In 5 to 3 vote, U.S. Supreme Court holds that military commissions set up by Executive Branch to try Guantanamo Bay detainees violate not only U.S. law but also 1949 Geneva Conventions
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 finding 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 filed 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. Section 801 et seq., and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear." [2762]
The U.S. Court of Appeals for the District of Columbia Circuit reversed, however, holding that the Geneva Conventions are not judicially enforceable and that the military commission violated no U.S. military laws. The U.S. Supreme Court granted certiorari on these issues. A majority reverses the judgment of the D.C. Circuit Court and remands the case.
Writing for the majority, Justice Stevens denies the Government's motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA). Although giving the D.C. Circuit Court exclusive jurisdiction to hear appeals from judgments by military commissions, the DTA does not deny the Supreme Court such jurisdiction, thus defeating the Government's motion. Congress' rejection of the very language that would have achieved the result the Government urges weighs heavily against its interpretation.
The military commission, a tribunal neither mentioned in the Constitution nor created by statute, was born of military necessity often on or near the battlefield. The majority decides "that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the 1949 Geneva Conventions. Four of us also conclude, see Part V, that the offense with which Hamdan has been charged is not an "offens[e] that by ... the law of war may be tried by military commissions.'" [2759-60].
The majority also rejects the government's arguments based on Schlesinger v. Councilman, 420 U.S. 738 (1975), a case in which federal courts, based on comity, had abstained from intervening in a pending courts-martial case against a U.S. serviceman. But federal court abstention here, in the case of a foreign national, would in no way advance the dual goals of encouraging military discipline and ensuring the efficient operation of the U.S. Armed Forces. Thus, Councilman is inapplicable.
Instead, Justice Stevens points to Ex parte Quirin, 317 U.S. 1, 19 (1942) as the relevant precedent. There the Court, far from abstaining pending the conclusion of ongoing military proceedings against Nazi saboteurs, expedited its docket "[i]n view of the public importance of the questions raised by [the cases] and of the duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty, and because in our opinion the public interest required that we consider and decide those questions without any avoidable delay." [2772].
The Court takes particular exception to the rules laid down in Commission Order No. 1. One glaring feature is that they allow for the exclusion of defendant and his hired counsel during presentation of highly sensitive information.
"Another striking feature of the rules governing Hamdan's commission is that they permit the admission of any evidence that, in the opinion of the presiding officer, "would have probative value to a reasonable person.' Section 6(D)(1). Under this test, not only is testimonial hearsay and evidence obtained through coercion fully admissible, but neither live testimony nor witnesses' written statements need be sworn. Moreover, the accused and his civilian counsel may be denied access to evidence in the form of "protected information' ... so long as the presiding officer concludes that the evidence is "probative' under Section 6(D)(1) and that its admission without the accused's knowledge would not "result in the denial of a full and fair trial.'" Section 6(D)(5)(b). [2786-87].
The majority of Justices also holds that this Military Commission violates the Geneva Conventions The Government argued that Petitioner is not entitled to protection under the Geneva Conventions because al Qaeda is not a party to them. The majority, however, points to Common Article 3, which provides certain limited protections even to non-parties.
It provides in part that " [I]n 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 placed hors de combat by detention,' including a prohibition on "the passing of sentences without previous judgment by a regularly constituted court affording all the judicial guarantees recognized as indispensable by civilized people.'" [2795].
The Government next contended that Common Article 3 does not apply here because the conflict with al Qaeda, being "international in scope," does not qualify as a "conflict not of an international character." However, this logic fails because Common Article 2 provides that the Conventions apply to all armed conflicts arising between two parties to the Conventions.
Furthermore, a party has to accept the norms of the Conventions when in conflict with a non-party, so long as the non-party agrees to abide by the Conventions. Thus, as noted above, Common Article 3 requires Petitioner to be tried by a ""regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.' 6 U.S.T., at 3320 (Art. 3, ¶1(d))." [2796].
Justice Stevens continues in a plurality opinion, from which Justice Kennedy abstains, but which Justices Souter, Justice Ginsburg, and Justice Breyer join.
Justice Stevens concludes that, to be triable by military commission, an offense must meet four conditions: (1) the offense must have been committed within the theater of war; (2) "the offense charged "must have been committed within the period of the war'; (3) a military commission not established pursuant to martial law or an occupation may try only "[i]ndividuals of the enemy's army who have been guilty of illegitimate warfare or other offences in violation of the laws of war' and members of one's own army "who, in time of war, become chargeable with crimes or offences not cognizable, or triable, by the criminal courts or under the Articles of war' (4) a law-of-war commission has jurisdiction to try only two kinds of offenses: "Violations of the laws and usages of war cognizable by military tribunals only,' and "[b]reaches of military orders or regulations for which offenders are not legally triable by court-martial under the Articles of war.'" [2777].
More importantly, Justice Stevens writes that, not being an offense internationally recognized by the law of war, conspiracy is not triable by a military commission. "The crime of "conspiracy' has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions -- the major treaties on the law of war. ... [U]nder the common law governing military commissions, it is not enough to intend to violate the law of war and commit overt acts in furtherance of that intention unless the overt acts either are themselves offenses against the law of war or constitute steps sufficiently substantial to qualify as an attempt." [2780-81].
In addition, other international sources confirm that conspiracy is not a recognized breach of the law of war. For instance, "[t]he International Military Tribunal at Nuremberg, over the prosecution's objections, pointedly refused to recognize as a violation of the law of war conspiracy to commit war crimes, [Cite] and convicted only Hitler's most senior associates of conspiracy to wage aggressive war [Cite]."
"As one prominent figure from the Nuremberg trials has explained, members of the Tribunal objected to recognition of conspiracy as a violation of the law of war on the ground that "[t]he Anglo-American concept of conspiracy was not part of European legal systems and arguably not an element of the internationally recognized laws of war.' T. Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir 36 (1992); see also id., at 550 (observing that Francis Biddle, who as Attorney General prosecuted the defendants in Quirin, thought the French judge had made a " persuasive argument that conspiracy in the truest sense is not known to international law')."[2784-85] Because the conspiracy charges fail to support the commission's jurisdiction, the commission has no power to try Petitioner.
Justice Stevens further notes that "[t]he 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 the four Geneva Conventions signed in 1949. See Yamashita, 327 U.S., at 20-21. The procedures that the Government has decreed will govern Hamdan's trial by commission violate these laws." [2786]
The Geneva Conventions do not elaborate on the phrase "all the guarantees ... recognized as indispensable by civilized peoples" in Common Article 3. It must be understood, however, to include at least the barest of the trial protections recognized by customary international law. The procedures adopted to try Petitioner stray from those governing courts-martial in ways not justified by practical necessity.
Moreover, various provisions of Commission Order No. 1 dispense with the principles, which are indisputably part of customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be made aware of the evidence against him.
In a concurring opinion, which Justices Kennedy, Souter, and Ginsburg join, Justice Breyer would hold that military commissions, such as the one in question, are not totally inconceivable. The President, however, has to obtain congressional authorization before proceeding with such a commission, especially in cases, such as here, where no emergency precludes congressional consultation.
Justice Kennedy, also in a concurring opinion joined by Justices Souter and Ginsburg, believes that much of Justice Stevens' lengthy plurality opinion was not necessary to the decision of this case. It would have been enough to point out that the President has overstepped the limits set by Congress on his authority in setting up military tribunals.
"In light of the conclusion that the military commissions at issue are unauthorized, Congress may choose to provide further guidance in this area. Congress, not the Court, is the branch in the better position to undertake the "sensitive task of establishing a principle not inconsistent with the national interest or international justice.' Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964)." [2809]
Justices Scalia, Alito and Thomas each filed detailed dissenting opinions.
Citation: Hamdan v. Rumsfeld, 126 S. Ct. 2749, 74 U.S.L.W. 4579 ( 2006).
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