The U.S. Supreme Court in a 5-3 decision in Hamdan v. Rumsfeld has halted the proceedings of U.S. military commissions formed to prosecute Guantanamo Bay (GTMO) detainees for alleged violations of the laws of war.  A 185-page patchwork of majority, plurality, concurring, and dissenting opinions was handed down June 29, 2006.  Click here for the entire set of opinions in PDF format.  President George W. Bush had authorized the secretary of defense to create military commissions in a Nov. 13, 2001, military order relating to post-Sept. 11, 2001, counterterrorism detentions.  Hamdan was filed as a habeas corpus action to require the government to justify GTMO detentions, while also challenging the nature of the military commissions.  The lead plaintiff had been Osama bin Laden’s driver and bodyguard, captured by third parties during hostilities in Afghanistan and turned over to American forces.  After lengthy delays, military commission charges had been brought against bin Laden’s driver for conspiracy.

Given its refusal to accept congressional action in the form of the Graham-Levin amendment, part of the Detainee Treatment Act (DTA), as dispositive  in the matter, and given the fact that Congress can override international law including treaties by statute, the main impact of the decision is to (1) stop the military commission proceedings, (2) momentarily prevent GTMO detainees from being put on trial unless it is by court-martial or in a civilian court, (3) force DOD to revise military commission procedures with no guarantee that any changes would suffice absent congressional action, (4) effectively send the matter back to Congress several months before congressional election, and (5) even if Congress addresses military commissions further and does not substantially alter the commission framework and procedures, there is not necessarily assurance that a return to the Supreme Court would not raise additional questions on constitutional grounds.

It is not clear whether, if forced to, the Court could find additional constitutional reasons upon which to ground aspects of its holding, but it did raise concerns over whether the military commissions were duly authorized, and over secret evidence and exclusion of defendants from proceedings, which could raise constitutional issues.

Voting Breakdown by Justices

Justice John Paul Stevens wrote the opinion for the majority, joined by Justices David Souter, Ruth Baeder Ginsburg, Stephen Breyer, and Anthony Kennedy.  One portion of Stevens’ opinion, arguing that conspiracy was not a charge recognized under international law, and another portion relating to the exclusion of an accused from proceedings and whether indirectly to apply Protocol I to the Geneva Conventions even though the United States never signed it, was joined only by Justices Souter, Ginsburg and Breyer.  An additional concurrence was authored by Justice Kennedy, joined by Justices Souter, Ginsburg and Breyer.  There were dissenting opinions by Justices Scalia, Thomas and Alito, with each also joining the dissenting opinions of the others.  Chief Justice John Roberts, who previously had sat on a panel of the U.S. Court of Appeals for the D.C. Circuit upholding the military commissions, recused himself from involvement with this later review by the Supreme Court.

Holding that the GTMO Military Commissions are not Specifically Authorized by the UCMJ, AUMF, or DTA

In arguably the least convincing line of reasoning offered by the Justices, in Part IV of the majority opinion the Court held that, in the context of the Uniform Code of Military Justice (UCMJ) already having preserved jurisdiction for military commissions and congressional action acknowledging the existence of the GMTO military commissions, referencing the military commissions rendering decisions Congress regarded as judgments, and providing for those judgments to be subjected to civilian appellate review, Congress nevertheless had left the military commissions unauthorized.

It appears that Hamdan regards references to military commissions already present in U.S. statutes, and past court precedent and past practice, as indicating a kind of latent capacity for a president to create military commissions, either requiring more explicit congressional authorization or a civilian judicial inquiry into whether the existence and envisioned procedures of a particular military commission comply with the laws of war.

Surveying the history of military commissions, and citing In re Yamashita, 327 U.S. 1 (1946), the Court held that the Constitution did not authorize military commissions in its provisions on courts, and that constitutional authority for military commissions could only flow from congressional and presidential war powers provisions.  While noting the Supreme Court’s suggestion in Ex parte Milligan, 71 U.S. 2 (1866), that the president might have the authority to institute military tribunals in cases of controlling necessity, the Court in Hamdan stated that such a holding had never been made definitively by the Court.  Instead the court followed, in its view, Ex parte Quirin, 317 U.S. 1 (1942), wherein the Court conducted an inquiry into whether military commissions had been authorized and whether the commissions were in compliance with the law of war.

UCMJ Article 21 does lend some guidance on this topic:

ART. 21. JURISDICTION OF COURTS-MARTIAL NOT EXCLUSIVE

The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals. (emphasis added)

Available at:  http://www.au.af.mil/au/awc/awcgate/ucmj.htm#821.%
20ART.%2021.%20JURISDICTION%
20OF%20COURTS-MARTIAL%
20NOT%20EXCLUSIVE

But, referring to the post-Sept. 11 Authorization for Use of Military Force (AUMF), the UCMJ, and the Graham-Levin amendment (part of the DTA), the Court held:

Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the “Constitution and laws,” including the law of war. Absent a more specific congressional authorization, the task of this Court is, as it was in Quirin, to decide whether Hamdan’s military commission is so justified.  It is to that inquiry we now turn [to see whether we consider the military commissions justified by the laws of war]. (Hamdan, slip op. at 38.)

The Court quoted the AUMF earlier in its opinion:

After the attacks of Sept. 11, 2001, Congress adopted a Joint Resolution authorizing 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 … in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” (Authorization for Use of Military Force, 115 Stat. 224, note following 50 U. S. C. §1541 [2000 ed., Supp. III], Hamdan, slip op. at 3.) 

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), a plurality of the Court held that the taking of detainees was incidental to military operations and therefore also authorized by the AUMF.  But the Court held in Hamdan:

… while we assume that the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507 (2004) (plurality opinion), and that those powers include the authority to convene military commissions in appropriate circumstances, see id., at 518; Quirin, 317 U. S., at 28–29; see also Yamashita, 327 U. S., at 11, there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ. (Hamdan, slip op. at 29-30.)

Turning next to the Graham-Levin amendment, forming part of the Detainee Treatment Act (DTA) passed as part of the fiscal year 2006 Defense Authorization bill, the Court held that it was not enough that the DTA recognized the existence of the GTMO military commissions by referencing military orders governing them and creating judicial review of what the DTA termed “final decisions.” 

The DTA grants civilian appellate court review, by the D.C. Circuit, of final decisions by the military commissions, including, “to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.”  The Court regarded this provision, not as folding the military commissions into the tapestry of the U.S. judicial system, but as reserving judgment on whether the Constitution and laws of the United States were applicable and whether the military commissions were compliant with them.  It held that such a reading meant Congress had not authorized the commissions.

As quoted above, the Court, having established in its judgment that “the UCMJ, the AUMF, and the DTA at most acknowledged a general Presidential authority to convene military commissions in circumstances where justified under the ‘Constitution and laws’, including the law of war,” held “[a]bsent a more specific congressional authorization, the task of this Court is, as it was in Quirin, to decide whether Hamdan’s military commission is so justified.  It is to that inquiry we now turn.”

The Court therefore held that the military commissions were not explicitly authorized by those three congressional actions, and so the Court was going to apply its own view of the laws of war to see whether its views of the laws of war permitted the president to convene the military commissions.

Having said “[i]t is to that inquiry we now turn,” however, it bears noting that the next section of the opinion is not a majority opinion of the court, but a section approved by only four justices, a section arguing that international law does not recognize conspiracy, the charge against Hamdan, as a crime under international law, and that international law would frown upon secret evidence and excluding the accused and his civilian defense counsel from proceedings.

The majority opinion itself goes on to focus on what the Court deems the unlawful nature of the military commission framework and procedures as viewed under the UCMJ and Geneva Conventions.

UCMJ and Geneva Conventions

In Part VI of the majority opinion, as grounds for holding the military commissions unlawful, the Court looked to the UCMJ, the Geneva Convention Relative to the Protection of Prisoners of War of 1949 (GC-POW), and a requirement by the World War II-era case Ex Parte Quirin that military commissions comply with the laws of nations:

… the commission lacks power to proceed.  The UCMJ conditions the President’s use of military commissions on compliance not only with the American common law of war, but also with the rest of the UCMJ itself, insofar as applicable, and with the “rules and precepts of the law of nations,” Quirin, 317 U. S., at 28— including, inter alia, the four Geneva Conventions signed in 1949. See Yamashita, 327 U. S., at 20–21, 23–24. The procedures that the Government has decreed will govern Hamdan’s trial by commission violate these laws. (Hamdan v. Rumsfeld, No. 05-184, Slip. Op. at 49, U.S. June 29, 2006, http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf.)

UCMJ Article 36

The Court pointed to UCMJ Article 36 as requiring military commission rules and procedures to not be contrary to or inconsistent with the UCMJ, and to be as uniform as far as practicable with those governing other military tribunals such as courts-martial:

(a) The procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.

(b) All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress.”

(70A Stat. 50; UCMJ Article 36 (emphasis added), quoted in Hamdan v. Rumsfeld, slip op. at 57.)

The Court allowed that under Article 36 deference was owed to the president as to whether civilian court procedures would be practicable for military commissions, but that Article 36 required (1) that military commission procedures could not be contrary to or inconsistent with the UCMJ and (2) as far as practicable, procedures for military commissions must be uniform with those governing courts-martial and other military tribunals.  On the latter point, the Court observed that Article 36 language did not call for deference to the president on that point as to practicability of following court-martial procedures and held that “[n]othing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case.”

The Court held:

Since it is undisputed that Commission Order No. 1 deviates in many significant respects from [courts-martial] rules, it necessarily violates Article 36(b).

…

Article 36 … strikes a careful balance between uniform procedures and the need to accommodate exigencies that may sometimes arise in a theater of war.  That Article not having been complied with here, the rules specified for Hamdan’s trial are illegal.

(Hamdan, slip op. at 61, 62.)

The Court held that the Manual for Courts-Martial must govern military commissions unless there is some argument persuasive to the court that a particular requirement would not be practicable. 

The Court provided an overview of the military commission framework and procedures, set out in Commission Order No. 1 amended Aug. 31, 2005, which include variances from what would be the case in courts-martial.  The Court took pains to highlight areas of special concern to the Court.  In particular, it observed, the rules for courts-martial set out in the Manual for Courts Martial do not provide for excluding defendants or their civilian attorneys from proceedings, nor for secret evidence. 

Secret Evidence and Exclusion of Accused and Civilian Defense Counsel

One subject of concern was the authority of either the military commission’s presiding officer or the appointing authority to close hearings to the defendant and his civilian defense counsel, but not his military lawyer, on various grounds including when the information is classified or for other national security interests.  And even if the defendant’s military lawyer is present, under the military commission rules, as written, the military lawyer can still be forbidden from sharing what he learns with the defendant or his civilian defense counsel.

(Note that the presiding officer is a member of a particular military commission, the panel hearing a case, while the appointing authority is appointed by the secretary of defense to oversee the entire set of GTMO military commissions, at this time a retired U.S. Army general and former military attorney John D. Altenberg, Jr.)

In addition, under military commission rules, while evidence could be admitted if the presiding officer deems it of probative value, essentially if he deems it helpful for determining the outcome of the case, the evidence nevertheless may be kept secret from the accused and his civilian defense counsel on various grounds, including if it is classified or for other national security reasons.

Geneva Conventions

The Court also held that military commission procedures, as written, violate the Geneva Conventions.  The Court observed that, in contrast to the D.C. Circuit ruling that had held that the Geneva Conventions were not judicially enforceable, Hamdan himself was not entitled to their protections because he is an unlawful combatant, and that the time was not right to intervene in the case under the Councilman case, mentioned below (involving civilian courts refraining from intervening in military adjudication until there is a final result).

Geneva Conventions part of the law of war

Note that UMCJ Article 21 envisions military commissions, where authorized, to be limited to trying offenses defined by statute or the law of war.  Moreover, the military commission charges themselves cite the law of war as a basis for prosecution.

The Supreme Court side-stepped the question of whether an individual, as opposed to his nation’s government, could bring an action under the Geneva Conventions.  Instead the Court pointed out that military commission authority under the UCMJ subjected military commissions to the law of war, and that the Geneva Conventions were part of the law of war.  So the question became not one of standing to bring an action but the rule of decision governing which law was to be applied, and how it was to be interpreted, in reaching a judgment.  The Court held: “…regardless of the nature of the rights conferred on Hamdan, [the Geneva Conventions] are, as the Government does not dispute, part of the law of war...  And compliance with the law of war is the condition upon which the authority set forth in [UCMJ] Article 21 is granted.” (Hamdan, slip op. at 65)

Geneva Conventions apply to the conflict with al-Qaida in Afghanistan, at least with respect to common Article 3

The Court rejected the government’s longstanding argument that GTMO detainees seized in connection with the war on terror were not subject to the Geneva Conventions because al-Qaida is not a signatory to the Geneva Conventions (and in fact al-Qaida has demonstrated no interest in conforming with its requirements, let along other obligations of international law, but quite the opposite).  At the same time, however, the Court refrained from applying the Geneva Conventions in their entirety, focusing instead on common Article 3:

We need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories... Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by . . . detention.” … One such provision prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(Hamdan, slip op. at 66-67.)

“International conflict” meaning conflict between between nations, not “global conflict”

Note that the Court seized upon language applying common Article 3 to conflicts that were not international in nature and were within the territory of a party to the Geneva Conventions. 

Afghanistan is a party to the Geneva Convention, and the Afghan conflict has been taking place within Afghan territory.

Despite the global nature of the war on terror, and various international aspects of the Afghan conflict, the Court further held that the conflict in Afghanistan, apparently to the extent it involved al-Qaida, was not international.  The Court regarded the term “international” as meaning literally an inter-nation, such that an international conflict meant a clash between nations.

As seen above, common Article 3 requires war crimes trials to be carried out by a regularly constituted court providing minimal judicial guarantees required by civilized peoples, the Court looked to an International Committee of the Red Cross (ICRC) treatise as defining a regularly constituted court as being one “established and organized in accordance with the laws and procedures already in force in a country,” (Hamdan, slip op. at 69, quoting International Committee of the Red Cross, 1 Customary International Humanitarian Law 355, 2005).  Agreeing with the Kennedy concurrence, the Court held that the regularly constituted military courts in the U.S. military system were the courts-martial and that the government had not demonstrated a practical need to deviate from court-martial procedures.

Note that the Court is treating the ICRC as an authoritative commentator on the Geneva Conventions.

In sum, with respect to these points, the Court held:

(1) the conflict in Afghanistan is in the territory of a party to the Geneva Conventions;

(2) if a conflict was an entity that is not a nation-state, the conflict, however global, is not an international, or inter-nation, conflict and therefore is not a conflict of an international nature by the literal meaning of the word “international”;

(3) even if the rest of the Geneva Conventions do not apply, provisions of common Article 3 do, because they apply to conflicts not of an international nature within the territory of a party to the Geneva Conventions;

(4) those provisions include a prohibition on the imposition of a judicial sentence, i.e., punishment as a war criminal, unless there has been a judgment adjudicated by a “regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples”; and

(5) in this context the relevant regularly constituted court is the court-martial and the government has yet to provide a reason persuasive to the Court why the court-martial standards should be deviated from.

Some implications of applying common Article 3

In the process, the Supreme Court essentially has implied that Geneva Convention common Article 3 could apply to the war on terror with non-state actors anywhere on earth where territory belongs to a party to the Geneva Conventions.

Common Article 3 prohibits:

·        violence to life and person, in particular murder, mutilation, cruel treatment and torture;

·        hostage-taking;

·        outrages upon personal dignity, in particular humiliating and degrading treatment; and

·        the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

In addition:

·        the wounded and sick shall be collected and cared for;

·        an impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict; and

·        parties to the conflict should endeavour to bring into force, by means of special agreements, all or part of the other provisions of the Geneva Convention.

With respect to al-Qaida, of course, the latter point seems unlikely, given that violations of international law, such as deliberate attacks on civilians, are part of al-Qaida’s mission.

Interestingly, however, common Article 3 should provide a strengthened basis for prosecuting al-Qaida and other terrorists for war crimes.  For example, the hostage-taking and beheadings in Iraq clearly are in violation of these requirements.

Hearing the Appeal at This Time

In Section III, the Court rejected arguments that under Schlesinger v. Councilman, 420 U.S. 738 (1975), it should not intervene in the middle of proceedings of a military court.  The Court distinguished Councilman as relating to the need to not interfere with military order and discipline when a duly constituted court-martial was handling the case of a serviceman.  The Court pointed out that Hamdan was not a member of the U.S. military and that the GTMO military commissions were not part of the integrated system of military courts, including well-established appellate processes, established by Congress.

The Court also pointed out that in Quirin, a World War II case involving German saboteurs landing on U.S. territory tried before a military commission, the Supreme Court granted review even before there was a final judgment.

Section IV-B of the opinion, the court rejects arguments that it should have waited to intervene because the DTA provides for review of final decisions.  Among other things, the Court noted that the DTA does not provide an automatic review if a sentence is not death or at least 10 years in prison, such that under the DTA civilian court review is not envisioned as always being routinely forthcoming, even when a final decision were to be reached.

Hearing this Case at All: DTA Jurisdiction-Stripping

In section II of the majority opinion, the Court addressed arguments over whether the DTA stripped it of jurisdiction to hear the case because Hamdan’s action was a habeas corpus action and the DTA acted by statute to address such claims by GTMO detainees and effectively routed them towards tribunals other than the federal district courts.

Among other things the DTA states flat-out that no court or justice is to have jurisdiction over GTMO habeas corpus actions, and provided for the DTA to go into force with its enactment.

The Court nevertheless held that provisions referring to pending claims left out mention of habeas corpus actions, so that it could still hear a pending case involving habeas corpus, without even looking beyond the statute.

The Court buttressed its line of reasoning by references to legislative history, despite vigorous dispute over whether legislative history can even be taken into account when statutory language in unambiguous, as well as disputes over what the legislative history indicated or how much weight could be accorded to its various elements.

Conclusion

The bottom line result is a “mixed bag” that, if discerned fully, will neither entirelyplease nor displease civil rights advocates, the international community, Congress, and the Bush administration.  It asserts the applicability, in the context of military commissions, of the Uniform Code of Military Justice and the Geneva Convention Relative to the Protection of Prisoners of War of 1949, and holds that the military commissions violate both.  The opinion forces either Congress or DOD to tweak military commission procedures and probably forces Congress explicitly declare that it is authorizing the military commissions.

Arguably, the decision does not necessarily speak to GTMO detentions generally, secret detentions and interrogations elsewhere, rendition, the ability of the United States to hold detainees taken in the “war on terrorism” indefinitely until the end of hostilities, or the conduct or legality of tribunals addressing ongoing detentions, such as Combatant Status Review Tribunals (CSRT) or Administrative Review Boards (ARB).

The decision does nevertheless indicate that the Geneva Conventions apply to the post-Sept. 11 conflict in Afghanistan, at least with respect to common Article 3 requiring basic procedural rights for detainees in the context of military commissions; the application of common Article 3 puts a judicial “foot in the door” to say that, at least, part of the Geneva Conventions apply at GTMO.

In the process, should the application of the Geneva Conventions in the war on terror be broadened, that could invite speculation about whether the Bush administration, in the long run, and at least from a legal perspective, has encountered special difficulties occasioned by treating the post-Sept. 11 war on terrorism against al-Qaida as a conventional military conflict rather than an effort to round up international criminals more akin to spies and saboteurs.  In past conflicts, U.S. law had little difficulty treating spies and saboteurs differently than rank and file soldiers, while nevertheless requiring some legal standards to be applied.  In the context of the conflict with al-Qaida, the issue is potentially blurred by the fact that resorting to wholesale military conflict, including conventional battles, has made the Afghan conflict seem more like a regular war, and by attempts to classify an entire enemy as spies and saboteurs perhaps without wrestling fully with what that means. 

In any event, the synergy of the democratic system is now providing more extensive and robust involvement by all branches of government to address the question of how to bring the force of rule of law to bear on both the legal constraints framing U.S. governmental action, and efforts to prosecute terrorists for international crimes.