Note: This article addresses the international humanitarian law, or law of war. For information on immigration and links to the 1951 Convention and 1967 Protocol Relating to the Status of Refugees, see the article about Immigration.
Does the President have the power to establish military commissions to try petitioner and others similarly situated for alleged war crimes in the “war on terror”? Does the 1949 Geneva Convention and its Common Article 3 requirement of sentencing by “regularly constituted courts” protect persons from such commissions?
Salim Ahmed Hamdan, alleged former aide to terrorist leader Osama bin Laden, challenges the legality of the military commission that seeks to establish its jurisdiction to try him as an alleged enemy combatant in connection with the September 11th attacks. The government responds that the President has the constitutional, congressional, and statutory authority to create military commissions and to use them in the ongoing conflict with al Qaeda. This case involves the critical question of allocation of power among Congress, the President, and the federal courts in the “war on terror.” It also presents issues arising under the 1949 Geneva Convention. In deciding this case, the Supreme Court will have to balance the interests of national security versus the preservation and promotion of individual human rights.
1. Whether the military commission established by the President to try petitioner and others similarly situated for alleged war crimes in the “war on terror” is duly authorized under Congress’s Authorization for the Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224; the Uniform Code of Military Justice (UCMJ); or the inherent powers of the President?
2. Whether petitioner and others similarly situated can obtain judicial enforcement from an Article III court of rights protected under the 1949 Geneva Convention in an action for a writ of habeas corpus challenging the legality of their detention by the Executive branch?
This case comes before the Supreme Court more than four years after the most violent act of terrorism ever committed on American soil. See Brief for the Respondents in Opposition at 2.
