Steve Keadey publishes article regarding Hamdan v. Rumsfeld in The Constitutionalist
Ellis & Winters
This article previously appeared in The Constitutionalist (January 2007). It is reprinted with permission.
By Stephen C. Keadey
On the last day of the Supreme Court’s 2006 term, the Court issued its much-anticipated decision in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), the most recent chapter in its war-on-terror jurisprudence. Hamdan addressed the constitutional legitimacy of a military commission created by the president to try an alien detainee captured in Afghanistan during the ongoing conflict between the United States and al-Qaeda.
The Court declared the tribunal unconstitutional in a decision that limited the president’s power to try Guantanamo Bay detainees to statutory boundaries. The military commission, the Court held, exceeded the president’s authority, granted by Congress under the Uniform Code of Military Justice (UCMJ), to create such tribunals. The Court further held that the commission violated Article 3 of the Geneva Conventions, part of the “law of war” on which Congress conditioned its grant of authority. In its establishment of limits on presidential power, Hamdan marks a significant milestone in the evolving relationship among the three branches of the federal government in the war on terrorism.
The case concerned a habeas petition by Salim Ahmed Hamdan, a Yemeni national who served as Osama bin Laden’s bodyguard and chauffeur. In 2001, militia forces in Taliban-governed Afghanistan captured Hamdan and turned him over to the United States military. He arrived at Guantanamo Bay prison in 2002, and President Bush later declared him eligible for trial by military commission. In 2004, Hamdan was charged with one count of conspiracy to commit “offenses triable by military commission.” The military commission created to try Hamdan had started but not completed its work when the Court issued its decision. Under the commission’s procedures, a presiding officer ruled on questions of law and evidentiary issues. The presiding officer also was empowered to “close” part of the proceeding to protect classified information, intelligence sources and methods, or other national security interests. Similarly, the accused and his civilian counsel could be denied access to certain “protected information” presented as evidence. The presiding officer could admit any evidence with probative value, including hearsay, evidence obtained by coercion, and unsworn witness statements.
The commission rules gave Hamdan a right to appointed military counsel, and he could hire civilian counsel at his own expense. He also was entitled to a copy of the charges against him, to a presumption of innocence, and to certain other rights traditionally afforded criminal defendants in military courts-martial. Significantly, however, Hamdan and his civilian counsel could be precluded from learning, at any time, what evidence was presented during any part of the proceeding that was “closed.” His military counsel would be privy to the closed sessions, but the presiding officer could order the lawyer not to disclose to her client what had happened in closed session.
Appeals were confined to the Secretary of Defense, the president, and their military appointees. The Secretary of Defense also had the authority to change the commission’s rules “from time to time,” and he exercised that after Hamdan’s trial started.
Hamdan challenged the commission’s legitimacy in federal district court. He claimed that the commission’s procedures violated the basic tenets of military and international law, especially the right to learn the evidence used against him.
Hamdan also claimed that neither a relevant statute nor the law of war supported trial by military commission for the crime of conspiracy, the only charge against him.
The U.S. District Court for the District of Columbia granted Hamdan’s habeas petition, stayed the commission’s proceedings, and held that the tribunal violated both the UCMJ and the Third Geneva Convention because the commission could convict based on evidence that Hamdan could not see. A panel of the D.C. Circuit, in an opinion by now-Chief Justice Roberts, reversed on grounds that the commission did not run afoul of the UCMJ and that the Geneva Conventions did not apply to Hamdan and were not judicially enforceable by individual defendants.
In a 5-3 decision written by Justice Stevens and joined by Justices Kennedy, Souter, Ginsburg, and Breyer, the Supreme Court (without the recused Chief Justice) held that the structure and procedures of Hamdan’s commission exceeded the president’s authority to try detainees by military tribunal. The Court concluded that by enacting the UCMJ, Congress had authorized the use of some form of the military commission. Hamdan’s commission, though, failed to satisfy the minimum procedural standards of both the UCMJ and Article 3 of the Geneva Conventions. A plurality, without Justice Kennedy, further concluded that the UCMJ did not authorize a military commission to try Hamdan on the specific charge against him conspiracy to commit war crimes and that Article 3 mandated that Hamdan be permitted to attend his trial and to know the evidence against him.
Before the Court could consider the merits of Hamdan’s case, it had to clear two formidable preliminary challenges. Its determination to do so, based on the creative treatment of precedent, suggests that a majority of the Court believed that the issues raised by Hamdan’s appeal required prompt attention.
First, the Court denied the government’s motion to dismiss based on the Detainee Treatment Act of 2005 (“DTA”). The DTA, enacted after the Court granted certiorari in this case, provided that “no court, justice or judge shall have jurisdiction to hear or consider” habeas petitions from aliens detained at Guantanamo Bay. Instead, the statute gave the D.C. Circuit exclusive appellate jurisdiction to review the results of military commissions. The DTA stated that certain of its provisions would “take effect” on the date of its enactment, but this statement did not expressly mention the section that stripped habeas jurisdiction.
The Court held that the DTA did not bar its consideration of Hamdan’s case. Because the DTA listed sections to “take effect” immediately, and did not include the section on habeas jurisdiction on the list, the majority concluded that Congress did not intend to overcome the Court’s traditional presumption against applying jurisdictional statutes retroactively to pending cases. This conclusion, based on “ordinary principles of statutory construction,” enabled the Court to decide the case and to avoid some tricky questions about Congress’s power to strip the Court’s habeas jurisdiction.
Second, the Court declined the government’s invitation, based on long-established principles of comity between the civilian and military justice systems, to abstain from intervening in the commission’s proceedings until they concluded. The Bush Administration argued, based on Schlesinger v. Councilman, 420 U.S. 738 (1975), in which the Court abstained from intervening in a pending court-martial, that the Court should await the commission’s decision before it entertained a challenge to that decision. The Court held that the comity considerations of Councilmanthe importance of military discipline and respect for Congress’s creation of an integrated system of military courts did not apply to Hamdan’s petition.
On the merits, the Court held that the president did not have the authority to try Hamdan using the military commission in its current form. The president’s authority to create such a commission, the majority observed, must be founded on the war powers wielded by the executive and legislative branches. Absent a direct claim to Article II authority, which the Bush Administration did not claim in this case, the Court considered potential statutory foundations for the president’s authority to create Hamdan’s commission. Following its decision in Ex parte Quirin, 317 U.S. 1 (1942), the Court held that Article 21 of the UCMJ authorized the president’s use of military tribunals to try “offenders or offenses that by statute or by the law of war may be tried by such military commissions.” The Court held that Hamdan’s commission exceeded this statutory grant of authority and, therefore, amounted to an unconstitutional exercise of executive power.
The Court’s analysis began with Quirin’s recognized limits on the president’s power to create military commissions. In that case, which involved the trial of seven German saboteurs captured in the United States during the Second World War, the Court held that Congress authorized the president to create such commissions only “with the express condition that the president and those under his command comply with the laws of war.” Applying this standard, the Court held that Hamdan’s commission failed to conform to the laws of war, a body of material that encompasses the American common law of war, the entire UCMJ, and the “rules and precepts of the law of nations,” including the Geneva Conventions.
Because the commission’s procedures ran afoul of the UCMJ and Article 3 of the Geneva Conventions, the commission exceeded the authority granted to the president under Article 21 of the UCMJ. The president, Justice Stevens wrote, “may not disregard limitations that Congress has, in the proper exercise of its own war powers, placed on his powers.” Before it described the ways that the commission violated the laws of war, the Court summarily rejected the Administration’s argument that Congress had specifically authorized Hamdan’s commission in statutes enacted since Sept. 11, 2001. The majority opinion made clear, despite a passionate dissent by Justice Thomas, that neither the DTA nor the Authorization for the Use of Military Force (AUMF), enacted after the Sept. 11 attacks, expanded the president’s authority to convene military commissions beyond that established in the UCMJ.
Having found no additional statutory authorization for the commission, the Court next concluded that the commission’s procedures ran afoul of the UCMJ. That Act authorizes the president to promulgate regulations to govern courts-martial and military commissions. Under Article 36(b) of the UCMJ, however, such rules must be “uniform insofar as practicable,” a phrase the majority construed to mean that “the rules applied to military commissions must be the same as those applied to courts-martial unless such uniformity proves impracticable.” Any departure from this “uniformity principle,” Justice Stevens wrote, must be tailored to the military exigency that requires it.
The Court held that the president had not determined that court-martial procedures would be impracticable to try Hamdan. His declaration that civilian criminal procedure would be impractical did not count, the majority concluded because that announcement did not claim that the commission must deviate from court-martial rules.
Moreover, the Court held, nothing in the record suggested that it would be impracticable to use court-martial procedures to try Hamdan. The majority dismissed the Bush Administration’s proffered reason to deviate from standard court-martial procedure”the danger to the safety of the United States and the nature of international terrorism” as insufficient.
Having determined that the rules governing Hamdan’s commission were “illegal,” the Court further held that those procedures violated Article 3 of the Geneva Conventions (often referred to as Common Article 3 because it appears in all four Conventions). Because the Geneva Conventions form part of the law of war, the Court held, the president must adhere to them as a condition of his authority to create military commissions that Congress conferred in the UCMJ.
To reach this conclusion, the Court had to clear yet another procedural hurdle. In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court rejected a challenge by a group of German nationals convicted by a military tribunal. Like Hamdan, the Germans argued that the tribunal’s procedures, which deviated from court-martial rules, violated the Geneva Conventions. As it rejected this argument on the merits, the EisentragerCourt noted that the rights of alien enemies under the Conventions are protected by the action of their governments, not by claims made by detainees themselves. Justice Stevens dismissed Eisentrager by declaring that the decision did “not control this case.” The Court held that regardless of whether Hamdan could invoke the Conventions in court, the president remained bound by them as a condition of his authority, conveyed by the UCMJ, to create military commissions.
Freed from the Eisentrager decision, the Court concluded that Article 3, which applies to each party to a “conflict, not of an international character” that occurs in a signatory country, binds the United States in its conflict with al-Qaeda. Justice Stevens observed that Afghanistan, where Hamdan was captured, is a signatory of the Conventions. The Court then interpreted the phrase “conflict not of an international character,” to mean, literally, a conflict not between nations and al-Qaeda, of course, is not a nation.
The protections conferred by Article 3 fall far short of the full spectrum of rights conferred on detainees in conflicts between signatories to the Geneva Conventions, but the Court held that Hamdan’s commission ran afoul of even these bare safeguards. Principally, the Court held, the commission violated Article 3’s requirement that detainees must be tried by “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” A military commission, the majority concluded, qualifies as a “regularly constituted court” only if “some practical need explains deviations from court-martial practice.” Echoing his previous analysis of the UCMJ’s uniformity principle, Justice Stevens wrote that the president’s failure to identify a practical need to deviate from court-martial procedures rendered Hamdan’s commission illegal under Article 3.
Justice Stevens’s opinion, without support from Justice Kennedy, won plurality support for two additional positions. First, he concluded that the charge against Hamdan, conspiracy to commit war crimes, was not itself a war crime subject to trial by a military commission. Second, he interpreted Article 3 to require that an accused must be permitted to attend his trial and to be privy to the evidence against him.
In a lengthy concurrence, joined by Justices Souter, Ginsburg, and Breyer, Justice Kennedy explained that he declined to join the plurality on these points because he considered them unnecessary to dispose of the case. He expressed basic fairness concerns, however, about the commission’s structure, organization, and procedures, especially their lack of insulation from command influence. Justice Kennedy also emphasized that “domestic statutes control this case”a point echoed in a one-page concurrence by Justice Breyer. Both concurrences noted that Congress could change the UCMJ to bring Hamdan’s commission within the rule of law and the Constitution.
In a characteristically spirited dissent, joined by Justices Thomas and Alito, Justice Scalia castigated the Court’s decision to exercise jurisdiction over Hamdan’s habeas petition. Justice Scalia argued that the plain language of the DTA”no court, justice, or judge shall have jurisdiction” deprived the Court of jurisdiction over all habeas applications filed by Guantanamo Bay aliens, even if they were pending when the DTA was enacted.
The majority’s attempt to avoid the DTA was unconvincing, he charged, because the Court could not overcome the rule, stated most clearly in Bruner v. United States, 343 U.S. 112 (1952), that jurisdiction-stripping statute terminates jurisdiction in pending cases.
Justice Thomas’s dissent, joined by Justice Scalia and joined in large part by Justice Alito, presented a view of vast presidential power in foreign affairs and national security, and it sharply criticized the majority for substituting its will for the president’s in those areas. Following the traditional three-part scheme to evaluate executive authority first articulated by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), Justice Thomas viewed the military commission as an exercise of the president’s powers as commander-in-chief during wartime, with the complete support of Congress conveyed by the AUMF. Under those conditions, Justice Thomas wrote, the president was entitled to “a heavy measure of deference” rather than the “second-guessing” that occupied the majority. Justice Thomas read parts of his dissent from the bench for the first time in his 15-year career on the Court, and he predicted that the Court’s decision would “sorely hamper the president’s ability to confront and defeat a new and deadly enemy.” Justice Alito also dissented, joined by Justices Scalia and Thomas, on grounds that Hamdan’s commission qualified as a “regularly constituted court” under Article 3 of the Geneva Conventions.
Other provisions of the Conventions expressly require uniformity between a country’s court-martial tribunals and military commissions organized to try prisoners of war, Justice Alito observed, but Article 3 does not contain similar language. Justice Alito also argued that mere deviation between courts-martial and military commissions did not automatically render a military commission “illegal.” The full separation-of-powers implications of Hamdan and its impact on an array of questions surrounding the war on terrorism remain to be seen. Some short-term results, however, are evident.
For Hamdan, the Court’s decision to strike down the commission resulted, perversely, in his continued detention without a hearing. Nothing in the decision, Justice Stevens expressly noted, touched on whether Hamdan could be detained for the duration of hostilities. Hamdan remains at Guantanamo Bay while Congress and the president fashion an appropriate tribunal to try him.
For Congress, the decision (and the concurrences by Justices Kennedy and Breyer) essentially invited the institution to become a more robust player in the war on terrorism. At the very least, the Court gave Congress the opportunity to authorize, by new legislation or by amending the UCMJ, the president’s use of military commissions. The Court gave little guidance, however, about the form of such legislation.
For the president, the decision shows that a majority of the Court does not share the Bush Administration’s repeated assertions of sweeping executive power, at least in areas where Congress has legislated. Opponents of the Administration’s use of wiretaps without a permit, despite provisions of the Foreign Intelligence Surveillance Act, will find encouragement in Hamdan.
The Court declined to decide several important issues presented, directly or indirectly, by Hamdan’s petition. As a result, some basic features of the relationship among the three branches of government in the war on terrorism remain undefined. The Court again made no determination about whether the United States is “at war” after Sept. 11, 2001, and therefore whether claims of presidential power deserve more deference.
Importantly, the Court also did not confront directly the scope of the president’s Article II power to convene a military commission, to detain individuals subject to trial under such a commission, or to conduct other aspects of the war on terrorism absent congressional authority.
Similarly, the precise contours of detainees’ rights remain ambiguous after Hamdan. The fate of habeas cases pending in federal courts at the time of the DTA’s enactment remains uncertain. It is unclear whether detainees can seek judicial enforcement of the Geneva Conventions to challenge future military commissions. The Court did not indicate what a “regularly constituted court” would look like under Common Article 3, or how, short of the full protections of courts-martial, a commission’s procedures could withstand the Court’s review. The Court also reached no decision on the types of formal charges that are subject to trial by military commission.
In light of these unanswered questions, Hamdan’s uncertain fate, and a relatively measured majority opinion strong on statutory analysis but weak on sweeping constitutional pronouncements, some commentators have questioned the decision’s significance. This view is mistaken. The basic lesson of Hamdan may have been obvious at other times, but in the present climate, its importance is unmistakable.
The fundamental point appears in the majority opinion’s final substantive paragraph. In reaching its decision, Justice Stevens wrote, the Court assumed that the charges against Hamdan were true and that Hamdan was a dangerous man who intended to kill innocent civilians. But the real danger presented by Hamdan and those like him, however serious, did not permit the president to ignore constitutional checks to his authority. “[I]n undertaking to try Hamdan and subject him to criminal punishment,” the Court concluded, “the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”