ISSUE 1: COURT JURISDICTION
| Hamdan (Affirmative Team) | Rumsfeld (Negative Team) |
| Question A. Does the court have authority to hear this petition, which was filed before the Detainee Treatment Act (DTA) took effect? | Question A. Does the court have authority to hear this petition, which was filed before the Detainee Treatment Act (DTA) took effect? |
| Yes. Although the DTA prevents courts from hearing and considering petitions involving Guantanamo detainees, it is not retroactive. It only applies to petitions filed after the law took effect. It is significant that Congress considered, but ultimately rejected, earlier versions of the law that would have specifically prevented courts from hearing pending cases. See Opinion of the Court, pages 7-20. [Note: All page numbers refer to the slip opinions in Hamdan as posted on the Supreme Court's web site.] | No. The DTA plainly states, "No court, justice, or judge shall have jurisdiction to hear or consider" a habeas petition filed by or on behalf of a Guantanamo detainee. Congress clearly intended this to apply to all Guantanamo petitions, even those filed before the law took effect, as did the President when he signed the DTA into law. As the Supreme Court has done in other cases, the DTA should be given "immediate effect in pending cases, absent an explicit statutory reservation." See Justice Scalia's dissent, pages 1-15. |
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| Question B. May a civilian court review an ongoing military proceeding? | Question B. May a civilian court review an ongoing military proceeding? |
| Yes. The military commission set up to try the Guantanamo detainees is not part of the integrated military court system established by Congress. It is therefore not entitled to the deference that military proceedings are normally given by civilian courts. There is already sufficient reason to conclude that the commission as set up is unlawful. It is therefore proper for civilian courts to review Hamdan's petition now, even before the military commission has reached a final decision in his case. See Opinion of the Court, pages 20-25, 52-53. | No. Civilian courts should normally abstain from interfering in military proceedings, especially when such a proceeding has yet to reach a final decision. The presumption at this stage should be that the Guantanamo commission will try Hamdan fairly and lawfully. The Supreme Court can and should wait to decide all these issues after the U.S. Court of Appeals for the D.C. Circuit reviews the commission's final decision, as provided in the DTA. See Justice Thomas' dissent, pages 1-6; Justice Scalia's dissent, pages 16-24. |
ISSUE 2: U.S. DOMESTIC LAW
| Hamdan (Affirmative Team) | Rumsfeld (Negative Team) |
| Question A. Does the President require specific Congressional authorization to set up a military commission, beyond what was given in the Authorization for Use of Military Force Act (AUMF) and the DTA? | Question A. Does the President require specific Congressional authorization to set up a military commission, beyond what was given in the Authorization for Use of Military Force Act (AUMF) and the DTA? |
| Yes. The AUMF 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." But neither the AUMF nor the DTA suspended the provisions of the Uniform Code of Military Justice (USMJ) or authorized the creation of the Guantanamo commission. See Opinion of the Court, pages 25-30. | No. Not only does the President as Commander-in-Chief have inherent powers to try enemy combatants by military commission, but the AUMF authorized the President "to use all necessary and appropriate force" against entities associated with the attacks of September 11, 2001. That authority implicitly includes the power to set up military tribunals as the President deems necessary to try any alien detained by the military as a terrorist suspect, including Hamdan. See Justice Thomas's dissent, pages 1-6; 28-30. |
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| Question B. Must the Guantanamo commission's procedural rules be patterned after those set forth in the Uniform Code of Military Justice (UCMJ)? | Question B. May a civilian court review an ongoing military proceeding? |
| Yes. The UCMJ requires that the procedural rules established for a military commission be "uniform insofar as practicable" with those established for a regular court-martial. Nothing suggests that it would be impracticable for the Guantanamo commission to use procedures similar to those used in court-martials. The UCMJ is designed to accommodate the circumstances of war while ensuring a fair trial. See Opinion of the Court, pages 49-62. | No. It would be impracticable to give the Guantanamo detainees procedural trial guarantees similar to those in civilian courts or even those in court martials as provided under the UCMJ. Soldiers on the battlefield should not have to concern themselves about gathering and preserving evidence of war crimes as though they were police officers. It is up to the President to decide which UCMJ procedures are practicable for use by the military commission. See Justice Thomas' dissent, pages 30-39. |
ISSUE 3: U.S. INTERNATIONAL TREATIES
| Hamdan (Affirmative Team) | Rumsfeld (Negative Team) |
| Question A. Do U.S. courts have the power to enforce U.S. international treaty obligations? | Question A. Do U.S. courts have the power to enforce U.S. international treaty obligations? |
| Yes. Courts in the U.S. have the power and duty to enforce all U.S. international treaty obligations. Article VI of the U.S. Constitution specifically makes U.S. treaties "the supreme Law of the Land." Also, the provisions of the Geneva Conventions are part of the law of war, compliance with which is a pre-condition for any military court set up to try war crimes. See Opinion of the Court, pages 63-65. | No. The DTA plainly states, "No court, justice, or judge shall have jurisdiction to hear or consider" a habeas petition filed by or on behalf of a Guantanamo detainee. Congress clearly intended this to apply to all Guantanamo petitions, even those filed before the law took effect, as did the President when he signed the DTA into law. As the Supreme Court has done in other cases, the DTA should be given "immediate effect in pending cases, absent an explicit statutory reservation." See Justice Scalia's dissent, pages 1-15. |
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| Question B. Are non-state combatants covered by the Geneva Conventions and entitled to hear the testimony and see the evidence presented against them at trial? | Question B. Are non-state combatants covered by the Geneva Conventions and entitled to hear the testimony and see the evidence presented against them at trial? |
| Yes. Common Article 3 of the Geneva Conventions gives certain minimal protections even to non-state combatants who are not associated with a country that signed the treaties. They must be tried in a "regularly constituted court" with "all the judicial guarantees which are recognized as indispensable by civilized peoples." Absent disruptive conduct or consent, Hamdan must be allowed to hear the testimony and see the evidence used against him at trial. The UCMJ has procedures in place to safeguard classified information. See Opinion of the Court, pages 65-72. | No. Treaties such as the Geneva Conventions do not apply to non-state combatants who are not acting on behalf of a nation that signed the treaties. Enemy combatants do not have trial rights like criminal defendants enjoy in U.S. civilian and military courts. They must not be given access to classified war-related information. See Justice Thomas' dissent, pages 44-48; Justice Alito's dissent, pages 1-6. |
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| Question C. Does the Guantanamo commission lack the authority to try Hamdan for alleged "conspiracy" to commit a war crime? | Question C. Does the Guantanamo commission lack the authority to try Hamdan for alleged "conspiracy" to commit a war crime? |
| Yes. Conspiracy is not a recognized violation of the law of war — and for good reason. With few exceptions, war-crime military trials are restricted to trying acts allegedly committed during war in the war zone. Hamdan is accused of being Osama bin Laden's "bodyguard and personal driver," but is not accused of any overt act that would violate the law of war. See Justice Stevens' opinion, pages 31-49. | No. There are a number of historical references to and examples of individuals tried for conspiracy before military commissions, including the Confederate Commandant at Andersonville Prison during the Civil War. See Justice Thomas' dissent, pages 7-28. |