Hamdan, a citizen of Yemen,
worked for Osama bin Laden. He was captured in Afghanistan and sent to a
prison in Guantanamo Bay Naval Base in Cuba.
The US charged Hamdan with
conspiracy to commit terrorism, and made arrangements to try him before a
military commission authorized under an Executive Order (Military Commission Order No. 1).
The military commission was
an ad hoc court created by the Executive Branch to try enemy
combatants.
Hamdan filed a petition for a writ
of habeas corpus to be tried in a
civilian court.
Hamdan argued 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 (UCMJ).
Hamdi argued that there is
nothing in the Constitution that could be construed to say that the
Executive Branch has the power to create courts.
Only Congress can create
courts (see Article III Section 1).
The government argued that
the President has plenary power to set up these military commissions
without requiring Congress' authority.
This seems to be against Article
III Section 1 of the Constitution.
The government also argued
that even if you didn't buy the first argument, the Authorization for
the Use of Military Force, (AUMF) gave the President the Statutory authority
to create the military commissions.
The Trial Court ruled for
Hamdan. The government appealed.
The Trial Court found that
the US could not hold a military commission unless it was first shown
that the detainee was a prisoner of war.
The Appellate Court reversed
the decision of the Trial Court. Hamdan appealed.
The Appellate Court found
that military commissions are legitimate forums to try enemy
combatants because they have been
approved by Congress.
The Court found that the Geneva
Convention is a treaty between
nations and as such it does not confer individual rights and remedies.
Basically that means that
if the US violated the treaty, then Yemen could make a claim that the US
broke the treaty, but it didn't give Hamdan the right to make a personal
claim.
The Court found that under
the terms of the Geneva Convention,
al-Qa'ida and its members are not covered, because it only applies to
nations, not to non-state actors.
The Court found that even if
the Geneva Convention could be
enforced in US Courts, it only guarantees only a certain standard of
judicial procedure (a "competent tribunal") without speaking to
the jurisdiction in which the prisoner must be tried.
The Court found that the
President has the constitutional authority to try Hamdan because Congress
authorized such activity by Statute.
The Court found that the
Judicial Branch does not have the authority to enforce a treaty (even
though the Constitution explicitly states that Treaties are to be
enforced.)
The government tried to block
the appeal, but the US Supreme Court decided to hear the case anyway
Section 1005 of the Detainee
Treatment Act (DTA), gave the DC Circuit Court of Appeals exclusive
jurisdiction to review decisions of cases being tried before military
commissions,
It was argued that Section
1005 did not explicitly bar the US Supreme Court from hearing the case,
so it was ok.
The US Supreme Court reversed
the Appellate Court.
The US Supreme Court found
that the President did not have authority to set up the war crimes
tribunals.
The Court found that the
special military commissions were illegal under both UCMJ and the Geneva Conventions because in those trials:
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 hearsay, unsworn live
testimony, and statements gathered through torture; and
Appeals are not heard by
Courts, but only within the Executive Branch.
The Court found that the Geneva
Conventions do apply because Article
3 of the Convention affords minimal protection to combatants in the
territory of a signatory (and Afghanistan is a signatory).
Those minimal protections
include being tried by a regularly constituted court, which the military
commission is not.
The Court mentioned that
there are three situations where Military Commissions can be used:
When the country is under
martial law.
When the court is being
held in enemy territory during a war.
When there is an alleged
violation of the Laws of War.
Hamdan was charged with conspiracy, which is not traditionally considered to be
a violation of the Laws of War.
The Court did not
decide whether the President possessed the Constitutional power to
convene military commissions like the one created to try Hamdan.
The Court noted that even
if the President 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 UCMJ, or
authorized by Statute. As to the statutory authorization, there is
nothing in the AUMF
"even hinting" at expanding the President's war powers beyond
those enumerated in Article 21.
The dissents generally agreed
with the Appellate Court's arguments, as well as a general feeling that,
during wartime, everybody had a duty to get out of the President's way and
defer to his decisions.
They also felt that the US
Supreme Court did not have jurisdiction over this case due to Section
1005 of the DTA.
Basically, this ruling states
that if you are going to try someone, you have to follow international
standards for a trial, you have to try them in an appropriate court, and
you have to give them legal protections. You can't just make up a new
judicial system with rules that are inordinately favorable to the US
government.
This case did not decide any
Constitutional Law questions. It was simply a case of deciding if
applicable Treaties and Statutes apply.
E.g. what does the UCMJ require? What do the Geneva
Conventions require?
The US Supreme Court said
that contrary to the administration's claim, the President is still
subject to the laws made by Congress.
The US Supreme Court said
that the Geneva Conventions apply
in all cases.
