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Hamdan v. Rumsfeld

Published online by Cambridge University Press:  27 February 2017

Daniel Bodansky  and
Peter J. Spiro
Peter J. Spiro
Affiliation:
James E. Beasley School of Law, Temple University
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Extract

Hamdan v. Rumsfeld. 126 S.Ct. 2749.

United States Supreme Court, June 29, 2006.

In Hamdan v. Rumsfeld, the U.S. Supreme Court found that the military commissions established by President George W. Bush were unauthorized by law and inconsistent with both the Uniform Code of Military Justice (UCMJ) and the 1949 Geneva Conventions. Rejecting jurisdictional challenges to its resolving the legality of the tribunals, the Court found the military commission proceedings against Hamdan to violate the “uniformity” requirement of the UCMJ, under which military commissions must be governed by the same standards as courtsmartial except where impracticable. The Court also found the tribunals to violate the Geneva Conventions as incorporated by Article 21 of the UCMJ, because the commissions did not qualify as “regularly constituted courts” as required under Common Article 3.

Type
International Decisions
Information
American Journal of International Law , Volume 100 , Issue 4 , October 2006 , pp. 888 - 895
Copyright
Copyright © American Society of International Law 2006

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References

1 Hamdan v. Rumsfeld, 126 S.Q. 2749 (2006).

2 Detention, Treatment, and Trial of Certain Non-citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001).

3 List of Charges at 2 (July 13, 2004), United States v. Hamdan (U.S. Mil. Comm’n), at <http://www.defenselink.mil/news/Jul2004/d200407l4hcc.pdf.

4 Hamdan v. Rumsfeld, 344 F.Supp.2d 152 (D.D.C. 2004).

5 Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005).

6 See, e.g., Linda, Greenhouse, Justices to Rule on a Challenge to U.S. Tribunals, N.Y. Times, Nov. 8, 2005, at A1.Google Scholar

7 §1005(e)–(h), Pub. L. 109-148, 119 Stat. 2739–40 (2005).

8 420 U.S. 738(1975).

9 317 U.S. 1 (1942).

10 Citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).

11 The Court rejected the government’s argument that for this purpose, Article 21 had been superseded by the Detaineee Treatment Act or by the Authorization for Use of Military Force, enacted in the immediate wake of the September 11 attacks. The latter, while “activating] the President’s war powers,” evinced no intent to modify or repeal Article 21, and the former, while recognizing the existence of the commissions, by its terms reserved judgment of the commissions’ consistency with the Constitution and the laws of the United States. Hamdan, 126 S.Ct. at 2775.

12 10 U.S.C.A. §836 (2000).

13 Quoting 1 Customary International Humanitarian Law 355 (Jean-Marie, Henckaerts & Louise, Doswald-Beck eds., 2005).Google Scholar

14 Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 UNTS 3.

15 Walter, Dellinger, A Supreme Court Conversation, Slate, June 30, 2006, at <http://www.slate.com/id/2144476.Google Scholar

16 Harold Hongju, Koh, Setting the World Right, 115 Yale L.J. 2350, 2364 (2006)Google Scholar; see also Linda, Greenhouse, Justices, 5-3, Broadly Reject Bush Plan to Try Detainees, N.Y. Times, June 30, 2005, at A1 Google Scholar (describing decision’s announcement as “a historic event, a defining moment in the ever-shifting balance of power among branches of government that ranked with the court’s order to President Richard M. Nixon in 1974 to turn over the Watergate tapes, or with the court’s rejection of President Harry S. Truman’s seizing of the nation’s steel mills” in the Steel Seizure case).

17 John, Yoo, Op-Ed, The High Court’s Hamdan Power Grab, L.A. Times, July 7, 2006.Google Scholar

18 After Hamdan, Editorial, Wall St. J., July 3, 2006, at A10.

19 See, e.g., Goldwaterv. Carter, 444 U.S. 996 (1979); Louis, Henkin, Is There a “Political Question” Doctrine? 85 Yale L.J. 597 (1976).Google Scholar

20 Rumsfeld v. Padilla, 542 U.S. 426 (2004).

21 See Linda, Greenhouse, justices Let U.S. Transfer Padilla to Civilian Custody, N.Y. Times, Jan. 5, 2006, at A22.Google Scholar

22 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).

23 See Craig, Green, Wiley Rutledge, Executive Detention, and Judicial Conscience at War, 84 Wash. U. L. Rev. 99, 160–63 (2006)Google Scholar (criticizing Court’s interpretation of UCMJ).

24 Hamdi v. Rumsfeld, 542 U.S. 507, 517 (2004); see Jenny, S. Martinez, Case Report: Hamdi v. Rumsfeld, 98 AJIL 782 (2004).Google Scholar

25 The order establishing the commissions deemed them “necessary” in order to “protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks.” See Detention, Treatment, and Trial of Certain Non-citizens in the War Against Terrorism, supra note 2.

26 See Marty, Lederman, The Importance of Common Article 3, July 17, 2005, at <http://balkin.blogspot.com/2005/07/importance-of-geneva-common-article-3.html Google Scholar; Adam, Liptak, The Court Enters the War, Loudly, N.Y. Times, July 2, 2006, §4 (Week in Review), at 4.Google Scholar

27 Ex parte Milligan, 71 U.S. 2 (1866).

28 Samuel, Issacharoff & Richard, H. Pildes, Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime, 5 Theoretical Inquiries in L. 1 (2004)Google Scholar. The Court’s approach in Hamdan is also consistent with Cass Sunstein’s conception of judicial minimalism, threading national security maximalism and liberty maximalism. See Cass, Sunstein, Minimalism at War, Sup. Ct. Rev. (forthcoming 2006).Google Scholar

29 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006).

30 Korematsu v. United States, 323 U.S. 214, 246 (1944).

31 As the Court itself contextualized the decision in Milligan, 71 U.S. at 109,

During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach the investigation of this case, fully sensible of the magnitude of the inquiry and the necessity of full and cautious deliberation.

See also William, H. Rehnquist, Civil Liberty and Civil War: The Indianapolis Treason Trial, 72 Ind. L.J. 927 (1997)Google Scholar (“Did the fact that the Milligan case was decided more than a year after the end of the Civil War affect the way in which it was decided? Did the fact that the Quirin case was decided in the truly dark days for America of World War II—the summer of 1942—affect the way it was decided?”); Jack, L. Goldsmith & Cass, Sunstein, Military Tribunals and Legal Culture: What a Difference Sixty Years Makes, 19 Const. Comment. 261 (2002)Google Scholar (describing complete lack of opposition to Quirin tribunals).

32 Atkins v. Virginia, 536 U.S. 304, 316n.21 (2002) (citing disapproval of the “world community” on the way to invalidating execution of the mentally retarded).

33 Roperv. Simmons, 543 U.S. 551, 576-78 (2005) (citing foreign and international sources in finding unconstitutional the execution of juvenile offenders).

34 In all three cases—Hamdan, Atkins, and Roper—the Court had before it amicus briefs filed by former diplomats to the effect that the challenged governmental conduct itself undermined an effective foreign policy, and that judicial invalidation of the practices at issue would reduce frictions with other nations. See Brief of Amici Curiae Madeleine K. Albright and 21 Former Senior U.S. Diplomats, Hamdan v. Rumsfeld (No. 05-184); Brief of Former U.S. Diplomats Morton Abramowitz et al., Roper v. Simmons (No. 03-633); Brief of Amici Curiae Morton Abramowitz et al., McCarver v. North Carolina (No. 00-827), cert, dismissed as improvidently granted, 533 U.S. 975 (resubmitted m Atkins); see also Lawrence v. Texas, 539 U.S. 558, 573-76 (2003) (citing foreign and international sources in striking down criminal sodomy statute).

35 Concluding Observations of the Human Rights Committee: United States, paras. 5-9, UN Doc. CCPR/C/USA/CO/3 (2006) (citing Supreme Court decisions in Hamdan, Lawrence, Atkins, and Roper as “positive aspects” in implementing ICCPR).