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...Parties 2 Procedural Parity between Courts-Martial and Military Commissions 3 Common Article of the Geneva Conventions III Impact of the Decision A Separation of Powers B Has Anything Changed on the Ground at Guantanamo? C Restoring the Balance between Authority and Obligation under the Law of War IV Where to from Here? A Giving the Commissions the Rubber-Stamp of Approval B Using the Court-Martial Model C Back Where We Started V A Fork in the Road
We witnessed an extraordinary event three weeks ago in the Supreme Court, where a man with a fourth-grade Yemeni education accused of conspiring with one of the world's most evil men sued the President in the nation's highest court--and won.
--Professor Neal Katyal (1)
I BACKGROUND
The United States Congress responded to the terrorist attacks of September 11, 2001 by adopting a joint resolution which provided that the President
is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism ... (2)
Acting pursuant to the Authorisation for Use of Military Force ('AUMF'), and having determined that the Taliban regime in Afghanistan had harboured and supported al Qaeda, the terrorist organisation responsible for the attacks, US President George W Bush ordered the US Armed Forces to invade Afghanistan. In the ensuing hostilities, hundreds of individuals, including Yemeni national Salim Ahmed Hamdan, were captured and detained by Coalition Forces.
On 13 November 2001, while the US Armed Forces were still actively involved in Afghanistan, a Presidential order designed to regulate the detention, treatment and trial of individuals detained in the war against terrorism was issued. (3) In that Military Order, the President made a number of findings, including that:
* 'International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces';
* for the effective conduct of military operations and prevention of terrorist attacks, 'it is necessary for individuals subject to this order ... to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals';
* given the danger to the safety of the US and the nature of international terrorism, it is 'not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts'. (4)
Section 3 of the Military Order provides that any 'individual subject to this order' shall be 'detained at an appropriate location designated by the Secretary of Defense outside or within the United States'. (5) For more than 700 individuals, this 'appropriate location' would be the US Naval Base at Guantanamo Bay, Cuba. Having been detained by Afghan militia and then transferred to US forces in November 2001, Hamdan was transported to the Guantanamo Naval Base in June 2002. Over a year later, on 3 July 2003, President Bush announced his determination that Hamdan and five other detainees at Guantanamo Bay were subject to his Military Order, and were therefore eligible for trial by military commission. After another year had passed, on 13 July 2004 Hamdan was charged with one count of conspiracy to commit offences triable by military commission.
The Charge Sheet alleges that between February 1996 and November 2001, in Afghanistan, Pakistan, Yemen and other countries, Hamdan
willfully and knowingly joined an enterprise of persons who shared a common criminal purpose and conspired and agreed with Usama bin Laden ... and other members and associates of the al Qaida organization ... to commit the following offenses triable by military commission: attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism. (6)
Further, it alleges that Hamdan met bin Laden in Kandahar, Afghanistan in 1996 and became his bodyguard and personal driver, a position he held until his capture in November 2001. (7) During this five year period, Hamdan allegedly committed a number of overt acts, including: delivering weapons, ammunition or other supplies to al Qaeda members and associates; driving bin Laden and other high-ranking al Qaeda members and associates throughout Afghanistan; accompanying bin Laden to various al Qaeda-sponsored training camps; and undergoing training in handling rifles, handguns and machine guns at the al Qaeda-sponsored al Farouq training camp. (8)
While the Charge Sheet contains 'no allegation that Hamdan had any command responsibilities, played a leadership role, or participated in the planning of any activity', (9) it does allege that he believed that bin Laden and his associates were involved in the August 1998 attacks on the US embassies in Kenya and Tanzania, the October 2000 attack on the USS Cole in Yemen, and the attacks of September 11. (10)
Prior to this charge being laid, Hamdan's legal representatives had filed a petition for mandamus or habeas corpus in the District Court for the Western District of Washington, challenging the US Government's efforts to prosecute him before a military commission. On 2 September 2004, the case was transferred to the District Court for the District of Columbia. Meanwhile, military commission proceedings had begun at Guantanamo Bay. (11) Oral argument was heard before the District Court on 25 October 2004, and Judge James Robertson granted Hamdan's petition for habeas corpus on 8 November 2004. (12) Judge Robertson held, among other things, that Hamdan could not be tried by a military commission unless and until a competent tribunal determined that he was not a prisoner of war under the Geneva Convention Relative to the Treatment of Prisoners of War. (13) The District Court therefore enjoined the Secretary of Defense, Donald Rumsfeld, from conducting any further military commission proceedings against Hamdan.
An appeal followed, and the Court of Appeals for the District of Columbia Circuit unanimously reversed the first instance decision on 15 July 2005. (14) On 7 November 2005, the US Supreme Court granted certiorari to decide whether the military commission convened to try Hamdan had the authority to do so. (15) The case was argued before eight Justices on 28 March 2006; the newly appointed Chief Justice, John Roberts, took no part in the Supreme Court decision due to his participation in the decision of the Court of Appeals as a Circuit Judge the previous year. Judgment was handed down on 29 June 2006.
II THE DECISION
In a 5-3 split decision, the Supreme Court found in favour of Hamdan, the petitioner. Justice Stevens delivered the opinion of the Court, which Justices Souter, Ginsburg and Breyer joined in full, and which Justice Kennedy joined in part. Justices Scalia, Thomas and Alito each appended dissenting opinions.
The Court held that the military commission convened to try Hamdan lacked power to proceed because its structure and procedures violated both the Uniform Code of Military Justice ('UCMJ') (16) and Common Article 3 of the Geneva Conventions. (17) Four Justices also concluded that the offence with which Hamdan was charged is not an offence that may be tried by military commission.
A The Detainee Treatment Act of 2005
On 30 December 2005, while Hamdan's case was pending before the Supreme Court, Congress enacted the Detainee Treatment Act of 2005 ('DTA'). (18) The DTA is best known for the restrictions it places on the treatment and interrogation of detainees in US custody, and the procedural protections it provides for US personnel accused of engaging in improper interrogation. However, in [section] 1005(e), it also addresses judicial review of the detention of enemy combatants. This section sets strict limits on the ability of Guantanamo Bay detainees to bring actions in the federal courts challenging their confinement or the procedures used to adjudicate their guilt.
On 13 February 2006, the US Government filed a motion to dismiss the writ of certiorari on the basis of that recently enacted statute. The Supreme Court postponed its ruling on that motion pending argument on the merits, but the motion was ultimately denied.
Paragraph 1 of [section] 1005(e) purports to amend the federal habeas corpus statute (19) to the effect that 'no 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'. Paragraph 3 of [section] 1005(e) vests in the Court of Appeals for the DC Circuit the 'exclusive jurisdiction to determine the validity of any final decision rendered' by the military commissions. Review is automatic for any alien sentenced to death or a term of imprisonment of 10 years or more, but is granted at the Court's discretion in all other cases. The scope of review is limited to the consideration of:
(i) whether the final decision was consistent with the standards and procedures specified in [Military, Commission Order No 1 (20)]; and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States. (21)
The DTA contains an 'effective date' provision in [section] 1005(h), which provides that in general, [section] 1005 will take effect on the date of its enactment (that is, 30 December 2005). However, with regard to review of military commission decisions, [section] 1005(h) provides that [section] 1005(e)(3) 'shall apply with respect to any claim whose review ... is pending on or after the date of the enactment of this Act'. (22)
The threshold issue before the Supreme Court, therefore, was whether the purported amendment to the habeas corpus statute in [section] 1005(e)(1)--which was not expressly stated to apply with respect to any pending claim--affected habeas petitions that were already filed and pending as of 30 December 2005.
The Government argued that [section] 1005(e) had 'the immediate effect, upon enactment, of repealing federal jurisdiction not just over detainee habeas actions yet to be filed but also over any such actions then pending in any federal court', including the Supreme Court. (23) Accordingly, it argued that the Court had no jurisdiction to review the Court of Appeals' decision.
Justice Ginsburg expressed concern about the implications of this assertion in oral argument:
This law was proposed and enacted some weeks after this Court granted cert in this very case. It is an extraordinary act, I think, to withdraw jurisdiction from this Court in a pending case. Congress didn't say, explicitly, it was doing that.... So, why should we assume that Congress withdraw our jurisdiction to hear this case once the case was already lodged here? (24)
Hamdan objected to the Government's theory on both constitutional and statutory grounds. (25) The Court found it unnecessary to consider Hamdan's constitutional arguments, as they found ordinary principles of statutory construction sufficient to rebut the Government's theory that Hamdan's case, which was pending at the time of enactment, was affected by the DTA. Rather, the Court found that the DTA preserved jurisdiction over pending habeas cases. (26) In his dissenting opinion, Justice Scalia, joined by Justices Thomas and Alito, strongly disagreed with the Court's reading of the DTA, describing it as 'patently erroneous'. (27) He considered that as of the date of enactment
no court had jurisdiction to 'hear or consider' the merits of petitioner's habeas application. This repeal of jurisdiction is simply not ambiguous as between pending and future cases. It prohibits am' exercise of jurisdiction, and it became effective as to all cases last December 30. (28)
He concluded that 'the Court has made a mess of this statute', (29) stating that:
The Court's interpretation transforms a provision abolishing jurisdiction over all Guantanamo-related habeas petitions into a provision that retains jurisdiction over cases sufficiently numerous to keep the courts busy for years to come. (30)
In addition, Justice Scalia stated that even if the Court's reading is correct and Congress 'had not clearly and constitutionally eliminated jurisdiction over this case', (31) equitable principles counsel that the Court abstain from exercising any jurisdiction 'supposedly retained'. (32) In doing so, he accepted the Government's position that the Court should apply the rule that civilian courts should await the final outcome of ongoing military proceedings before entertaining an attack on those proceedings. (33)
Like the District Court and the Court of Appeals before it, the Supreme Court rejected the Government's argument that the Court should abstain from exercising jurisdiction over Hamdan's habeas corpus petition. Abstention is normally justified in the face of ongoing court-martial proceedings on the basis of both military necessities relating to military discipline, and faith in the fairness of the military court system established by Congress. (34) The Court held that neither of these bases for abstention existed with respect to the military commission convened to try Hamdan. (35) First, Hamdan was not a member of the US Armed Forces, so concerns about military discipline did not apply. Second, Hamdan's military commission was not part of the integrated system of military courts, which provides substantial procedural protections, strict rules of evidence, and appellate review by independent civilian judges. Rather, Hamdan had no right to appeal any conviction to the civilian judicial system or any other body that is structurally insulated from military influence. (36)
With regard to those same bases for abstention, Justice Scalia found that the Court had failed to make any inquiry into 'whether military commission trials might involve other "military necessities" or "unique military exigencies" comparable in gravity to those at stake in Councilman', which would counsel against the Court's interference. (37) He considered that like the military necessities relating to duty and discipline which required abstention in Councilman, military necessities relating to the 'disabling, deterrence, and punishment of the mass-murdering terrorists of September 11 require abstention all the more here'. (38) He also disagreed with the second basis for abstention, finding that the DTA creates an avenue for consideration of Hamdan's claims. (39) Finally, Justice Scalia cited a third consideration in favour of abstention: that the Court's interference in this case could bring
the Judicial Branch into direct conflict with the Executive in an area where the Executive's competence is maximal and ours is virtually nonexistent. We should exercise our equitable discretion to avoid such conflict. Instead, the Court rushes headlong to meet it. (40)
Against Justice Scalia's objections, the Court held that in view of the public importance of the questions raised by the case, and the compelling interest of both parties 'in knowing in advance whether Hamdan may be tried by a military commission that arguably is without any basis in law and operates free from many of the procedural rules prescribed by Congress for courts-martial', it would decide on those questions without any avoidable delay. (41)
Having determined this threshold issue in favour of Hamdan, the Court proceeded to assess the merits of the case: whether the military commission convened to try Hamdan was authorised.
B Authorisation to Convene the Military Commission
The Court began by noting that the military commission--an institution used from time to time in American military history--is 'a tribunal neither mentioned in the Constitution nor created by statute'. (42) Rather, it 'was born of military necessity'. (43) It described the use of such commissions during both the Mexican War of the 1840s and the American Civil War as being 'driven largely by the then very limited jurisdiction of courts-martial'. (44) However, the Court held that military exigency alone will not justify the establishment of penal tribunals not authorised by the United States Constitution; that authority, if it exists, flows from the powers granted jointly to the President and to Congress in time of war. (45)
The Constitution makes the President the Commander-in-Chief of the Armed Forces, (46) but vests in Congress the powers to declare war, make rules concerning captures on land and water, and to define and punish offences against the law of nations. (47) The Court quoted the following description of the 'interplay between these powers':
The power to make the necessary laws is in...
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