Separation of Powers
Hamdan v. Rumsfeld (2006)
In response to the terrorist attacks by al Qaeda on September 11, 2001, Congress enacted the Authorization for Use of Military Force Act (AUMF). This legislation authorized the President "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 October 2001, the United States led a coalition of nations in a military attack against Afghanistan's Taliban forces, which had harbored Osama Bin Laden and other top al Qaeda leaders. Hundreds of persons detained by U.S. forces in Afghanistan and elsewhere were later transported to the U.S. naval base at Guantanamo Bay, Cuba.
On November 13, 2001, President George W. Bush issued a presidential order entitled "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism." The order found that it was "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." It provided that "any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission" and "may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death."
More detailed procedures governing these military commissions were set forth in a 2002 supplemental Department of Defense Order entitled, "Military Commission Order No. 1." One controversial section of this order provided that defendants could be barred from the courtroom and prevented from hearing certain evidence against them.
Habeas Corpus Petition of Salim Hamdan
Salim Hamdan, a former Yemeni driver for Bin Laden in Afghanistan, was captured by Afghan warlords and turned over to U.S. forces in late 2001. He was transported in June 2002 to Guantanamo Bay, then designated in 2003 as one of a small group of detainees to be tried before the military commission. In 2004, Hamdan was formally charged with conspiracy "to commit . . . offenses triable by military commission."
Hamdan filed a petition for writ of habeas corpus in the U.S. District Court for the Western District of Washington, naming Defense Secretary Donald Rumsfeld as a defendant. In 2004, his case, and those of other Guantanamo Bay detainees, was transferred to the D.C. U.S. District Court. In his petition, Hamdan sought to establish that his impending trial before a military commission was illegal. He argued the following: 1) the commission's procedures deviated from those that Congress established in the Uniform Code of Military Justice (UCMJ); 2) conspiracy had never been a war crime and could not be unless explicitly authorized by Congress; 3) the provision potentially excluding defendants from the courtroom during parts of the trial made the process fundamentally unfair and violated Hamdan's right under the Geneva Conventions only to be sentenced by a "regularly constituted tribunal."
The Government responded (1) that the AUMF had implicitly authorized the President to establish military commissions; (2) that it was within the President's discretion to designate "conspiracy" as a war crime under the circumstances; and (3) that the provisions of the Geneva Conventions were not judicially enforceable. The Government also argued that resolution of these issues should properly be deferred until after trial.
In 2004, the U.S. District Court for the District of Columbia ruled in Hamdan's favor. That decision, however, was reversed in 2005 by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. On November 7, 2005, the U.S. Supreme Court agreed to review the case.
Detainee Treatment Act of 2005
A few weeks later, on December 30, 2005, Congress passed the Detainee Treatment Act (DTA). The legislation provides that "no court . . . shall have jurisdiction to hear or consider . . . an application for habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay." It gave the U.S. Court of Appeals for the District of Columbia Circuit exclusive jurisdiction to hear the appeal of any military commission conviction.
The Government argued that the DTA barred any federal court, including the Supreme Court, from hearing habeas corpus petitions from detainees at Guantanamo Bay. Hamdan and his lawyers responded that, because the DTA did not include a retroactivity clause, it did not apply to pending habeas corpus petitions, only those filed after the law took effect on December 30, 2005.
Decision of the United States Supreme Court
On June 29, 2006, the U.S. Supreme Court, in a 5-3 decision, ruled that the proposed military commissions were illegal. Chief Justice John Roberts did not participate, having been one of the three judges who issued the decision being appealed.
Writing for the majority, Justice John Paul Stevens held that the DTA did not prevent the Court from hearing Hamdan's appeal. Given the absence of specific language making the law retroactive, the Court held that the DTA only barred consideration of cases filed after December 30, 2005. Thus, Hamdan's appeal, which was already pending when the DTA was enacted, could proceed. The Court also rejected the military's claim that the court should defer entering any judgment until after trial.
Reaching the merits of the case, the majority ruled that the military tribunals were improper because they were not established in accordance with the procedures for military commissions established by the UCMJ and because there was no military necessity to create ad hoc commissions and ad hoc procedures. The Court also ruled that "conspiracy" to commit acts triable by a military commission is not a recognized war crime and cannot be tried as such absent Congressional authorization. Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsberg, and Stephen Breyer all agreed with Justice Steven's majority opinion. Four of them — Justices Kennedy, Souter, Ginsberg, and Breyer — wrote in a separate opinion that they considered the provision potentially denying defendants access to their military commission trial so inherently unfair that it deprived enemy combatants of their right under the Geneva Conventions not to be tried and punished except by a competent tribunal. Justice Kennedy, in a concurring opinion, stated that he did not believe the Court needed to address this last point because the tribunals already could be declared illegal for not complying with American domestic law, the UCMJ.
Justice Breyer, in a one-page concurrence, noted that, while Congress has denied the President the legislative authority to create military commissions of the kind at issue in Hamdan v. Rumsfeld, nothing prevents the President from returning to Congress to seek the necessary authority.
Justices Antonin Scalia, Clarence Thomas, and Samuel Alito dissented. Justice Scalia argued that, from a procedural standpoint, the DTA prevented the judiciary from hearing this case. He also stated that the Courts should defer to the military's judgment, at least until Hamdan was actually tried. He noted that the DTA allowed detainees to appeal their convictions by a military tribunal to the U.S. Court of Appeals for the D.C. Circuit, thus, providing some judicial review of their situation. Justice Thomas pointed to historical examples where individuals, including the Commandant of the infamous Andersonville Prison during the Civil War, were convicted of conspiracy to commit war crimes. Finally, Justice Alito noted that an argument could be made that the military commissions were regularly constituted tribunals under the Geneva Conventions because they were enacted by the President pursuant to the AUMF. He questioned whether it was wise to try to define "tribunal" solely along the model of U.S. civilian courts.
Developments Since the Hamdan Decision
Since the Hamdan decision was issued on June 28, 2006, the executive and legislative branches of government have been in negotiations over several possible legislative responses. Meanwhile, in the judicial branch, now that the Supreme Court has ruled on whether the DTA deprived courts of jurisdiction, the District of Columbia federal courts have resumed work on the dozens of Guantanamo detainee cases pending before them.