Hamdan v. Rumsfeld
Encyclopedia
Hamdan v. Rumsfeld, 548 U.S. 557
(2006), is a case in which the Supreme Court of the United States
held that military commission
s set up by the Bush administration
to try detainees at Guantanamo Bay
lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice
and the four Geneva Conventions
signed in 1949." Specifically, the ruling says that Common Article 3 of the Geneva Conventions was violated.
The case considered whether the United States Congress
may pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place, whether the special military commissions that had been set up violated federal law (including the Uniform Code of Military Justice
and treaty obligations), and whether courts can enforce the articles of the 1949 Geneva Convention
.
An unusual aspect of the case was an amicus brief
filed by Senators Jon Kyl
and Lindsey Graham
, which presented an “extensive colloquy” added to the Congressional record as evidence that "Congress was aware" that the Detainee Treatment Act would strip the Supreme Court of jurisdiction to hear cases brought by the Guantanamo
detainees. Because these statements were not actually included in the December 21 debate, Emily Bazelon
of Slate
magazine has argued this was an attempt to mislead the court.
On June 29, 2006, the Court issued a 5-3 decision holding that it had jurisdiction, that the administration did not have authority to set up these particular military commissions without congressional authorization, because they did not comply with the Uniform Code of Military Justice
and the Geneva Convention (which the court found to be incorporated into the Uniform Code of Military Justice).
Just days earlier, Hamdan's defense attorney Lieutenant Commander Charles Swift
had been named one of the 100 most influential lawyers in America by the National Law Journal. But in October, the Navy announced plans to dismiss him under its "up or out" promotion policy.
, a citizen of Yemen
and a bodyguard and chauffeur for Osama bin Laden
, who had been formerly employed to work on an agricultural project that Osama Bin Laden had created to support the people of Afghanistan. Hamdan was captured by militia forces during the invasion of Afghanistan
and turned over to the United States
, then sent to the Guantanamo Bay Naval Base
in Cuba
. In July 2004, he was charged with conspiracy to commit terrorism, and the Bush administration made arrangements to try him before a military commission
authorized under Military Commission Order No. 1
of March 21, 2002. Hamdan filed a petition for a writ of habeas corpus, arguing that the military commission convened to try him was illegal and lacked the protections required under the Geneva Conventions and United States Uniform Code of Military Justice. Following the Supreme Court ruling on another case, Hamdi v. Rumsfeld
, Hamdan was granted a review before the Combatant Status Review Tribunal
, which determined that he was eligible for detention by the United States as an enemy combatant
or person of interest.
The defendants in this case include many United States
government officials allegedly responsible for Hamdan's detention; as is customary, the short name of the case includes only the first-named defendant, then-Secretary of Defense Donald Rumsfeld
.
of the United States District Court for the District of Columbia
ruled in Hamdan's favor, finding 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 Arthur Raymond Randolph
, John G. Roberts, Jr. and Stephen F. Williams
, unanimously reversed the decision of the District Court. Judge Randolph, who wrote the decision, cited the following reasons for the legality of the military commission:
to hear the case. The petition was filed on behalf of Hamdan by Neal Katyal
of Georgetown University Law Center
and Seattle University
School of Law alumnus Lt. Commander Charles Swift
of the U.S. Navy
. Seattle law firm, Perkins Coie
provided the additional legal counsel for Hamdan.
The case was argued before the court on 28 March 2006. Katyal argued on behalf of Hamdan, and Paul Clement
, the Solicitor General of the United States
, argued on behalf of the government. Chief Justice 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 for Justice Antonin Scalia
to recuse himself, since he had made allegedly improper comments about the decision of the case prior to hearing oral arguments ("I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy") but he chose not to do so.
The Supreme Court announced its decision on 29 June 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.
Associate Justice
John Paul Stevens
wrote the opinion for the Court, which commanded a majority only in part.
The Stevens opinion 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. Congress did not include language in the DTA that might have precluded Supreme Court jurisdiction, making the government's argument to the Court unpersuasive. The government's argument that Schlesinger v. Councilman
, 420 U.S. 738 (1975), precludes Supreme Court review was similarly rejected. Councilman applied to a member of the U.S. military who was being tried before a military "court-martial
." In contrast, Hamdan is not a member of the U.S. military, and would be tried before a military "commission," not a court-martial. To the court, the more persuasive precedent was Ex parte Quirin
, in which the court recognized its duty to enforce relevant Constitutional protections by convening a special Term and expediting review of a trial by military convention. The opinion explicitly stated that, because 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.
The opinion then addressed the substantive issues of the case. It explicitly did not decide whether the President possessed the Constitutional power to convene military commissions like the one created to try Hamdan. Even if he possessed such power, 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 is 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. Instead, the AUMF, the UCMJ, and the 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.
As to the laws of war
, to the majority these necessarily include the UCMJ and the Geneva Conventions
, each of which require more protections than the military commission provides. The UCMJ, Art. 36 (b), which requires that rules applied in courts-martial and military commissions be "uniform insofar as practicable." Stevens found several substantial deviations, including:
These deviations made the commissions violate the UCMJ.
The majority also found that the procedures in question violate the "at least" applicable Common Article 3 of the Geneva Conventions. It found that the D.C. Court of Appeals erred in concluding that the Conventions did not apply:
Because the military commission does not meet the requirements of the Uniform Code of Military Justice or of the Geneva Convention, it violates the laws of war and therefore cannot be used to try Hamdan.
The Court did not hear the question that had decided the district court opinion, namely that Hamdan was entitled to a GCIII Art. 5 hearing instead of a Combatant Status Review Tribunal
.
did not join Stevens’ opinion as to several parts, largely on the grounds of judicial parsimony (that is, 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), those sections were without a majority in support.
In one of these sections, Stevens addressed the issue of whether military commissions can try conspiracy charges. He argued that military commissions are not courts of general jurisdiction, which are able to try any crime; that the court has traditionally held that offenses against the law of war are triable by military commission only when they are clearly defined as war crimes by statute or strong common law
precedent (cf. Quirin). Finally, he found that there was no support in statute or court precedent for law-of-war military commissions trying charges of "conspiracy
," either in the Geneva Conventions, in the earlier Hague Conventions
or at the Nuremberg Trials
.
wrote a one-page concurring opinion, joined by Justices Kennedy, Souter, and Ginsburg. Breyer contended that the commissions are not necessarily categorically prohibited, as long as Congress approves them:
Justice Kennedy
wrote an opinion concurring in part, joined as to parts I and II by Justices Souter, Ginsburg, and Breyer.
In Part One of Kennedy's concurrence, he raises his concern for the separation of powers; specifically, how one branch can control all the elements of a case, including avenues of review and appeal.
Part Two describes the differences between the procedures of the military commissions and the procedures prescribed by the UCMJ (fewer jury members, different rules of evidence, et al.). These differences demonstrate that the commissions do not operate under the rules of military courts-martial, and raise issues of neutrality with respect to the military judges involved. The negation of fairness safeguards renders the commission a judicial entity which is not a "regularly constituted court", as required in the Geneva Convention. In sum, Kennedy writes that the commission exceeds congressional bounds, though the Congress is free to re-write the law as they see fit.
The third and final Part lists some of Kennedy's reservations. He would not say that the defendant must be present at all stages of the trial. There should be a reluctance to consider the applicability of Article 75 of Protocol I, since America never signed it and thus it is not binding. Kennedy writes that he feels it was not necessary to delve into the validity of the conspiracy charge, and he expresses no view on the merits of the other limitations of the commission noted in Part V of the Decision.
Scalia calls the Court's conclusion to hear the case "patently erroneous." His first argument relies on the part of the Detainee Treatment Act
(DTA) (effective December 30, 2005) that states "[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." §1005(e)(1), 119 Stat. 2742. Scalia's opinion is that this clause suffices to deny the Supreme Court jurisdiction over the case, calling the majority's reading of the effectiveness provisions of §1005(h), a "mess". He cites Bruner v. United States and other cases granting "immediate effect in pending cases, absent an explicit statutory reservation." He wrote that in interpreting the language in the DTA, the majority ignored Supreme Court precedents which established that a statute excluding jurisdiction applies to pending cases unless it has clear language saying it does not. Scalia claimed that the majority had made this interpretation "for the flimsiest of reasons". He was referring to the majority's use of Senate floor debate records to bolster their interpretation, writing that it "makes no difference" that the language in support of his position was inserted into the Congressional Record after the law was voted upon. He also accuses the majority of ignoring the President's Signing Statement
.
Furthermore, he anticipates that expanding the jurisdictions able to hear writs of habeas corpus from Guantanamo Bay would create excessive load on the court system.
In addition, Scalia states that the original military tribunal was not shown to be inadequate. Regarding the application of the Suspension Clause of the Constitution, Scalia points to Johnson v. Eisentrager
.
In its second major argument, Scalia's opinion argues that petitioners such as Hamdan held outside the territorial jurisdiction of the United States lack the right to the writ of habeas corpus
. He points in a footnote to Hamdi v. Rumsfeld
, under which he claims Hamdan "is already subject to indefinite detention" "after an adverse determination by his CSRT."
Finally, Justice Scalia chastises the Court for taking equity jurisdiction of the case and draws an analogy with Schlesinger v. Councilman
, 420 U.S. 738 (1975). In that case, the Supreme Court declined passing judgment on the decision of a military court-martial
before it finished its work; Scalia argues that likewise, the military commissions
in Cuba have not yet ended their work regarding Hamdan and therefore should not be subject to judicial oversight.
read his dissent from the bench when the decision was announced, the first time he did so since his dissent in Stenberg v. Carhart
, 530 U.S. 914 (2000).
In his dissent he asserted that the courts had no jurisdiction for this case for the reasons described in Scalia's dissent above; that Hamdan is an illegal combatant and therefore not protected by the Geneva convention; that the Geneva convention doesn't prohibit the special court council proposed; and that the President already had authority to set up the special court council proposed.
Citing his dissent in Hamdi v. Rumsfeld
, Thomas briefly reprised the roles granted by the Constitution to the three different branches in time of war. He argued that under the framework established in Ex parte Quirin
and Youngstown Sheet & Tube Co. v. Sawyer
, President Bush's decision to try Hamdan before a military commission "is entitled to a heavy measure of deference," inasmuch as Congress had authorized the President to use all necessary and appropriate force to prevent future acts of terrorism when it passed the Authorization for Use of Military Force
.
Thomas disagreed strongly with the plurality’s determination that the legality of the charges against Hamdan are doubtful because he was charged "not with an overt act
for which he was caught redhanded...but with an 'agreement' the inception of which long predated...the [relevant armed conflict]." He lambasted the plurality for second-guessing the Executive’s judgment, arguing that the Court’s disagreement was based upon "little more than its unsupported assertions" and constituted "an unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority." Thomas further disagreed with the plurality’s assumption that the date of the enactment of the AUMF constituted the start of war, suggesting that Osama bin Laden's
declaration of jihad
in August 1996 could be considered a declaration of war. Under this view, the enactment by Congress of the AUMF did not mark the beginning of the conflict with al Qaeda, but rather authorized the Executive to use force to combat it. Additionally, Thomas wrote that under the common law of war, which is "flexible and evolutionary in nature," war courts are permitted a degree of latitude in their jurisdiction. In holding otherwise, the plurality failed to properly defer to the judgment of the Executive and military commanders.
Referring to the Court’s recent decision in Rapanos v. United States
, Thomas noted with some incredulity that while the Justices that in the instant decision "disregard[ed] the commander-in-chief’s wartime decisions," they had no trouble deferring to the judgment of the Corps of Engineers in upholding the agency’s "wildly implausible conclusion that a storm drain is a tributary of the waters of the United States." "It goes without saying," Thomas added, "that there is much more at stake here than storm drains."
Thomas likewise disagreed with the plurality’s holding that even if the government had charged Hamdan with a crime that was clearly cognizable by military commission, the commission would still lack power to proceed because it does not comply with the terms of the UCMJ and the four Geneva Conventions signed in 1949. He again emphasized that the jurisdiction of military commissions is not prescribed by statute but is rather "adapted in each instance to the need that called it forth." Thomas argued that the Court’s conclusion that Article 36 of the UCMJ amounts to an attempt by Congress to curb the Executive’s power is "contrary to the text and structure of the UCMJ" and also inconsistent with prior decisions of the Court. Addressing Hamdan’s claims under the Geneva Convention, Thomas argued that these are foreclosed by the Court’s holding in Johnson v. Eisentrager
, where the majority noted that the respondents could not assert "that anything in the Geneva Convention makes them immune from prosecution or punishment for war crimes." Further, even if Hamdan’s claim under Common Article 3 was not foreclosed by Eisentrager, it is nevertheless meritless insofar as the President has accepted the determination of the Department of Justice
that Common Article 3 of Geneva does not extend to al Qaeda detainees. Thomas asserted that the Court’s duty in this instance to "defer to the President’s understanding of the provision at issue" is made even more acute by the fact that he is acting pursuant to his authority as Commander-in-Chief.
Alito specifically disagreed with the opinions supporting the judgment which held that the military commission before which Hamdan would be tried is not "a regularly constituted court," and that the military commission is "illegal," because the commission's procedures allegedly would not comply with . Alito wrote that the military commission was "regularly" or "properly" constituted, using the example of the various types of local, state, federal and international courts and how "although these courts are 'differently constituted' and differ substantially in many other respects, they are all 'regularly constituted.'"
Alito stated that Geneva Convention Common Article 3 does not specifically rule out military commissions, and further points to the commentary in Article 66, which was the article the Court used in support of its opinion. Alito argued that even if Common Article 3 recognizes a prohibition on "special tribunals," which Article 66 does prohibit, such a prohibition is not applicable to Hamdan's tribunal because the military commissions were "regular." Further, because the Bush Administration might conduct the hundreds of such tribunals according to the same procedures, Alito concluded that "it seems that petitioner’s tribunal, like the hundreds of others respondents propose to conduct, is very much regular and not at all special."
Alito wrote that "the commissions were appointed, set up, and established pursuant to an order of the President, just like the commission in Ex parte Quirin
, 317 U. S. 1 (1942), and the Court acknowledges that Quirin recognized that the statutory predecessor of 'preserved' the President’s power 'to convene military commissions.'" Alito disagreed with Kennedy's assertion that "an acceptable degree of independence from the Executive is necessary to render a commission 'regularly constituted' by the standards of our Nation's system of justice," arguing that Kennedy "offers no support for this proposition (which in any event seems to be more about fairness or integrity than regularity)," and further arguing that the commission in Quirin was no different from the present case.
Finally, Alito wrote that the commission procedures as a whole do not provide a basis for deeming the commissions to be illegitimate. He points to two procedural rules, which the Court found fault with: First, the rule "allowing the Secretary of Defense to change the governing rules 'from time to time';" and second, the rule that "permits the admission of any evidence that would have 'probative value to a reasonable person'". Alito asserts these rules cannot make the commissions illegitimate.
On the first rule Alito argued that not all changes during the course of a trial prejudice
the defendant, and that some may even help the defendant. In addition, "If a change is made and applied during the course of an ongoing proceeding and if the accused is found guilty, the validity of that procedure can be considered in the review proceeding for that case."
On the second rule, Alito argued that this rule does not violate the international standard incorporated into Common Article 3, because "rules of evidence
differ from country to country" and "much of the world does not follow aspects of our evidence rules, such as the general prohibition against the admission of hearsay."
Shortly thereafter, the Military Commissions Act of 2006
may have raised again the issue of which court would hear cases such as Hamdan's. The U.S. Department of Justice
has filed notice with several federal judges, and given notice to hundreds of detainees, that the habeas petitions of alien unlawful enemy combatants (or those whose status is to be determined) are not within the jurisdiction of those courts.
The passage and signing of the Act
follows through on President Bush's expressed intention to get explicit Congressional authorization to use military tribunals. Press Secretary Tony Snow
echoed the plan to appeal to Congress.
However, even among Senate Republicans, there were conflicting views. Senators Arlen Specter
and Lindsey Graham
(the latter a former military prosecutor
) indicated Congress would work quickly to authorize tribunals, while influential Senator John Warner
suggested a cautious and deliberative response. The potential for Congressional action also provided an avenue for politicking, as Republicans threatened Democratic members of Congress with being labeled weak on terrorism if they did not authorize tribunals.
On July 7, 2006 the Secretary of Defense issued a memo "Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense". This may be the basis of a July 11, 2006, statement by the Bush administration that all detainees at Guantanamo Bay and in U.S. military custody everywhere are entitled to humane treatment under the Geneva Conventions. This declaration appears not to cover CIA
detainees and is ambiguous with respect to the interpretation of Common Article 3 and the definition of "humane treatment".
There were some indications that the other detainees being held at facilities throughout the world (e.g. Bagram Air Base
and black sites), might use the Supreme Court's ruling to challenge their treatment. Their reasoning may be that since the Geneva Conventions afforded protection to Hamdan, its other protections might be effective for them as well. Commentators expressed mixed opinions about the strength of this argument.
. In particular, it may undermine the Bush administration's legal arguments
for domestic wiretapping
by the National Security Agency
without warrants as required by the Foreign Intelligence Surveillance Act.
youth Omar Khadr
, had all charges against them dismissed.
The judges presiding over their military commissions ruled that the Military Commissions Act did not give them the jurisdiction to try Hamdan and Khadr, because it only authorized the trial of "unlawful enemy combatants". Hamdan and Khadr's Combatant Status Review Tribunals, like those of all the other Guantanamo captives, had confirmed that they were only "enemy combatants".
In December 2007 it was determined that Hamdan was an unlawful enemy combatant. In August of 2008 he was convicted by the military commission of the lesser of two charges and received a sentence of 66 months, reduced by time served to five and a half months.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(2006), is a case in which the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
held that military commission
Guantanamo military commission
The Guantanamo military commissions are military tribunals created by the Military Commissions Act of 2006 for prosecuting detainees held in the United States Guantanamo Bay detainment camps.- History :...
s set up by the Bush administration
George W. Bush administration
The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...
to try detainees at Guantanamo Bay
Guantanamo Bay detainment camp
The Guantanamo Bay detention camp is a detainment and interrogation facility of the United States located within Guantanamo Bay Naval Base, Cuba. The facility was established in 2002 by the Bush Administration to hold detainees from the war in Afghanistan and later Iraq...
lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice
Uniform Code of Military Justice
The Uniform Code of Military Justice , is the foundation of military law in the United States. It is was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power . ....
and the four Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
signed in 1949." Specifically, the ruling says that Common Article 3 of the Geneva Conventions was violated.
The case considered whether the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
may pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place, whether the special military commissions that had been set up violated federal law (including the Uniform Code of Military Justice
Uniform Code of Military Justice
The Uniform Code of Military Justice , is the foundation of military law in the United States. It is was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power . ....
and treaty obligations), and whether courts can enforce the articles of the 1949 Geneva Convention
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
.
An unusual aspect of the case was an amicus brief
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
filed by Senators Jon Kyl
Jon Kyl
Jon Llewellyn Kyl is the junior U.S. Senator from Arizona and the Senate Minority Whip, the second-highest position in the Republican Senate leadership. In 2010 he was recognized by Time magazine as one of the 100 most influential people in the world for his persuasive role in the Senate.The son...
and Lindsey Graham
Lindsey Graham
Lindsey Olin Graham is the senior U.S. Senator from South Carolina and a member of the Republican Party. Previously he served as the U.S. Representative for .-Early life, education and career:...
, which presented an “extensive colloquy” added to the Congressional record as evidence that "Congress was aware" that the Detainee Treatment Act would strip the Supreme Court of jurisdiction to hear cases brought by the Guantanamo
Guantanamo Bay detainment camp
The Guantanamo Bay detention camp is a detainment and interrogation facility of the United States located within Guantanamo Bay Naval Base, Cuba. The facility was established in 2002 by the Bush Administration to hold detainees from the war in Afghanistan and later Iraq...
detainees. Because these statements were not actually included in the December 21 debate, Emily Bazelon
Emily Bazelon
Emily Bazelon is an American journalist, senior editor for online magazine Slate, and a senior research fellow at Yale Law School. Her work as a writer focuses on law, abortion, and family issues.-Journalism career:...
of Slate
Slate (magazine)
Slate is a US-based English language online current affairs and culture magazine created in 1996 by former New Republic editor Michael Kinsley, initially under the ownership of Microsoft as part of MSN. On 21 December 2004 it was purchased by the Washington Post Company...
magazine has argued this was an attempt to mislead the court.
On June 29, 2006, the Court issued a 5-3 decision holding that it had jurisdiction, that the administration did not have authority to set up these particular military commissions without congressional authorization, because they did not comply with the Uniform Code of Military Justice
Uniform Code of Military Justice
The Uniform Code of Military Justice , is the foundation of military law in the United States. It is was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power . ....
and the Geneva Convention (which the court found to be incorporated into the Uniform Code of Military Justice).
Just days earlier, Hamdan's defense attorney Lieutenant Commander Charles Swift
Charles Swift
Charles D. Swift is a former Lieutenant Commander in the U.S. Navy, Judge Advocate General's Corps and Visiting Associate Professor of Law at Emory University School of Law. During the course of his Navy career, he was assigned to the Department of Defense Office of Military Commissions. He is...
had been named one of the 100 most influential lawyers in America by the National Law Journal. But in October, the Navy announced plans to dismiss him under its "up or out" promotion policy.
Background
The plaintiff in this case is Salim Ahmed HamdanSalim Ahmed Hamdan
Salim Ahmed Hamdan is a Yemeni man, captured during the invasion of Afghanistan, and imprisoned at Guantanamo Bay. He admits to being Osama bin Laden's personal driver claiming he needed the $200 monthly salary that came with the job....
, a citizen of Yemen
Yemen
The Republic of Yemen , commonly known as Yemen , is a country located in the Middle East, occupying the southwestern to southern end of the Arabian Peninsula. It is bordered by Saudi Arabia to the north, the Red Sea to the west, and Oman to the east....
and a bodyguard and chauffeur for Osama bin Laden
Osama bin Laden
Osama bin Mohammed bin Awad bin Laden was the founder of the militant Islamist organization Al-Qaeda, the jihadist organization responsible for the September 11 attacks on the United States and numerous other mass-casualty attacks against civilian and military targets...
, who had been formerly employed to work on an agricultural project that Osama Bin Laden had created to support the people of Afghanistan. Hamdan was captured by militia forces during the invasion of Afghanistan
War in Afghanistan (2001–present)
The War in Afghanistan began on October 7, 2001, as the armed forces of the United States of America, the United Kingdom, Australia, and the Afghan United Front launched Operation Enduring Freedom...
and turned over to the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, then sent to the Guantanamo Bay Naval Base
Guantanamo Bay Naval Base
Guantanamo Bay Naval Base is located on of land and water at Guantánamo Bay, Cuba which the United States leased for use as a coaling station following the Cuban-American Treaty of 1903. The base is located on the shore of Guantánamo Bay at the southeastern end of Cuba. It is the oldest overseas...
in Cuba
Cuba
The Republic of Cuba is an island nation in the Caribbean. The nation of Cuba consists of the main island of Cuba, the Isla de la Juventud, and several archipelagos. Havana is the largest city in Cuba and the country's capital. Santiago de Cuba is the second largest city...
. In July 2004, he was charged with conspiracy to commit terrorism, and the Bush administration made arrangements to try him before a military commission
Guantanamo military commission
The Guantanamo military commissions are military tribunals created by the Military Commissions Act of 2006 for prosecuting detainees held in the United States Guantanamo Bay detainment camps.- History :...
authorized under Military Commission Order No. 1
Military Commission Order No. 1
The Military Commission Order No. 1 was an order that came into focus in the 2006 ruling of the Supreme Court of the United States in 'Hamdan v. Rumsfeld.From the ruling, 05-184:...
of March 21, 2002. Hamdan filed a petition for a writ of habeas corpus, arguing that the military commission convened to try him was illegal and lacked the protections required under the Geneva Conventions and United States Uniform Code of Military Justice. Following the Supreme Court ruling on another case, Hamdi v. Rumsfeld
Hamdi v. Rumsfeld
Hamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy...
, Hamdan was granted a review before the Combatant Status Review Tribunal
Combatant Status Review Tribunal
The Combatant Status Review Tribunals were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense...
, which determined that he was eligible for detention by the United States as an enemy combatant
Enemy combatant
Enemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war. Prior to 2008, the definition was: "Any person in an armed conflict who could be properly detained under the laws and customs of war." In the case of a civil war or an...
or person of interest.
The defendants in this case include many United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
government officials allegedly responsible for Hamdan's detention; as is customary, the short name of the case includes only the first-named defendant, then-Secretary of Defense Donald Rumsfeld
Donald Rumsfeld
Donald Henry Rumsfeld is an American politician and businessman. Rumsfeld served as the 13th Secretary of Defense from 1975 to 1977 under President Gerald Ford, and as the 21st Secretary of Defense from 2001 to 2006 under President George W. Bush. He is both the youngest and the oldest person to...
.
District and Appeals Court rulings
After reviewing Hamdan's habeas petition, Judge James RobertsonJames Robertson (judge)
James Robertson is a United States federal judge serving on the United States District Court for the District of Columbia.Born in Cleveland, Ohio, Robertson graduated from Western Reserve Academy in Hudson, Ohio, and received a B.A. from Princeton University in 1959. He served in the United States...
of the United States District Court for the District of Columbia
United States District Court for the District of Columbia
The United States District Court for the District of Columbia is a federal district court. Appeals from the District are taken to the United States Court of Appeals for the District of Columbia Circuit The United States District Court for the District of Columbia (in case citations, D.D.C.) is a...
ruled in Hamdan's favor, finding that the United States could not hold a military commission unless it was first shown that the detainee was not a prisoner of war
Prisoner of war
A prisoner of war or enemy prisoner of war is a person, whether civilian or combatant, who is held in custody by an enemy power during or immediately after an armed conflict...
.
On July 15, 2005, a United States Court of Appeals for the District of Columbia Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
three-judge panel of Arthur Raymond Randolph
Arthur Raymond Randolph
Arthur Raymond Randolph is a federal judge on the United States Court of Appeals for the District of Columbia Circuit. He was appointed to the Court in 1990 and assumed senior status on November 1, 2008.-Biography:...
, John G. Roberts, Jr. and Stephen F. Williams
Stephen F. Williams
Stephen Fain Williams is a Senior Circuit Judge on the United States Court of Appeals for the District of Columbia Circuit. He was appointed to the court in June 1986 by President Ronald Reagan, and took senior status in September 2001....
, unanimously reversed the decision of the District Court. Judge Randolph, who wrote the decision, cited the following reasons for the legality of the military commission:
- Military commissions are legitimate forums to try enemy combatantCombatantA combatant is someone who takes a direct part in the hostilities of an armed conflict. If a combatant follows the law of war, then they are considered a privileged combatant, and upon capture they qualify as a prisoner of war under the Third Geneva Convention...
s because they have been approved by CongressUnited States CongressThe United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
. - The Geneva Convention is a treaty between nations and as such it does not confer individual rights and remedies.
- Even if the Geneva Convention could be enforced in U.S. courts, it would not be of assistance to Hamdan at the time because, for a conflict such as the war against al-QaedaAl-QaedaAl-Qaeda is a global broad-based militant Islamist terrorist organization founded by Osama bin Laden sometime between August 1988 and late 1989. It operates as a network comprising both a multinational, stateless army and a radical Sunni Muslim movement calling for global Jihad...
that is not between two countries, it guarantees only a certain standard of judicial procedure—a "competent tribunal"—without speaking to the jurisdiction in which the prisoner must be tried. - Under the terms of the Geneva Convention, al Qaeda and its members are not covered.
- Congress authorized such activity by statuteStatuteA statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
. - The judicial branch of the United States government cannot enforce the Convention, thus invalidating Hamdan's argument that he cannot be tried until after his prisoner of war status is determined.
The Supreme Court's decision
On 7 November 2005, the Supreme Court issued a writ of certiorariCertiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
to hear the case. The petition was filed on behalf of Hamdan by Neal Katyal
Neal Katyal
Neal Kumar Katyal is an American lawyer and chaired professor of law. He served as Acting Solicitor General of the United States from May 2010 until June 2011. As Acting Solicitor General, Katyal succeeded Elena Kagan, who was President Barack Obama's choice to replace the retiring Associate...
of Georgetown University Law Center
Georgetown University Law Center
Georgetown University Law Center is the law school of Georgetown University, located in Washington, D.C.. Established in 1870, the Law Center offers J.D., LL.M., and S.J.D. degrees in law...
and Seattle University
Seattle University
Seattle University is a Jesuit Catholic university located in the First Hill neighborhood of Seattle, Washington, USA.SU is the largest independent university in the Northwest US, with over 7,500 students enrolled in undergraduate and graduate programs within eight schools, and is one of 28 member...
School of Law alumnus Lt. Commander Charles Swift
Charles Swift
Charles D. Swift is a former Lieutenant Commander in the U.S. Navy, Judge Advocate General's Corps and Visiting Associate Professor of Law at Emory University School of Law. During the course of his Navy career, he was assigned to the Department of Defense Office of Military Commissions. He is...
of the U.S. Navy
United States Navy
The United States Navy is the naval warfare service branch of the United States Armed Forces and one of the seven uniformed services of the United States. The U.S. Navy is the largest in the world; its battle fleet tonnage is greater than that of the next 13 largest navies combined. The U.S...
. Seattle law firm, Perkins Coie
Perkins Coie
Perkins Coie is an international law firm based in Seattle, Washington. It has been listed on the Fortune Magazine "100 Best Places to Work in America" for the past nine years. It is noted for its intellectual property, Labor and Employment, and Products Liability practice groups, and for its...
provided the additional legal counsel for Hamdan.
The case was argued before the court on 28 March 2006. Katyal argued on behalf of Hamdan, and Paul Clement
Paul Clement
Paul Drew Clement is a former United States Solicitor General and current Georgetown University legal professor. He is also an adjunct professor at New York University School of Law. He was nominated by President George W...
, the Solicitor General of the United States
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...
, argued on behalf of the government. Chief Justice Roberts
John Roberts
John Glover Roberts, Jr. is the 17th and current Chief Justice of the United States. He has served since 2005, having been nominated by President George W. Bush after the death of Chief Justice William Rehnquist...
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
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
. Critics called for Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
to recuse himself, since he had made allegedly improper comments about the decision of the case prior to hearing oral arguments ("I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy") but he chose not to do so.
The Supreme Court announced its decision on 29 June 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.
Stevens' opinion for the Court
Associate Justice
Associate Justice or Associate Judge is the title for a member of a judicial panel who is not the Chief Justice in some jurisdictions. The title "Associate Justice" is used for members of the United States Supreme Court and some state supreme courts, and for some other courts in Commonwealth...
John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
wrote the opinion for the Court, which commanded a majority only in part.
The Stevens opinion began with the issue of jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
, denying the U.S. government's motion to dismiss under Section 1005 of the Detainee Treatment Act of 2005
Detainee Treatment Act
The Detainee Treatment Act of 2005 is an Act of the United States Congress that prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay; requires military interrogations to be performed according to the U.S...
(DTA), which gave the D.C. Circuit Court of Appeals "exclusive" jurisdiction to review decisions of cases being tried before military commissions. Congress did not include language in the DTA that might have precluded Supreme Court jurisdiction, making the government's argument to the Court unpersuasive. The government's argument that Schlesinger v. Councilman
Schlesinger v. Councilman
Schlesinger v. Councilman, 420 U.S. 738 , was a case decided by the Supreme Court of the United States.The case was a key part of government arguments in the 2006 case of Hamdan v...
, 420 U.S. 738 (1975), precludes Supreme Court review was similarly rejected. Councilman applied to a member of the U.S. military who was being tried before a military "court-martial
Courts-martial in the United States
Courts-martial in the United States are criminal trials conducted by the U.S. military. Most commonly, courts-martial are convened to try members of the U.S. military for violations of the Uniform Code of Military Justice , which is the U.S. military's criminal code...
." In contrast, Hamdan is not a member of the U.S. military, and would be tried before a military "commission," not a court-martial. To the court, the more persuasive precedent was Ex parte Quirin
Ex parte Quirin
Ex parte Quirin, , is a Supreme Court of the United States case that upheld the jurisdiction of a United States military tribunal over the trial of several Operation Pastorius German saboteurs in the United States...
, in which the court recognized its duty to enforce relevant Constitutional protections by convening a special Term and expediting review of a trial by military convention. The opinion explicitly stated that, because 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.
The opinion then addressed the substantive issues of the case. It explicitly did not decide whether the President possessed the Constitutional power to convene military commissions like the one created to try Hamdan. Even if he possessed such power, 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
Uniform Code of Military Justice
The Uniform Code of Military Justice , is the foundation of military law in the United States. It is was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power . ....
(UCMJ), or authorized by statute. As to the statutory authorization, there is nothing in the Authorization for Use of Military Force
Authorization for Use of Military Force Against Terrorists
The Authorization for Use of Military Force Against Terrorists , one of two resolutions commonly known as "AUMF" , was a joint resolution passed by the United States Congress on September 14, 2001, authorizing the use of United States Armed Forces against those responsible for the attacks on...
(AUMF) "even hinting" at expanding the President's war powers beyond those enumerated in Art. 21. Instead, the AUMF, the UCMJ, and the 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.
As to the laws of war
Laws of war
The law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...
, to the majority these necessarily include the UCMJ and the Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
, each of which require more protections than the military commission provides. The UCMJ, Art. 36 (b), which requires that rules applied in courts-martial and military commissions be "uniform insofar as practicable." Stevens found several substantial deviations, including:
- The defendant and the defendant's 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 hearsayHearsayHearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
, unsworn live testimony, and statements gathered through torture; and - Appeals are not heard by courts, but only within the Executive Branch (with an exception not here relevant).
These deviations made the commissions violate the UCMJ.
The majority also found that the procedures in question violate the "at least" applicable Common Article 3 of the Geneva Conventions. It found that the D.C. Court of Appeals erred in concluding that the Conventions did not apply:
- It erroneously relied on Johnson v. EisentragerJohnson v. EisentragerJohnson v. Eisentrager, 339 U.S. 763 , was a major decision of the U.S. Supreme Court, where it decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison...
, which does 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 do not apply because Art. 3 affords minimal protection to combatants "in the territory of" a signatory; and
- Those minimal protections include being tried by a "regularly constituted court," which the military commission is not.
Because the military commission does not meet the requirements of the Uniform Code of Military Justice or of the Geneva Convention, it violates the laws of war and therefore cannot be used to try Hamdan.
The Court did not hear the question that had decided the district court opinion, namely that Hamdan was entitled to a GCIII Art. 5 hearing instead of a Combatant Status Review Tribunal
Combatant Status Review Tribunal
The Combatant Status Review Tribunals were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense...
.
- Hamdan observes that Article 5 of the Third Geneva Convention requires that if there be “any doubt” whether he is entitled to prisoner-of-war protections, he must be afforded those protections until his status is determined by a “competent tribunal.” . Because we hold that Hamdan may not, in any event, be tried by the military commission the President has convened pursuant to the November 13th Order and Commission Order No. 1, the question whether his potential status as a prisoner of war independently renders illegal his trial by military commission may be reserved.
Plurality sections
Because Justice Anthony KennedyAnthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
did not join Stevens’ opinion as to several parts, largely on the grounds of judicial parsimony (that is, 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), those sections were without a majority in support.
In one of these sections, Stevens addressed the issue of whether military commissions can try conspiracy charges. He argued that military commissions are not courts of general jurisdiction, which are able to try any crime; that the court has traditionally held that offenses against the law of war are triable by military commission only when they are clearly defined as war crimes by statute or strong common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
precedent (cf. Quirin). Finally, he found that there was no support in statute or court precedent for law-of-war military commissions trying charges of "conspiracy
Conspiracy (crime)
In the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement...
," either in the Geneva Conventions, in the earlier Hague Conventions
Hague Conventions (1899 and 1907)
The Hague Conventions were two international treaties negotiated at international peace conferences at The Hague in the Netherlands: The First Hague Conference in 1899 and the Second Hague Conference in 1907...
or at the Nuremberg Trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
.
Addressing the dissents
As is common in opinions to which there are dissents, Stevens' opinion addressed the major arguments in dissent. For example:- The majority opinion says that Justice Scalia's argument concerning the jurisdiction-stripping statute (section 1005e(1)) ignores the effective date provision of that very statute (section 1005(h))
- The majority opinion says that the government's contention that the war started September 11, 2001 undercuts Justice Thomas' argument that it started in 1996.
- The majority opinion notes that language in the Congressional RecordCongressional RecordThe Congressional Record is the official record of the proceedings and debates of the United States Congress. It is published by the United States Government Printing Office, and is issued daily when the United States Congress is in session. Indexes are issued approximately every two weeks...
that the Scalia dissent cites was inserted into the Record after the legislation had been enacted, by Senators Lindsey GrahamLindsey GrahamLindsey Olin Graham is the senior U.S. Senator from South Carolina and a member of the Republican Party. Previously he served as the U.S. Representative for .-Early life, education and career:...
(R-SC) and Jon KylJon KylJon Llewellyn Kyl is the junior U.S. Senator from Arizona and the Senate Minority Whip, the second-highest position in the Republican Senate leadership. In 2010 he was recognized by Time magazine as one of the 100 most influential people in the world for his persuasive role in the Senate.The son...
(R-AZ), and includes falsified quotations attributed to other persons.
Breyer's concurrence
Justice BreyerStephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
wrote a one-page concurring opinion, joined by Justices Kennedy, Souter, and Ginsburg. Breyer contended that the commissions are not necessarily categorically prohibited, as long as Congress approves them:
- ...Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary. ... Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine — through democratic means — how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.
Kennedy's concurrence
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
wrote an opinion concurring in part, joined as to parts I and II by Justices Souter, Ginsburg, and Breyer.
In Part One of Kennedy's concurrence, he raises his concern for the separation of powers; specifically, how one branch can control all the elements of a case, including avenues of review and appeal.
Part Two describes the differences between the procedures of the military commissions and the procedures prescribed by the UCMJ (fewer jury members, different rules of evidence, et al.). These differences demonstrate that the commissions do not operate under the rules of military courts-martial, and raise issues of neutrality with respect to the military judges involved. The negation of fairness safeguards renders the commission a judicial entity which is not a "regularly constituted court", as required in the Geneva Convention. In sum, Kennedy writes that the commission exceeds congressional bounds, though the Congress is free to re-write the law as they see fit.
The third and final Part lists some of Kennedy's reservations. He would not say that the defendant must be present at all stages of the trial. There should be a reluctance to consider the applicability of Article 75 of Protocol I, since America never signed it and thus it is not binding. Kennedy writes that he feels it was not necessary to delve into the validity of the conspiracy charge, and he expresses no view on the merits of the other limitations of the commission noted in Part V of the Decision.
Scalia's dissent
Justice Scalia wrote a dissenting opinion that focuses primarily on issues of jurisdiction, and was joined by Justices Thomas and Alito.Scalia calls the Court's conclusion to hear the case "patently erroneous." His first argument relies on the part of the Detainee Treatment Act
Detainee Treatment Act
The Detainee Treatment Act of 2005 is an Act of the United States Congress that prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay; requires military interrogations to be performed according to the U.S...
(DTA) (effective December 30, 2005) that states "[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." §1005(e)(1), 119 Stat. 2742. Scalia's opinion is that this clause suffices to deny the Supreme Court jurisdiction over the case, calling the majority's reading of the effectiveness provisions of §1005(h), a "mess". He cites Bruner v. United States and other cases granting "immediate effect in pending cases, absent an explicit statutory reservation." He wrote that in interpreting the language in the DTA, the majority ignored Supreme Court precedents which established that a statute excluding jurisdiction applies to pending cases unless it has clear language saying it does not. Scalia claimed that the majority had made this interpretation "for the flimsiest of reasons". He was referring to the majority's use of Senate floor debate records to bolster their interpretation, writing that it "makes no difference" that the language in support of his position was inserted into the Congressional Record after the law was voted upon. He also accuses the majority of ignoring the President's Signing Statement
Signing statement
A signing statement is a written pronouncement issued by the President of the United States upon the signing of a bill into law. They are usually printed along with the bill in United States Code Congressional and Administrative News ....
.
Furthermore, he anticipates that expanding the jurisdictions able to hear writs of habeas corpus from Guantanamo Bay would create excessive load on the court system.
In addition, Scalia states that the original military tribunal was not shown to be inadequate. Regarding the application of the Suspension Clause of the Constitution, Scalia points to Johnson v. Eisentrager
Johnson v. Eisentrager
Johnson v. Eisentrager, 339 U.S. 763 , was a major decision of the U.S. Supreme Court, where it decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison...
.
In its second major argument, Scalia's opinion argues that petitioners such as Hamdan held outside the territorial jurisdiction of the United States lack the right to the writ of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. He points in a footnote to Hamdi v. Rumsfeld
Hamdi v. Rumsfeld
Hamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy...
, under which he claims Hamdan "is already subject to indefinite detention" "after an adverse determination by his CSRT."
Finally, Justice Scalia chastises the Court for taking equity jurisdiction of the case and draws an analogy with Schlesinger v. Councilman
Schlesinger v. Councilman
Schlesinger v. Councilman, 420 U.S. 738 , was a case decided by the Supreme Court of the United States.The case was a key part of government arguments in the 2006 case of Hamdan v...
, 420 U.S. 738 (1975). In that case, the Supreme Court declined passing judgment on the decision of a military court-martial
Court-martial
A court-martial is a military court. A court-martial is empowered to determine the guilt of members of the armed forces subject to military law, and, if the defendant is found guilty, to decide upon punishment.Most militaries maintain a court-martial system to try cases in which a breach of...
before it finished its work; Scalia argues that likewise, the military commissions
Tribunal
A tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title....
in Cuba have not yet ended their work regarding Hamdan and therefore should not be subject to judicial oversight.
Thomas's dissent
Justice Clarence ThomasClarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
read his dissent from the bench when the decision was announced, the first time he did so since his dissent in Stenberg v. Carhart
Stenberg v. Carhart
Stenberg v. Carhart, 530 U.S. 914 , is a case heard by the Supreme Court of the United States dealing with a Nebraska law which made performing partial-birth abortion illegal, except where necessary to save the life of the mother. Nebraska physicians who performed the procedure contrary to the law...
, 530 U.S. 914 (2000).
In his dissent he asserted that the courts had no jurisdiction for this case for the reasons described in Scalia's dissent above; that Hamdan is an illegal combatant and therefore not protected by the Geneva convention; that the Geneva convention doesn't prohibit the special court council proposed; and that the President already had authority to set up the special court council proposed.
Citing his dissent in Hamdi v. Rumsfeld
Hamdi v. Rumsfeld
Hamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy...
, Thomas briefly reprised the roles granted by the Constitution to the three different branches in time of war. He argued that under the framework established in Ex parte Quirin
Ex parte Quirin
Ex parte Quirin, , is a Supreme Court of the United States case that upheld the jurisdiction of a United States military tribunal over the trial of several Operation Pastorius German saboteurs in the United States...
and Youngstown Sheet & Tube Co. v. Sawyer
Youngstown Sheet & Tube Co. v. Sawyer
Youngstown Sheet & Tube Co. v. Sawyer, , also commonly referred to as The Steel Seizure Case, was a United States Supreme Court decision that limited the power of the President of the United States to seize private property in the absence of either specifically enumerated authority under Article...
, President Bush's decision to try Hamdan before a military commission "is entitled to a heavy measure of deference," inasmuch as Congress had authorized the President to use all necessary and appropriate force to prevent future acts of terrorism when it passed the Authorization for Use of Military Force
Authorization for Use of Military Force
Authorization for Use of Military Force may refer to:*Authorization for Use of Military Force Against Iraq Resolution of 1991 authorizing the Persian Gulf War, also known as Operation Desert Storm: H.R.J. Res...
.
Thomas disagreed strongly with the plurality’s determination that the legality of the charges against Hamdan are doubtful because he was charged "not with an overt act
Overt Act
In criminal law, an overt act , an open act, one that can be clearly proved by evidence, and from which criminal intent can be inferred, as opposed to a mere intention in the mind to commit a crime...
for which he was caught redhanded...but with an 'agreement' the inception of which long predated...the [relevant armed conflict]." He lambasted the plurality for second-guessing the Executive’s judgment, arguing that the Court’s disagreement was based upon "little more than its unsupported assertions" and constituted "an unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority." Thomas further disagreed with the plurality’s assumption that the date of the enactment of the AUMF constituted the start of war, suggesting that Osama bin Laden's
Osama bin Laden
Osama bin Mohammed bin Awad bin Laden was the founder of the militant Islamist organization Al-Qaeda, the jihadist organization responsible for the September 11 attacks on the United States and numerous other mass-casualty attacks against civilian and military targets...
declaration of jihad
Jihad
Jihad , an Islamic term, is a religious duty of Muslims. In Arabic, the word jihād translates as a noun meaning "struggle". Jihad appears 41 times in the Quran and frequently in the idiomatic expression "striving in the way of God ". A person engaged in jihad is called a mujahid; the plural is...
in August 1996 could be considered a declaration of war. Under this view, the enactment by Congress of the AUMF did not mark the beginning of the conflict with al Qaeda, but rather authorized the Executive to use force to combat it. Additionally, Thomas wrote that under the common law of war, which is "flexible and evolutionary in nature," war courts are permitted a degree of latitude in their jurisdiction. In holding otherwise, the plurality failed to properly defer to the judgment of the Executive and military commanders.
Referring to the Court’s recent decision in Rapanos v. United States
Rapanos v. United States
Rapanos v. United States, 547 U.S. 715 , was a United States Supreme Court case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act. It was the first major environmental case heard by the newly appointed Chief Justice, John Roberts and Associate Justice, Samuel...
, Thomas noted with some incredulity that while the Justices that in the instant decision "disregard[ed] the commander-in-chief’s wartime decisions," they had no trouble deferring to the judgment of the Corps of Engineers in upholding the agency’s "wildly implausible conclusion that a storm drain is a tributary of the waters of the United States." "It goes without saying," Thomas added, "that there is much more at stake here than storm drains."
Thomas likewise disagreed with the plurality’s holding that even if the government had charged Hamdan with a crime that was clearly cognizable by military commission, the commission would still lack power to proceed because it does not comply with the terms of the UCMJ and the four Geneva Conventions signed in 1949. He again emphasized that the jurisdiction of military commissions is not prescribed by statute but is rather "adapted in each instance to the need that called it forth." Thomas argued that the Court’s conclusion that Article 36 of the UCMJ amounts to an attempt by Congress to curb the Executive’s power is "contrary to the text and structure of the UCMJ" and also inconsistent with prior decisions of the Court. Addressing Hamdan’s claims under the Geneva Convention, Thomas argued that these are foreclosed by the Court’s holding in Johnson v. Eisentrager
Johnson v. Eisentrager
Johnson v. Eisentrager, 339 U.S. 763 , was a major decision of the U.S. Supreme Court, where it decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison...
, where the majority noted that the respondents could not assert "that anything in the Geneva Convention makes them immune from prosecution or punishment for war crimes." Further, even if Hamdan’s claim under Common Article 3 was not foreclosed by Eisentrager, it is nevertheless meritless insofar as the President has accepted the determination of the Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
that Common Article 3 of Geneva does not extend to al Qaeda detainees. Thomas asserted that the Court’s duty in this instance to "defer to the President’s understanding of the provision at issue" is made even more acute by the fact that he is acting pursuant to his authority as Commander-in-Chief.
Alito's dissent
In a seven page dissent, Alito sided with Thomas and Scalia's explanation of why they believe the courts had no jurisdiction for this case. He explained why he believed the military commission in this case was legal. Alito disagreed with the holding of the Court which found that military commissions did not meet the definition of a "a regularly constituted court" as required in Common Article 3 of the Geneva Conventions. Alito argued that Common Article 3 was satisfied in Hamdan because the military commissions:- qualify as courts,
- were appointed and established in accordance with domestic law, and
- any procedural improprieties that might occur in particular cases can be reviewed in those cases.
Alito specifically disagreed with the opinions supporting the judgment which held that the military commission before which Hamdan would be tried is not "a regularly constituted court," and that the military commission is "illegal," because the commission's procedures allegedly would not comply with . Alito wrote that the military commission was "regularly" or "properly" constituted, using the example of the various types of local, state, federal and international courts and how "although these courts are 'differently constituted' and differ substantially in many other respects, they are all 'regularly constituted.'"
Alito stated that Geneva Convention Common Article 3 does not specifically rule out military commissions, and further points to the commentary in Article 66, which was the article the Court used in support of its opinion. Alito argued that even if Common Article 3 recognizes a prohibition on "special tribunals," which Article 66 does prohibit, such a prohibition is not applicable to Hamdan's tribunal because the military commissions were "regular." Further, because the Bush Administration might conduct the hundreds of such tribunals according to the same procedures, Alito concluded that "it seems that petitioner’s tribunal, like the hundreds of others respondents propose to conduct, is very much regular and not at all special."
Alito wrote that "the commissions were appointed, set up, and established pursuant to an order of the President, just like the commission in Ex parte Quirin
Ex parte Quirin
Ex parte Quirin, , is a Supreme Court of the United States case that upheld the jurisdiction of a United States military tribunal over the trial of several Operation Pastorius German saboteurs in the United States...
, 317 U. S. 1 (1942), and the Court acknowledges that Quirin recognized that the statutory predecessor of 'preserved' the President’s power 'to convene military commissions.'" Alito disagreed with Kennedy's assertion that "an acceptable degree of independence from the Executive is necessary to render a commission 'regularly constituted' by the standards of our Nation's system of justice," arguing that Kennedy "offers no support for this proposition (which in any event seems to be more about fairness or integrity than regularity)," and further arguing that the commission in Quirin was no different from the present case.
Finally, Alito wrote that the commission procedures as a whole do not provide a basis for deeming the commissions to be illegitimate. He points to two procedural rules, which the Court found fault with: First, the rule "allowing the Secretary of Defense to change the governing rules 'from time to time';" and second, the rule that "permits the admission of any evidence that would have 'probative value to a reasonable person'". Alito asserts these rules cannot make the commissions illegitimate.
On the first rule Alito argued that not all changes during the course of a trial prejudice
Prejudice
Prejudice is making a judgment or assumption about someone or something before having enough knowledge to be able to do so with guaranteed accuracy, or "judging a book by its cover"...
the defendant, and that some may even help the defendant. In addition, "If a change is made and applied during the course of an ongoing proceeding and if the accused is found guilty, the validity of that procedure can be considered in the review proceeding for that case."
On the second rule, Alito argued that this rule does not violate the international standard incorporated into Common Article 3, because "rules of evidence
Rules of evidence
Rules of evidence govern whether, when, how, and for what purpose, proof of a legal case may be placed before a trier of fact for consideration....
differ from country to country" and "much of the world does not follow aspects of our evidence rules, such as the general prohibition against the admission of hearsay."
Reaction to the decision
The impact of the decision on the petitioner (Hamdan) was that he can still be tried; however, his trial must be in a court, such as a military court-martial, or possibly a commission that has court-like protections.Shortly thereafter, the Military Commissions Act of 2006
Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
may have raised again the issue of which court would hear cases such as Hamdan's. The U.S. Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
has filed notice with several federal judges, and given notice to hundreds of detainees, that the habeas petitions of alien unlawful enemy combatants (or those whose status is to be determined) are not within the jurisdiction of those courts.
The passage and signing of the Act
Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
follows through on President Bush's expressed intention to get explicit Congressional authorization to use military tribunals. Press Secretary Tony Snow
Tony Snow
Robert Anthony "Tony" Snow was an American journalist, political commentator, television news anchor, syndicated columnist, radio host, musician, and the third White House Press Secretary under President George W. Bush. Snow also worked for President George H. W. Bush as chief speechwriter and...
echoed the plan to appeal to Congress.
However, even among Senate Republicans, there were conflicting views. Senators Arlen Specter
Arlen Specter
Arlen Specter is a former United States Senator from Pennsylvania. Specter is a Democrat, but was a Republican from 1965 until switching to the Democratic Party in 2009...
and Lindsey Graham
Lindsey Graham
Lindsey Olin Graham is the senior U.S. Senator from South Carolina and a member of the Republican Party. Previously he served as the U.S. Representative for .-Early life, education and career:...
(the latter a former military prosecutor
Judge Advocate General's Corps
Judge Advocate General's Corps, also known as JAG or JAG Corps, refers to the legal branch or specialty of the U.S. Air Force, Army, Coast Guard, and Navy. Officers serving in the JAG Corps are typically called Judge Advocates. The Marine Corps and Coast Guard do not maintain separate JAG Corps...
) indicated Congress would work quickly to authorize tribunals, while influential Senator John Warner
John Warner
John William Warner, KBE is an American Republican politician who served as Secretary of the Navy from 1972 to 1974 and as a five-term United States Senator from Virginia from January 2, 1979, to January 3, 2009...
suggested a cautious and deliberative response. The potential for Congressional action also provided an avenue for politicking, as Republicans threatened Democratic members of Congress with being labeled weak on terrorism if they did not authorize tribunals.
On July 7, 2006 the Secretary of Defense issued a memo "Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense". This may be the basis of a July 11, 2006, statement by the Bush administration that all detainees at Guantanamo Bay and in U.S. military custody everywhere are entitled to humane treatment under the Geneva Conventions. This declaration appears not to cover CIA
Central Intelligence Agency
The Central Intelligence Agency is a civilian intelligence agency of the United States government. It is an executive agency and reports directly to the Director of National Intelligence, responsible for providing national security intelligence assessment to senior United States policymakers...
detainees and is ambiguous with respect to the interpretation of Common Article 3 and the definition of "humane treatment".
There were some indications that the other detainees being held at facilities throughout the world (e.g. Bagram Air Base
Bagram Air Base
Bagram Airfield, also referred to as Bagram Air Base, is a militarized airport and housing complex that is located next to the ancient city of Bagram, southeast of Charikar in Parwan province of Afghanistan. The base is run by a US Army division headed by a major general. A large part of the base,...
and black sites), might use the Supreme Court's ruling to challenge their treatment. Their reasoning may be that since the Geneva Conventions afforded protection to Hamdan, its other protections might be effective for them as well. Commentators expressed mixed opinions about the strength of this argument.
Implications for theories of executive power
The decision may have important implications for other disputes relating to the extent of executive power and the unitary executive theoryUnitary executive theory
The unitary executive theory is a theory of American constitutional law holding that the President controls the entire executive branch. The doctrine is based upon Article Two of the United States Constitution, which vests "the executive power" of the United States in the President.Although that...
. In particular, it may undermine the Bush administration's legal arguments
NSA warrantless surveillance controversy
The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
for domestic wiretapping
NSA electronic surveillance program
An electronic surveillance program, whose actual name is currently unknown, was implemented by the National Security Agency of the United States in the wake of the September 11, 2001 attacks. It was part of the President's Surveillance Program which was in turn conducted under the overall umbrella...
by the National Security Agency
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
without warrants as required by the Foreign Intelligence Surveillance Act.
Charges dismissed
On June 5, 2007, Hamdan and CanadianCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
youth Omar Khadr
Omar Khadr
Omar Ahmed Khadr is a Canadian child soldier and one of the juveniles held at the Guantanamo Bay detention camp. He was convicted of five charges under the United States Military Commissions Act of 2009 including murder in violation of the law of war and providing material support for terrorism,...
, had all charges against them dismissed.
The judges presiding over their military commissions ruled that the Military Commissions Act did not give them the jurisdiction to try Hamdan and Khadr, because it only authorized the trial of "unlawful enemy combatants". Hamdan and Khadr's Combatant Status Review Tribunals, like those of all the other Guantanamo captives, had confirmed that they were only "enemy combatants".
In December 2007 it was determined that Hamdan was an unlawful enemy combatant. In August of 2008 he was convicted by the military commission of the lesser of two charges and received a sentence of 66 months, reduced by time served to five and a half months.
See also
- List of United States Supreme Court cases, volume 548
- List of United States Supreme Court cases
- Rasul v. BushRasul v. BushRasul v. Bush, 542 U.S. 466 , is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals held in Guantanamo Bay were wrongfully imprisoned...
- Boumediene v. BushBoumediene v. BushBoumediene v. Bush, 553 U.S. 723 , was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba...
Further reading
- National Security Law for Policymakers and Law Students
- Human Rights First: In Pursuit of Justice; Prosecuting Terrorism Cases in the Federal Courts (2009)..
- Testimony of Scott SillimanScott SillimanScott L. Silliman is a Professor of the Practice of Law at Duke Law School, and Executive Director of Duke Law School's Center on Law, Ethics and National Security...
on Hamdan v. Rumsfield: Establishing a Constitutional Process", U.S. Senate Committee on the Judiciary, July 11, 2006
Court documents
- Hague Justice Portal: Hamdan v. Rumsfeld
- Full text (HTML with links to precedents, statutes, and U.S. Constitution)
- Full text - in vLex.us, HTML with links.
- Groups File Amicus Briefs in Case Involving Osama Bin Laden's Driver, Physicians for Human RightsPhysicians for Human RightsPhysicians for Human Rights was founded in 1986 by a small group of doctors who believed the unique scientific expertise and authority of health professionals could bring human rights violations to light and provide justice for victims...
- www.hamdanvrumsfeld.com — A website devoted to the case; contains briefs and other pertinent documents
- Petition for a writ of certiorari: Brief for the respondents in opposition, US Department of Justice, December 2004, U.S. Court of Appeals for the District of Columbia CircuitUnited States Court of Appeals for the District of Columbia CircuitThe United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
, July 15, 2005. - BRIEF OF LEGAL SCHOLARS AND HISTORIANS AS AMICI CURIAE IN SUPPORT OF PETITIONER, SALIM AHMED HAMDAN, v DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al., No. 05-184.
Pentagon documents
News reports, commentary
- High Court Rejects Detainee Tribunals, Washington PostThe Washington PostThe Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...
, June 29, 2006 - Hamdan v. Rumsfeld: The Supreme Court Affirms International Law, JURISTJURISTJURIST is an online legal news service hosted by the University of Pittsburgh School of Law, powered by a staff of more than 40 law students working in Pittsburgh and other US locations under the direction of founding Publisher & Editor-in-Chief Professor Bernard Hibbitts, Research Director Jaclyn...
, June 30, 2006 - Hamdan, Common Article 3 and the True Spirit of the Law of War, JURISTJURISTJURIST is an online legal news service hosted by the University of Pittsburgh School of Law, powered by a staff of more than 40 law students working in Pittsburgh and other US locations under the direction of founding Publisher & Editor-in-Chief Professor Bernard Hibbitts, Research Director Jaclyn...
, July 3, 2006 - U.S. Charges Yemeni Described as Bin Laden Bodyguard, Washington PostThe Washington PostThe Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...
, July 14, 2004 - Fourth Guantanamo Detainee Is Charged, Washington PostThe Washington PostThe Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...
, July 14, 2004 - Bin Laden driver charged in first Guantanamo hearing, USA TodayUSA TodayUSA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth. The newspaper vies with The Wall Street Journal for the position of having the widest circulation of any newspaper in the United States, something it previously held since 2003...
, August 25, 2004 - Court permits terrorists to be tried by military commissions, Washington Legal FoundationWashington Legal FoundationThe Washington Legal Foundation is a non-profit legal organization based in Washington, D.C. Founded in 1977, the Foundation's stated goal is "to defend and promote the principles of freedom and justice." The organization promotes pro-business and free-market positions and is widely perceived as...
, July 15, 2005 - Protecting America's Freedom: National Security and Defense, Washington Legal Foundation, July 15, 2005
- "The Nation's Second-Highest Court" Upholds Military Commissions, FindLawFindLawFindLaw is a business of Thomson Reuters that provides online legal information and online marketing services for law firms. FindLaw was created by Stacy Stern, Martin Roscheisen and Tim Stanley in 1995, and was acquired by Thomson West in 2001....
, July 20, 2005 - Understanding Hamdan v. Rumsfeld
- Why Hamdan is Right about Conspiracy Liability, JURISTJURISTJURIST is an online legal news service hosted by the University of Pittsburgh School of Law, powered by a staff of more than 40 law students working in Pittsburgh and other US locations under the direction of founding Publisher & Editor-in-Chief Professor Bernard Hibbitts, Research Director Jaclyn...
- Supreme Court's Ruling in Hamdan Means Warrantless Eavesdropping is Clearly Illegal, Glenn GreenwaldGlenn GreenwaldGlenn Greenwald is an American lawyer, columnist, blogger, and author. Greenwald worked as a constitutional and civil rights litigator before becoming a contributor to Salon.com, where he focuses on political and legal topics...
, July 9, 2006 - Why the Court Said No, David D. ColeDavid D. ColeDavid D. Cole is an American law professor at the Georgetown University Law Center. He has published in various legal fields including civil rights, criminal justice, constitutional law and law and literature...
, New York Review of BooksThe New York Review of BooksThe New York Review of Books is a fortnightly magazine with articles on literature, culture and current affairs. Published in New York City, it takes as its point of departure that the discussion of important books is itself an indispensable literary activity...
, August 10, 2006 - Will Hamdan Be Another Dred Scott?