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Supreme Court Decision Update - Hamdan v. Rumsfeld

supreme1.jpgThe Supremes waited ‘till the very end of the term to release their 185 page (!!) decision in one of the most anticipated cases of the whole term, Hamdan v. Rumsfeld (PDF of the opinion), the case about the Guantanamo military commissions. As many expected, the Court ruled in the Guantanamo detainee’s favor, finding the commissions illegal.

QuizLaw Analysis: With this case, the Supremes have ruled that President Bush was acting outside of any valid authority when he set up the tribunal commissions at Guantanamo Bay, and that these commissions are illegal under both the Geneva Convention and U.S. military justice law. This raises obvious questions about “what happens next” for the current Gitmo detainees, but it is certain to bring further criticism of Bush’s, and his administrations’, handling of the war on terror.

What’s the background of this case? In 2001, while U.S. forces were fighting in Afghanistan, they captured Salim Ahmed Hamdan, a citizen of Yemin. In 2002, they sent him to Guantanamo Bay, a U.S. naval base in Cuba (often referred to as “Gitmo”) where many suspects in the “war on terror” were being detained. In 2004, Hamdan was charged with being involved in a conspiracy to commit terrorism, and he was set to be tried before a military commission that had been setup at Guantanamo. Hamdan filed petitions for writs of habeas corpus and mandamus, claiming that he was being detained in violation of his due process rights and that he could not be prosecuted in this manner. Specifically, Hamdan argued that neither Congress nor the general laws of war recognize the authority of a military commission to prosecute someone for this type of conspiracy crime. Hamdan also argued that the actual procedures of the commission violate military and international law.

Hamdan’s writ for habeas corpus was granted by the District Court, which ruled that the Government has to show that a detainee is a prisoner of war before it can prosecute the detainee before a military commission. The District Court based this requirement on the Geneva Conventions, which the U.S. is a signatory to. However, the Court of Appeals for the D.C. Circuit reversed the District Court, finding that the Geneva Conventions were not judicially enforceable and that the military commissions were therefore legal.

So what does the Supreme Court say? The short version of things is that there is a majority ruling on two issues. First, the Court has the authority and jurisdiction to rule on the validity of military commissions. Second, the Guantanamo military commission is illegal under U.S. military justice law and under the Geneva Conventions, and the commission was not authorized by either Congress’ authorization of a response to the 9/11 attacks or the Detainee Treatment Act of 2005. There was another issue, whether or not detainees can be tried under conspiracy charges such as the charge before Hamdan, which the Court split on. Only four Justices ruled that Hamdan could not be charged with conspiracy, so this decision is not really binding and its long-term effect is unclear.

How did the votes break down? While there are six separate opinions in the decision, the vote breakdown is actually relatively easy. Stevens, Souter, Ginsburg, Breyer and Kennedy were the majority which ruled that the Court had jurisdiction in this case and then went on to find the military commissions illegal. Those same Justices, except for Justice Kennedy, are the ones who ruled that Hamdan couldn’t be charged with conspiracy. Justices Scalia, Thomas and Alito dissented to everything, each writing their own opinion. And Chief Justice Roberts didn’t take part in this case because he ruled on it when he was sitting on the Court of Appeals for the D.C. Circuit (and he supported the commissions’ legality, so he’s probably a bit tweaked to see his decision overturned today by his brethren).

So for those keeping score, it’s 5-3 that the Court had jurisdiction, 5-3 that the commissions are illegal and 4-3 on whether detainees can be charged with conspiracy (while Kennedy didn’t join with the plurality on this point, he also declined to express a view in his own written opinion).

Do the Supremes have the authority to hear this habeas application? Yes, one of the things we have a majority ruling on is that the Court has jurisdiction over this case. The Government made two arguments here, and the first one involves a rather intricate reading of the Detainee Treatment Act of 2005 (the DTA). One section of the DTA, § 1005(e)(1), says that no court has jurisdiction to consider any application for a writ of habeas corpus filed by any Guantanamo detainee. Section 1005(e)(2) and 1005(e)(3) of the DTA say that the D.C. Circuit Court has exclusive jurisdiction to review: (i) any final decisions of a Combatant Status Review Tribunal that a detainee was properly designated as an enemy combatant; and (ii) any final decisions of a military commission (but the review’s scope is limited to only questions of compliance with military standards and the Constitution). Finally, section 1005(h) says that 1005(e)(2) and (e)(3) apply to cases pending at the time of the DTA’s enactment. However, it is silent as to § 1005(e)(1).

Ok, so the Government says that § 1005(h) should also apply to § 1005(e)(1), meaning that the courts have no jurisdiction over habeas applications pending at the time of the enactment of the DTA (remember, Hamdan’s application was pending at that time). Stevens turns to basic statutory interpretation to decide that the government is wrong, at least with respect to cases like this, where the habeas application was already pending at the time § 1005(e) was enacted. Stevens cites “[a] familiar principle of statutory construction,” which allows for a negative inference to be drawn when certain language is excluded from one provision but “included in other provisions of the same statute.” It’s conclusive for Stevens that § 1005(h) explicitly applies itself to (e)(2) and (e)(3) but is silent as to § 1005(e)(1). In addition, an earlier draft of § 1005(e) actually included similar language but since that language was not included in the final draft, Stevens argues that the Court can make a negative inference that Congress did not want this section to apply to pending cases.

The Government’s second argument was that, even if the Court has jurisdiction, it should abstain from exercising that judgment because of a prior Supreme Court case, Councilman. In that case, the Supremes basically created a new rule that courts should keep-out of pending court-martial proceedings against service members. There were two reasons the Court created that rule in Councilman: (i) the military justice system can most efficiently deal with military discipline if the civilian courts stay out of it; and (ii) the courts should respect the balance that Congress created between military procedure and fairness to service members, when it created the military justice and review system. These reasons simply don’t apply to the current situation: (i) Hamdan is not a member of U.S. armed forces; (ii) the tribunal trying him isn’t part of the military judicial system; and (iii) there’s not the same type of appeal/review process set up for tribunal decisions as there are for military courts. Stevens thinks it’s better to look at another Supreme case, Quirin, where the Court did not abstain from hearing the habeas applications of some Germans who were before a military commission. The Court got involved because of the importance of the questions at issue, the public interest in those issues getting resolved quickly, and the Court’s duty and obligation to preserve Constitutional safeguards. As far as Stevens is concerned, those same reasons rule the day here, at least for this particular case.

With that out of the way, what about these military commissions - are they legal? Stevens, still with a majority in his pocket, does not believe that the Guantanamo military commission is legal. First, the commission “was born of military necessity,” but is not actually authorized by the Constitution nor created by any statute. The Constitution makes the President the “Commander in Chief,” presiding over the armed forces, but it put Congress in charge of making rules relating to “captures on land and water” and regulating the armed forces. In other words, Congress makes military laws, and the President executes those laws. Stevens then recognizes that Congress has explicitly authorized that military commissions can be set up to try folks for “offenses against the law of war in appropriate cases.” This does not give the President “a sweeping mandate” to invoke military commissions whenever wants; instead, it allows him to use such commissions in compliance “with the law of war.” This is not changed or overridden by either the Congressional Authorization for Use of Military Force granted to the President or the DTA. Neither includes any language even suggesting that Congress intended to expand the President’s ability to use military commissions.

Since there is no Congressional authorization for the Guantanamo military commission trying Hamdan, Stevens says we should next look at whether the commission is otherwise “justified under the ‘Constitution and laws,’ including the law of war.” Here, Stevens loses his majority, as Kennedy bows out of this portion of the opinion. We’ll discuss it in more depth below, but the plurality ultimately concludes that Hamdan has not been charged with an offense which the law of war allows military commissions to try - that is, “conspiracy” is not a valid offense under the law of war. It doesn’t matter that Stevens lost his majority on the above issue, however, because he regains his majority in concluding that the commission’s structure and procedure violate the Uniform Code of Military Justice (the UCMJ) and the Geneva Conventions.

Stevens begins by explaining some of the procedures involved in a trial before the Gitmo commission. The emphasis of Steven’s displeasure is with the evidentiary aspects of the proceeding. The detainee is entitled to an appointed military counsel or to hire his/her own civilian counsel (if that attorney has sufficient security clearance). The commission also allows the detainee to have a copy of the charges, and affords some other basic defendant rights. “These rights are subject, however, to one glaring condition,” which is that the commission has the discretion to “close” proceedings, preventing the accused detainee from learning anything about the evidence presented against him. The commission also has discretion to deny access to any “protected information,” if it decides that a full and fair trial can still be had even if the accused doesn’t know about it. Finally, the commission is also allowed to admit any evidence (Steven’s emphasis, not ours) that may have probative value, such as hearsay and coerced testimony.

Stevens then turns to the Government’s argument that a procedural challenge is premature because the commission proceedings against Hamdan aren’t finished yet - Hamdan can challenge them when all is said and done, the Government argues, and there’s no reason to think that the procedure won’t be done in a manner faithful to the law. Stevens doesn’t buy this. First, Hamdan would not have an automatic right to appeal a decision against him since he’s not subject to the death penalty or more than 10 years in prison. Second, the commission has already exercised procedures in violation of the law, because Hamdan has been excluded from his trial. So Stevens tells the Government, essentially, to get bent - the Court’s looking at the procedural challenge.

How does this military commission violate the Uniform Code of Military Justice? The short version is that Stevens and his majority have decided that the commission’s procedures vary from the procedures used in courts-martial, and no proper justification has been provided by the President. While there are differences between military commissions and courts-martial, the same rules and procedures have historically applied to both (Stevens mentions a “glaring historical exception,” the World War II trial of General Yamashita, but says that the precedent involved in that situation “has been seriously undermined by post-World War II developments”). Nevertheless, Stevens recognizes that there are times when court-martial procedures can be departed from, if that departure is “tailored to the exigency that necessitates it.” Such a departure is governed by Article 36 of the Uniform Code of Military Justice (the UCMJ). Article 36 gives the President the power to promulgate procedural rules for both courts-martial and military commissions, with two restrictions: (i) any such procedural rule cannot be contrary to or inconsistent with the UCMJ; and (ii) all rules must be “uniform insofar as practicable,” meaning the same rules should be applied to courts-martial as to military commissions (i.e., don’t deviate from the procedures in the Manual for Courts-Martial unless you have to). Stevens skips over this first restriction, declining to decide whether any of the commission procedures are contrary to or inconsistent with the UCMJ. This is because he has concluded that “the ‘practicability’ determination the President has made is insufficient to justify variance from the procedures governing courts-martial.”

Although the President has concluded, in his official Article 36 determination, that it would be impracticable to apply the rules of law used in District Court cases to Hamdan’s commission, he has not made such a determination as to the rules for courts-martial, and that’s what is called for by Article 36. So Stevens looks to the record and finds nothing to suggest that it would be impracticable to use court-martial rules. And even if he is willing to consider the reason provided by the President with regard to District Court procedures, the only relevant one is the danger presented by terrorism. However, while Stevens acknowledges the importance of this danger, he just doesn’t see how this requires using different procedures. And Stevens says that he finds the lack of a showing of impracticability especially troublesome in light of the fact that Hamdan was denied “one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: the right to be present.” At the end of the day, it boils down to this - since there’s no showing of impracticability, the courts-martial rules must apply, and since the commission “deviates in many significant respects from these rules, it necessarily violates Article 36(b).”

How does this military commission violate the Geneva Conventions? Stevens notes that the Court of Appeals dismissed Hamdan’s challenge based on the Geneva Conventions because it decided, among other things, that the Conventions aren’t judicially enforceable, that Hamdan isn’t entitled to their protection anyway, and that even if he was entitled to their protection, the Court should abstain from enforcing the Conventions under the principal addressed in Councilman. Stevens has already talked about why the Court is not abstaining under the Councilman rule, so he focuses here on the other two issues.

First there’s the issue about whether the Geneva Conventions are judicially enforceable (this harkens back to Monday’s Supreme decision in Sanchez-Llamas v. Oregon, where Chief Justice Roberts declined to decide whether the Vienna Convention was judicially enforceable). The Court of Appeals relied upon a 1950 Supreme Court case, Johnson v. Eisentrager, which involved several German nationals challenging their war crime conviction by a tribunal in China. The Eisentrager Court decided the case on the merits but included a “curious statement [buried in a footnote] suggesting that the Court lacked power even to consider the merits of the Geneva Convention argument.” The Court of Appeals relied on this footnote in making its decision, and Stevens notes that the footnote is simply not controlling. Further, whatever rights Hamdan has, those rights are clearly “part of the law of war” and the UCMJ requires compliance with the law of war.

The bigger issue here is whether the Geneva Conventions even apply to Hamdan. The Court of Appeals’ rationale that the Conventions did not apply went like this - Hamdan was captured while the U.S. was at war with al Qaeda, this war is separate and distinct from the U.S. war with the Afghani Taliban, and since al Qaeda is not a signatory to the Conventions, the Conventions don’t apply to the present situation. Stevens sort of punts this issue, deciding that the Court doesn’t need to decide whether all of the Geneva Conventions apply where “the relevant conflict is not one between signatories” because “there is at least one provision” that does apply.

The provision in question is Common Article 3 (referred to as “Common” because it appears in all four of the Geneva Conventions), which says that whenever there’s a “conflict not of an international character” which is taking place in the territory of a Conventions signatory, any party to the conflict must apply certain protections to people not actively involved in the hostilities. This includes opposing armed force members who lay down their weapons and those who are detained. One of the protections that falls within this category is that sentences can’t be handed out without a judgment being “pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The Government argues that Common Article 3 shouldn’t apply here since the U.S.’s fight with al Qaeda is of an international character. Stevens rejects this however, saying that “conflict not of an international character” is simply intended to provide a broader scope than that of Article 2, which is more directed towards international war between nations. This broader scope is intended to encompass situations where one party to the conflict is not actually a legal entity (i.e., a nation). For example, this affords protection where a country is involved in a civil war - the rebels, who have no international legal status, are afforded the protections offered by Common Article 3. Thus, Stevens concludes, Common Article 3 applies to the current situation.

Since Common Article 3 applies to Hamdan’s situation, he may only be tried by “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civil peoples.” Since Common Article 3 doesn’t specifically define what “a regularly constituted court” is, Stevens looks to other sources. Although he doesn’t actually provide a definition of his own, he appears to latch on to the Red Cross’ definition of the term, which requires such a court to be “established and organized in accordance with the laws and procedures already in force in a country.” Here, this means that a military commission, to meet this definition, must follow the standards of our own military justice system which, in turns, means it must follow court-martial procedure or have an justified explanation for why it deviates from those procedures. And as we know, Stevens and his majority have already decided that the military commission fails to do so.

As a final point here, Stevens also notes that the procedures employed and followed by the military commission do not afford the guarantees which civilized folks would recognize as being indispensable. This is the other place where Kennedy declined to join, so this again lacks the weight of a majority. However, the only real import in this section is Stevens’ repeated emphasis of his discomfort with the fact that the military commission dispenses with customary international law by not allowing for the accused to be present at his trial and aware of the evidence against him.

Anyway, at the end of the day, the point here is relatively clear:

Common Article 3 obviously tolerate a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.

As a final point on this issue, the folks over at SCOTUSblog have raised an interesting interpretation of this portion of the decision. Namely, that because Common Article 3 applies to the war against terror, there are “enormous implications for the Administration’s detention and interrogation practices, because the Administration’s legal conclusion that [Common Article 3] does not apply…was the the key linchpin to the entire edifice of legal maneuvers that led to waterboarding, hypothermia, degradation, etc….Per today’s decision, the Administration appears to have been engaged in war crimes.”

Ok, but if the military commissions are illegal, can Hamdan still be detained in Guantanamo? Stevens concludes by noting that the Court has assumed that the Government is correct in assessing that “Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity.” Thus, Stevens wants to make it very clear that the Court has not addressed, in any way, the Government’s ability to “detain him for the duration of active hostilities in order to prevent such harm.” So at the end of the day, Stevens has told the President that he can keep all the Guantanamo detainees locked up, if they’re assessed to be a danger, but he cannot try them in the fashion that Hamdan was being tried.

Now can we back up and take a look at this “conspiracy” and “rule of law” business that Stevens lost his majority on? Ok, so if you remember back, we were talking about Stevens’ determination that the military commissions aren’t legal under the UCMJ or the Geneva Convention. But first, he looked into the fact that they’re not authorized by Congress. He then went on a slight sidetrack to explain why doesn’t think that the charge against Hamdan is even justified under U.S. law or the law of war. It didn’t matter for his ultimate decision, which is good for him since he lost Kennedy in this part of the opinion, giving him a mere plurality of four votes. So what is this plurality section all about?

Well, Stevens begins by looking at the historical use of military commissions, identifying three situations where they’ve generally been used. The first is in the place of civilian courts when there’s been a declaration of martial law. That is not analogous to the present situation, since no martial law has been declared in Guantanamo. The second place military commissions have been used is where there’s no civilian government yet and, instead, a temporary military government has been setup, such as in occupied territories. Again, this doesn’t apply to the current situation because Guantanamo Bay isn’t an occupied enemy territory. The third and final historical use of military commissions has been where they’ve been “convened as an ‘incident to the conduct of war,’” to allow for the immediate seizure and trial of military enemies who have attempted to attack the military or get in its way. This third type of commission is the only one that’s close to what is going on in Guantanamo Bay. For such a commission to have proper jurisdiction, Stevens identifies four preconditions that must be met.

First, the military commission can only assume jurisdiction of those offenses which were committed within “the theatre of war.” Second (and pay attention, because this is the one that Stevens focuses on), the offense which the accused is being charged with must have been committed during the war in question. Third, the commission can only try members of the enemy army who have conducted “illegitimate warfare or other offences in violation of the laws of war” or members of the military commission’s own army who, during wartime, committed some crime not otherwise triable by criminal courts or under the Articles of War. Fourth, and finally, the commission only has jurisdiction over two types of offenses - where the law of war, as recognized by military tribunals, has been violated, or where military orders or regulations have been breached (and where the offender can’t be tried by court-martial).

So, with these four preconditions in mind, the issue is whether they exist in Hamdan’s case. Hamdan is charged for conspiracy extending from 1996 through November 2001. Stevens notes that of this 5-year period, only two months fall after September 11, 2001 and the Congressional enactment of the AUMF which gave the President his current war powers. The Government doesn’t allege any specific act against Hamdan which took place after 9/11, meaning that “[n]one of the overt acts that Hamdan is alleged to have committed violates the law of war.” So the second precondition to such a military commission, that the charge took place during war time, simply isn’t present. Stevens says this casts doubts on the commission’s legality and, more importantly, is symptomatic of “the most serious defect of this [commission’s] charge: The offense it alleges is not triable by law-of-war military commission.”

So now, we finally get to the real meat of the plurality portion of the decision, Stevens’ conclusion that “conspiracy” is not a valid charge for the military commission to try. While Congress hasn’t included “conspiracy” in its definition of war crimes, that’s not the end of the argument because Congress has “‘incorporated by reference’ the common law of war,” which means that military commissions may be able to try some offenses which aren’t explicitly defined as a war crime by Congress. But here, there’s no clear precedent for defining “conspiracy” as a war crime. Stevens says that “conspiracy” has rarely been charged by U.S. military commissions acting as the third law-of-war type of commission, and there’s nothing about “conspiracy” in either the Geneva Conventions or the Hague Conventions. Similarly, it’s not been recognized by other international sources, such as the International Military Tribune at Nuremberg, which actually explicitly refused to allow conspiracy charges. And the Government’s attempt to rely on Quirin, the case where German prisoners brought habeas applications, is not persuasive to Stevens. He says that the Court didn’t actually decide, in that case, whether conspiracy was a triable war crime and, more importantly, that Court emphasized an offense being “completed,” which is a limitation Stevens says kicks “conspiracy” firmly outside the scope of war crimes.

As a result of all of this, Stevens concludes that the military commission doesn’t have proper jurisdiction to try a conspiracy charge, which means it has no authority to try Hamdan. But again, this decision is only a plurality, and its impact is therefore entirely unclear.

What about the concurring opinions? Justice Breyer wrote a brief one-page concurrence, and Justice Kennedy wrote a concurrence-in-part (coming in at a longer 20 pages). You can read about those two opinions here.

What about the dissenting opinions? As mentioned above, all three dissenters (Justices Scalia, Thomas and Alito) each wrote their own dissenting opinion. You can read about these three dissenting opinions here.