Salim Ahmed Hamdan, Petitioner v Donald H. Rumsfeld, Secretary of Defense 548 US 557 (2006).

• Author: Alderton, Matthew
• Position: Case Note

The 'War against Terrorism' has required various national courts to adjudicate upon cases which raise complex constitutional, security and human rights questions. In Salim Ahmed Hamdan, Petitioner v Donald H. Rumsfeld, Secretary of Defense, et al (1) the United States Supreme Court was required to adjudicate upon the legality of the military mission convened by the executive branch of government to try an alleged member of al Qaeda detained in Guantanamo Bay. The decision is of particular significance, given the detailed examination by the Court into the operation of the separation of powers doctrine, and the application of international law, during wartime. The Court held, by a majority of 5-3, (2) that the structure and procedures of the Commission violated the Uniform Code of Military Justice (3) and the Geneva Conventions. (4)

The petitioner, Salim Ahmed Hamdan, a Yemeni national, was one of the many individuals captured during the hostilities between the United States and the Taliban in Afghanistan, and transferred to an American prison in Guantanamo Bay. (5) On 3 July 2003, the President of the United States announced that Hamdan and five other detainees were subject to the Military Order of 13 November 2001 governing the 'Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism', and were thus eligible for trial by military commission. (6) Hamdan was subsequently charged in July 2004 with one count of 'conspiring' to commit offences triable by military commission, including attacking civilians and civilian objects, murder by an unprivileged belligerent, and terrorism, as well as four 'overt acts'. (7)

Prior to these charges Hamdan had filed petitions for writs of habeas corpus and mandamus, challenging his trial by military commission. (8) On 8 November 2004, the District Court of Columbia granted Hamdan's petition for habeas corpus and stayed the Commission's proceedings, holding that the US President's authority to establish military commissions extended only to 'offenders or offences triable by military [commission] under the law of war'. (9) As the Commission possessed the power to convict based on evidence the accused would never see or hear, it was therefore established in violation of both the UCMJ and Common Article 3 of the Third Geneva Convention. (10) On appeal, the decision was reversed by the Court of Appeals for the District of Columbia Circuit, with all three judges of the panel agreeing on the merits that the Geneva Conventions were not 'judicially enforceable', and two of the judges further finding that the Conventions did not in any event apply to Hamdan. (11) On 7 November 2005, the Supreme Court granted certiorari to decide whether the Commission had the authority to try Hamdan, and whether Hamdan could rely on the Geneva Conventions.

1. Jurisdiction of the Supreme Court

   While Hamdan's case was pending before the Supreme Court, Congress passed the Detainee Treatment Act of 2005, (12) which establishes the procedures for the status review of detainees held outside the United States. Of particular importance to Hamdan's case, 1005(1)(e)(1) of the DTA states that 'no court, justice, or judge shall have jurisdiction to hear or consider ... an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay'. (13) The US Government argued that [section]100591)(e)(1) had immediate effect, upon enactment, of repealing federal jurisdiction not just over detainee habeas actions yet to be filed, but also over any such actions pending in any federal court, and that as a result, the Supreme Court lacked the jurisdiction to consider Hamdan's appeal. (14)

   Hamdan objected to this interpretation on both statutory and constitutional grounds. (15) The Court, however, declined to examine the latter on the basis that ordinary statutory interpretation sufficed to dismiss the government's argument. The foundation of this decision lay in the Court's reading of [section]1005(h), the 'effective date' provision of [section]1005. This provision stated:

   (1) IN GENERAL.--This section shall take effect on the date of the enactment of this Act. (2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS.--Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act. (16) The Court noted that [section] 1005(h)(2) expressly refers to pending cases in respect of paragraphs (2) and (3) of subsection (e). (17) Therefore, the decision by Congress to omit a similar explicit reference to paragraph [section]1005(l)(e)(1) in [section] 1005(h), meant that [section]1005(l)(e)(l) could not be properly interpreted as a 'jurisdiction-stripping' clause. (18) In dissent, Justice Scalia labelled the conclusion of the Court 'patently erroneous', on the basis that the DTA unambiguously provided that, as of that date, 'no court, justice, or judge' shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. (19)

   The government had further argued in the alternative that even if the Court had statutory jurisdiction, it should defer the proceedings pending the finding outcome of Hamdan's hearing before the Commission. (20) The Court held, however, that neither of the two considerations of comity that would normally require a federal court to abstain in court-martial proceedings against armed service personnel could be said to apply to Hamdan. Firstly, Hamdan was not a member of the United States armed forces, so there was no issue of military discipline or efficiency. Secondly, the tribunal convened to try Hamdan was not part of the integrated system of military courts, which provides for substantial procedural protections and appellate review by independent civilian judges completely removed from military influence. (21) The Court then cited Ex parte Quirin (22) in support of the precedent that civilian courts have the power 'to entertain challenges that seek to interrupt the processes of military commissions'. (23) Finally, the Court held that both Hamdan and the government had a 'compelling interest' in knowing in advance whether the Commission possessed the authority to try Hamdan for the crimes allegedly committed. (24)

2. The Structure of the Commission

   The Court, having determined that it had jurisdiction, proceeded to consider Hamdan's appeal on the merits. In what can be considered an illustrative examination into the division of powers between the President and Congress in wartime, the Court noted that the military commission, as an institution, was created neither by the Constitution nor by statute, but was rather 'born of military necessity'. (25) However, military exigency alone did not justify the establishment of such tribunals. (26) The court referred to Ex parte Milligan, noting that:

   The power to make the necessary laws is in Congress; the power to execute in the President ... Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of controlling necessity. (27) The Court added that the question of whether or not the President possessed the authority to convene military commissions without the authority of Congress in cases of 'controlling necessity', was a question which had not been settled definitely, and need not be done so in the current proceedings. The reason for this was the Court's previous decision in Quirin, in which Article 15 of the Articles of War (the predecessor to Article 21 of the UCMJ) was held to represent Congressional authorisation for such commissions. (28) At the time of the proceedings, Article 21 of the UCMJ provided;

   The provisions of this code conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offences that by statute or by the law of war may be tried by such military commissions, provost courts, or other military tribunals. (29) The Court observed that the decision in Quirin did not mean, however, that such authorisation allowed the President a sweeping mandate 'to invoke military commissions when he deems them necessary'. (30) Rather, Congress had simply preserved the President's power under the Constitution and the laws of war, with the express condition that the President complies with the laws of war. (31) Citing the Steel Seizure Case, the Court emphasised that the President 'may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers'. (32) In the current proceedings, neither the Authorization for Use of Military Force ('AUMF') (33) nor the DTA had expanded the President's power to convene military commissions. As such, the three statutes passed by Congress, namely, the UCMJ, AUMF, and 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'. (34) In this sense, the reasoning of the Court reflects the institutionally-orientated, rather than rights-orientated approach it has historically taken in defining the limits of the President's wartime powers. (35).

   In dissent, Justice Thomas, joined by Justice Scalia, argued that nothing in the language of Article 21 indicated that it outlined the entire reach of Congressional authorisation for military commissions. Rather, the AUMF itself authorised the trial of unlawful combatants, derived from the authorisation given to the President to initiate war, and the 'employment of all necessary and proper agencies for its due prosecution' (36)...