article 3 does not define its “regularly con-stituted court” phrase, other sources define the words to mean an“ordinary military cour[t]” that is “established and organized in ac-cordance with the laws and procedures already in force in a country.”The regular military courts in our system are the courts-martial es-tablished by congressional statute. At a minimum, a military com-mission can be “regularly constituted” only if some practical need ex-plains deviations from court-martial practice. No such need has been demonstrated here. Pp. 69–70.
(iv) Common Article 3’s requirements are general, crafted to accommodate a wide variety of legal systems, but they are require-ments nonetheless. The commission convened to try Hamdan doesnot meet those requirements. P. 72.

(d) Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the op-portunity, the Executive nevertheless must comply with the prevail-ing rule of law in undertaking to try him and subject him to criminal punishment. P. 72.



JUSTICE STEVENS, joined by JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER, concluded in Parts V and VI–D–iv:

1. The Government has not charged Hamdan with an “offense . . . that by the law of war may be tried by military commission,” 10U. S. C. §821. Of the three sorts of military commissions used his-torically, the law-of-war type used in Quirin and other cases is the only model available to try Hamdan. Among the preconditions, in-corporated in Article of War 15 and, later, UCMJ Art. 21, for such atribunal’s exercise of jurisdiction are, inter alia, that it must be lim-ited to trying offenses committed within the convening commander’s field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001.More importantly, the offense alleged is not triable by law-of-warmilitary commission. Although the common law of war may render triable by military commission certain offenses not defined by stat-ute, Quirin, 317 U. S., at 30, the precedent for doing so with respectto a particular offense must be plain and unambiguous, cf., e.g., Lov-ing v. United States, 517 U. S. 748, 771. That burden is far from satis-fied here. The crime of “conspiracy” has rarely if ever been tried as such in this country by any law-of-war military commission not exer-cising some other form of jurisdiction, and does not appear in eitherthe Geneva Conventions or the Hague Conventions—the major treaties on the law of war. Moreover, that conspiracy is not a recognized violation of the law of war is confirmed by other international sources, including, e.g., the International Military Tribunal at Nur-emberg, which pointedly refused to recognize conspiracy to commit war crimes as such a violation. Because the conspiracy charge doesnot support the commission’s jurisdiction, the commission lacks au-thority to try Hamdan. Pp. 30–49.

2. The phrase “all the guarantees . . . recognized as indispensableby civilized peoples” in Common Article 3 of the Geneva Conventions is not defined, but it must be understood to incorporate at least the barest of the trial protections recognized by customary internationallaw. The procedures adopted to try Hamdan deviate from those gov-erning courts-martial in ways not justified by practical need, and thus fail to afford the requisite guarantees. Moreover, various provi-sions of Commission Order No. 1 dispense with the principles, whichare indisputably part of customary international law, that an accused must, absent disruptive conduct or consent, be present for his trialand must be privy to the evidence against him. Pp. 70–72.JUSTICE KENNEDY, agreeing that Hamdan’s military commission isunauthorized under the Uniform Code of Military Justice, 10 U. S. C.§§836 and 821, and the Geneva Conventions, concluded that there istherefore no need to decide whether Common Article 3 of the Conven-tions requires that the accused have the right to be present at allstages of a criminal trial or to address the validity of the conspiracycharge against Hamdan. Pp. 17–19.


STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, VI through VI–D–iii, VI–D–v, and VII, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion with respect to Parts V and VI–D–iv, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion, in which KENNEDY, SOUTER, and GINSBURG, JJ., joined. KENNEDY, J., filed an opinion concurring in part, in which SOUTER, GINSBURG, and BREYER, JJ., joined as to Parts I and II. SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, and in which ALITO, J., joined as to all but Parts I, II–C–1, and III–B–2. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined as to Parts I through III. ROBERTS, C. J., took no part in the consideration or decision of the case.

...
More In The Attached PDF Above
...

http://www.indybay.org/uploads/2006/06/29/05-184.pdf