Geneva Conventions

• Author: International Law Group
• Pages: 124-127

Page 124

On June 29, the U.S. Supreme Court struck down military commissions established by the Executive Branch to try Guantanamo detainees. The majority opinions cited three grounds for fi nding these military commissions to be illegal: (1) the Executive Branch does not possesses the requisite authority to create such military commissions; (2) the procedures of the military commissions violate federal statutes such as the Uniform Code of Military Justice (UCMJ); and (3) the commissions are inconsistent with international treaties, such as Common Article 3 of the Geneva Conventions of 1949, which function as judicially enforceable federal law.

After the World Trade Center attacks, the U.S. sent armed forces to Afghanistan to deal with the Taliban, a radical Islamic organization. In late 2001, militia forces captured Salim Ahmed Hamdan (Petitioner); he is a Yemeni national who used to work for al Qaeda leader, Osama bin Laden.

The following year, the U.S. transported Petitioner to Guantanamo Bay, Cuba. President Bush later scheduled Petitioner for trial by military commission for various crimes including conspiracy "to commit ... offenses triable by military commission." Petitioner also stands accused of overt acts in furtherance of a conspiracy to commit terrorism: delivering weapons and ammunition to al Qaeda, acquiring trucks for use by Osama bin Laden's bodyguards, providing security services to bin Laden, and receiving weapons training at a terrorist camp.

In setting up these military commissions, the President relied on Congress' 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 (AUMF), Authorization for Use of Military Force, September 18, 2001, Public Law 107-40 [S. J. RES. 23] 107th CONGRESS.

Petitioner fi led habeas corpus and mandamus petitions challenging the validity of his military commission. He urged that the commission lacked authority (1) because conspiracy is not a crime recognized by the laws of war; and (2) because the procedures to be employed by the commission, such as restricting the Petitioner's access to evidence used against him, violated recognized norms of international and military law.

The U.S. District Court for the District of Columbia granted the requested relief and stayed the proceedings of the military commission. It held that Petitioner's commission would function "in violation of both the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 801 et seq., and Common Article 3 of the Th ird Geneva Convention because it had the power to convict based on evidence the accused would never see or hear." [2762]

Page 125

The U.S. Court of Appeals for the District of Columbia Circuit reversed, however, holding that the...