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.
Questions as Framed for the Court by the Parties
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. The September 11th attacks occurred on Tuesday, September 11, 2001, when hijackers crashed two commercial airliners into the World Trade Center in Manhattan, New York City, and one airliner into the Pentagon building in Washington, D.C. See Id. The resulting 9/11 Commission Report attributed the attacks to al Qaeda, an Islamic fundamentalist group led by Osama bin Laden.
In response to the September 11th attacks, Congress immediately enacted a resolution expressing its support of the President’s use of “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.” Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001). On November 13, 2001, President George W. Bush issued an order authorizing the establishment of military commissions to hear war crimes charges brought against those captured in connection with the war against al Qaeda. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833, 57,834 (Nov. 13, 2001).
At the center of the current legal maelstrom is Salim Ahmed Hamdan, whom the government alleges served as Osama bin Laden’s personal driver and bodyguard in Afghanistan between 1996 and 2001, delivered weapons to al Qaeda members, and trained at the al Qaeda-sponsored al Farouq camp. See Hamdan v. Rumsfeld, 415 F.3d 33, 35–36 (2005). In November 2001, Afghani militia forces captured Hamdan in Afghanistan and turned him over to the American military. See Id. at 35. The military transported Hamdan to the Guantánamo Bay Naval Base in Cuba and placed him in a general detention facility known as Camp Delta. See Id.
On July 3, 2003, the President determined “that there is reason to believe that [Hamdan] was a member of al Qaeda or was otherwise involved in terrorism directed against the United States.” See Id. This finding brought Hamdan within the compass of the presidential military order of November 13, 2001. See Id. Accordingly, the government designated Hamdan for trial before a military commission. See Id. In December 2003, the military removed Hamdan from the general population at the Guantánamo Bay facility and placed him in solitary confinement in Camp Echo. See Id. In April 2004, Hamdan filed this petition for habeas corpus. See Id.
While his habeas petition was pending before the U.S. District Court for the District of Columbia, the government formally charged Hamdan with conspiracy to commit attacks on civilians and civilian objects, murder, destruction of property by an unprivileged belligerent, and terrorism. See Id.
In a separate and independent case in 2004, the Supreme Court decided that a U.S. citizen detainee who sought to challenge his classification as an enemy combatant was entitled by due process to a meaningful opportunity to contest the factual basis for his detention before a neutral decision-maker. See Hamdi v. Rumsfeld, 542 U.S. 507, 537 (2004). In response to the Hamdi ruling, Hamdan received a formal hearing before a Combatant Status Review Tribunal. See Hamdan v. Rumsfeld, 415 F.3d at 36. The Tribunal affirmed his status as an enemy combatant, “either a member of or affiliated with Al Qaeda,” for whom continued detention was required. See Id.
On November 8, 2004, the U.S. District Court for the District of Columbia granted in part Hamdan’s habeas petition. See Id. Among other things, the district court held that military commissions were not competent to try Hamdan unless a competent tribunal determined that he was not a prisoner of war under the 1949 Geneva Convention. Thus, the court enjoined Secretary of Defense Donald Rumsfeld from conducting any further military commission proceedings against Hamdan. See Id.
The government appealed the district court’s decision. See Id. The U.S. Court of Appeals for the District of Columbia Circuit reversed the district court and held that Congress authorized the military commission that was to try Hamdan. See Id. at 38. Additionally, the appeals court found that because Hamdan was a member of al Qaeda, the Geneva Conventions did not apply to him and he could not assert the unlawfulness of the military commissions on that basis. See Id. at 40. Hamdan then petitioned for writ of certiorari and the Supreme Court granted his petition on November 7, 2005. See Supreme Court Docket for Hamdan v. Rumsfeld. Chief Justice John Roberts, one of the three D.C. Circuit judges who decided the case, has recused himself from this decision. See Id.
Hamdan v. Rumsfeld is one of several cases to reach the Supreme Court challenging the Bush administration’s conduct in the “war on terror”. See e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 537 (2004); Rasul v. Bush, 542 U.S. 466 (2004); Rumsfeld v. Padilla, 542 U.S. 426 (2004). In deciding this case, the Supreme Court will define “the relationship between the President’s constitutional powers as Commander-in-Chief and the existing constitutional, statutory, and international rules and tribunals that govern the conduct of war.” Statement of 450 Professors of Law on Hamdan v. Rumsfeld.
Hamdan, an alleged former aide to terrorist leader Osama bin Laden,challenges the President’s use of special military commissions to try foreign terror suspects. See Brief for Petitioner at 9. Commission trials are an alternative forum to civilian courts. See Id. at 30. According to Hamdan, commission trials differ from regular courts’ established rules and routines; for instance, a commission trial would exclude him from portions of his own trial, permit the admission of unsworn statements in lieu of testimony, and vest the Secretary of Defense with the judicial power to rule in matters that terminate the proceedings. See Petition for Writ of Certiorari at 1, 30.
The government argues that the President has the constitutional, statutory, and congressional authority to convene military commissions for persons who the military labels as enemy combatants in the “war on terror.” See Brief for the Respondents in Opposition at 17. If the Court holds for the government, it will allow the commission proceedings against Hamdan to resume. Such a decision would indicate that commission trials are acceptable tools for preventing future acts of international terrorism against the United States by al Qaeda and its supporters, see Brief for Respondents at 11. But arguably, a decision for the government would not only expand the jurisdiction of military tribunals to displace traditional tribunals in some circumstances, it would also expand the powers of the President. See Brief for Petitioner at 9–11, 30. Specifically, a decision for the government would vest the executive branch with unilateral authority to decide an enemy combatant’s classification, treatment, judgment, and sentencing, all the while circumventing federal courts. See Petition for Writ of Certiorari at 7. The ACLU, for example, argues that that the President believes that he can do whatever he chooses as long as he describes it as part of the “war on terror”. See Amicus Brief of the ACLU in Support of Petitionerat 3. This is particularly troubling given that the “war on terror” is potentially unlimited in scope and duration, such that there exist hundreds of terrorism cases awaiting trial by commission. See Brief for Petitioner at 31; Brief of the Cato Institute as Amicus Curiae in Support of Petitioner at 4. A decision for the government, therefore, could deny some of the most rudimentary requirements of a fair trial not only to Hamdan, see Amicus Brief of the ACLU in Support of Petitioner at 5, but also to other alien detainees at Guantánamo Bay and any other criminal who the President labels as an enemy combatant.
If the Court finds that the President does not have the broad power to create or use military commissions to try enemy combatants in the “war on terror,” then Hamdan will not be subject to commission trial. But military commissions have historically served an important (albeit limited) function during times of war, see Brief for Petitioner at 9. A decision favoring Hamdan may allow federal courts to interfere with important, ongoing military commission proceedings. Essentially, such a decision would allow federal courts to second-guess the President’s and the military’s conduct and the “exercise of the President’s core Commander-in-Chief and foreign affairs authority.” See Brief for the Respondents in Opposition at 13, 17. For the families of the September 11th terrorist attacks, the more significant consequence of a ruling for Hamdan is that such a decision may forestall the punishment of the conspirators involved with the egregious violence committed against the United States. See Brief for Respondents at 21. Similarly, the soldiers who are actively stationed in Iraq and their families may interpret such a decision as hindering the government’s ability to hold enemy combatants accountable for their war crimes “in a manner that promotes, rather than compromises other efforts to prosecute the war and bring the conflict to an end.” Brief for Respondents at 25. Finally, for the nation as a whole, the judicial regime sought by Hamdan may hamper the executive’s ability to wage war successfully against al Qaeda or other terrorist organizations and to protect the nation from future attacks. See Amicus Curiae Brief of Retired Generals and Admirals in Support of Petitioner at 25, 29.
The 1949 Geneva Convention is central to the Court’s decision in this case. If the Court decides that the Convention’s Common Article 3 requirement of trial and sentencing by a “regularly constituted court” is indeed applicable to the “war on terror,” then the Article would protect Hamdan and other similarly situated detainees from inhumane treatment. See Amicus Curiae Brief of 422 Current and Former Members of the United Kingdom and European Parliaments in Support of Petitioner at 16. Furthermore, consistent application of the Geneva Convention rules protects the lives of American soldiers because denying the Geneva protections to Hamdan and others weakens the United States’ ability to demand that other nations apply the Convention to Americans captured during armed conflicts abroad. See Amicus Curiae Brief of Retired Generals and Admirals in Support of Petitioner at 8. The argument for reciprocity, however, is weakened in the context of war with terrorists who regularly violate such rules. Regardless of which way the Court interprets the 1949 Geneva Convention, any determination about the Convention would expand the Court’s role in the realm of interpreting U.S. treaty obligations, a province generally understood to be solely within the domain of the executive branch. See Brief for Respondents at 38. Finally, if the Court decides that Article 3 is indeed applicable to the “war on terror,” this would indicate that countries that have not ratified a specific treaty may still free ride on its protections, which may have the adverse result of deterring states from joining—and thus subjecting themselves to the burdens of—international treaties in the first place. See Id. at 39.
For the United States, this case is a high-stakes test of the President’s wartime powers because the Court will define the perimeter of the “war on terror” and what tools are available to the President in responding to attacks on national security such as those of September 11th. See Amicus Curiae Brief of Retired Generals and Admirals in Support of Petitioner at 12–13 (“The power to ‘wage war successfully’ necessarily includes determining how to manage captured enemy combatants—lawful or otherwise.”). For the rest of the world, this case will be emblematic of how the United States complies with the standards set by international humanitarian law and the human rights laws it so strongly advocates. See Amicus Curiae Brief of 304 United Kingdom and European Parliamentarians in Support of Petitioner at 6; Brief of Amici Curiae Madeleine K. Albright and 21 Former Senior U.S. Diplomats in Support of Petitioner Salim Ahmed Hamdan at 20 (“Promoting the rule of law has long been an important priority of U.S. foreign policy. Yet convening military commissions that lack judicial independence and claiming unfettered authority to unilaterally establish and amend rules in violation of fundamental fair trial guarantees not only undermines the rule of law, but also diminishes the moral authority the United States regularly invokes to promote the rule of law abroad.”)
Seemingly every day, the “war on terror” generates controversial issues that require a delicate balance of national security, civil liberties, separation of powers, and international treaty obligations. The Supreme Court’s decision in this case will affect how we view the powers of the President and of the federal courts, the rights of non-citizens in US mili tary cus tody, and the manner in which the United States may conduct itself and expect other nations to conduct themselves vis-à-vis “enemy combatants” in an undeclared war.Written by: