Tuesday’s Argument in Hamdan v. Rumsfeld
on Mar 27, 2006 at 9:22 pm
This post was written by Stanford Law Student Scott Reents. Disclosure: Goldstein & Howe is co-counsel for petitioner.
Petitioner Salid Ahmed Hamdan is a detainee being held at Guantanamo Bay, Cuba. He was captured in Afghanistan in November 2001 and admits to being a personal bodyguard and driver to Osama bin Laden. He was charged with conspiring to commit acts of terrorism, and was to be tried before a military commission, which is a special adjudicatory body created by Presidential order to try individuals accused of war crimes.
Before trial, Hamdan challenged the lawfulness of the military commission that was to try him, and in November 2004, the D.C. District Court enjoined the military commission proceedings as illegal under the Geneva Convention and the Uniform Code of Military Justice (UCMJ). The court of appeals for the D.C. circuit reversed, holding that military commissions had been duly authorized by Congress; that relief was unavailable under the Geneva Convention because it did not create privately enforceable rights and because it did not apply to Al Qaeda; and that the UCMJ did not preclude Hamdan’s trial before military commissions.
The case deals with legality and scope of military commissions in the war on terror. While Hamdi v. Rumsfeld and Rasul v. Bush (2004) addressed the issue of the prospective detention of enemy combatants (holding that the Government had the authority to detain alleged enemy combatants in the conflict but that alleged enemy aliens held in Guantanamo Bay, Cuba, had a right to file petitions for habeas corpus to challenge the basis of their detention), this case addresses the use of military commissions to impose retrospective punishment on individuals charged with acts relating to terrorism.
As a threshold matter, respondents argue that the Court lacks jurisdiction to hear this case at all. They argue that the Detainee Treatment Act of 2005 (DTA), enacted by Congress after the Supreme Court granted certiorari in this case, preclude pre-trial review by establishing an exclusive post-trial review process for all Guantanamo detainees. In addition, the Government has argued, even absent the DTA, the Court should withhold ruling on the merits until a final decision has been reached in accordance with traditional abstention doctrine. Petitioner, on the other hand, argues that Congress specifically modified the effective date provisions of the DTA to ensure that the Supreme Court could decide this case.
On the merits, petitioner argues that the military commission that seeks to try him is not authorized to do so under U.S. law. Citing Ex Parte Quirin (1942) and In re Yamashita (1946), he argues that such authorization must be explicitly provided by Congress. Respondents dispute whether such explicit authorization is required, pointing to the historical practice of the President convening military commissions as evidence of his inherent “Commander-in-Chief” power to do so.
To the extent that Congressional authorization is required, two statutes are in play. The first is the Authorization for Use of Military Force (AUMF), passed by Congress shortly after September 11, and granting the president the authority to “to use all necessary and appropriate force” against Al Qaeda. Respondents cite Hamdi for the proposition that it is sufficient authority because “the capture, detention, and trial of unlawful combatants” (emphasis added) are incidents of war authorized by the statute. But Petitioner argues that at most, the AUMF contemplates the use of military commissions within their traditional jurisdiction, which includes trying war criminals in traditional wars (like the conflict between the United States and the Taliban) but not individuals charged with conspiracy to engage in terrorism unrelated to that conflict. Moreover, petitioner argues, to the extent commissions are authorized, they must afford the traditional procedural protections provided by military commissions in the past, which this commission fails to do.
The second statute is the UCMJ, the law creating the court martial system for the administration of justice inside the military. UCMJ provisions state that the creation of courts martial and their procedures does not in any way limit jurisdiction of military commissions nor the President’s authority to prescribe their rules. Petitioners deny that this language is enough to suggest explicit authorization, while respondents say that materially similar language was held to authorize just that in Ex Part Quirin. Petitioner again argues, however, that at most, the UCMJ authorizes commissions operating within the traditional scope of jurisdiction and with the traditional procedural protections of military commissions of the past.
Toward this end, petitioner argues that the current commissions transgress traditional, statutory limitations on commissions. First, petitioner argues, the present commission have been authorized to try new crimes, defined by the President, that are not recognized by the laws of war, in particular, the crime of conspiracy to commit terrorist acts. The laws of war do not recognize even conspiracy to commit a traditional war crime, petitioner argues, pointing to decisions by international war crime tribunals after World War II. Second, petitioner asserts that terrorism by stateless entities like Al Qaeda have never before been recognized as falling within the purview of military commissions, rather than civilian criminal courts. To construe it as a war would threaten the fundamental liberties of potentially thousands of defendants accused of having ties to terrorist organizations, including even U.S. citizens. Finally, petitioner argues that the commissions do not afford him rights guaranteed under the UCMJ for all military tribunals, including the right to be present at his own trial.
Respondents dispute each of these arguments. First, respondents argue that conspiracy is indeed cognizable under the laws of war, and point to Quirin, among other cases, as an example, in which conspiracy was alleged as a war crime. Respondents further insist that petitioner is subject to the laws of war as a matter of tradition and that, in any event, Congress authorized the use of commissions against members of Al Qaeda through the AUMF. In addition, respondents argue, the determination of what is or is not a “war” is a best made by the President himself, that he has determined that the conflict with Al Qaeda is a war, and that this determination is, on the merits, correct. Finally, respondents deny that the procedural provisions of the UCMJ apply to military commissions and assert that, in any case, the UCMJ authorizes the President to deviate from the procedures afforded in other proceedings (like courts martial) to the extent he deems it necessary.
Petitioner also alleges that the Commissions violate provisions of the Geneva Conventions. First, petitioner argues that because he has asserted to be a prisoner of war from the traditional conflict between the United States and the Taliban, the Conventions require that he be provided a hearing to determine his POW status and, until then, given the same procedural protections that would be given an American serviceman alleged of war crimes (namely, trial by court martial).
Petitioner further argues that even if he is not entitled to POW status, he is still protected by common Article 3. This article requires that even non-POWs be tried before a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” A trial before a military commission would not meet this requirement because they are ad hoc rather than “regularly constituted,” and because they do not provide sufficient “judicial guarantees.”
Respondent denies the applicability of the Geneva Convention, arguing that treaties do not confer individually cognizable rights, and that they ought be enforced through diplomatic rather than judicial means. But even if it does confer rights, respondent argues that petitioner is not entitled to the protections of the Convention because Al Qaeda is not a party to the convention and because the Petitioner is not a POW as defined under the Convention. Finally, respondents argue that petitioner has been given an adequate hearing to determine his POW status through his enemy combatant status review and that the military commission is regularly constituted within the meaning of the Conventions.
