In the Courts

Hamdan v. Rumsfeld Background Information on Legal Issues in the Case

Introduction

The U.S. Supreme Court is expected soon to issue its decision in Hamdan v. Rumsfeld, a case challenging the legality of the military commissions.  A decision could come as early as Thursday, June 15. 

In recent months, the administration has indicated that the decision in the Hamdan case will help determine whether the United States continues to hold prisoners at the U.S. Naval Base at Guantanamo Bay, Cuba.  Last month, President Bush told a German television station that he “would like to close [Guantanamo] and put the prisoners on trial.”  But he said he was waiting for the Supreme Court to “rule on whether they should go before a civil or military court.”  After the suicides of three prisoners last week prompted renewed calls to shut down the facility in Cuba, White House spokesperson Tony Snow again deferred to the Court: “You can't have a final disposition about Guantanamo until the Supreme Court has ruled on the Hamdan case.”
While a ruling in Hamdan will focus on the handful of individuals at Guantanamo being tried before military commissions (so far just 10 detainees), the case raises many of the issues that have been at the heart of U.S. detention and interrogation policy over the past four years:  the scope of Presidential authority in wartime; Congress’ role in setting rules for the trial of prisoners; and the applicability and enforceability of the Geneva Conventions.   Thus, the decision will be likely have a broad impact on the future of the approximately 460 individuals held at Guantanamo Bay, and on U.S. detention policy in the “war on terror” more generally. 

In anticipation of the Court’s decision in Hamdan,this document provides the basic facts of the case and explains the complicated legal issues it raises, including:

• Factual background (p. 2)
• Jurisdiction under the Detainee Treatment Act and the Abstention Doctrine (pp. 2-4)
• Presidential Authority to Convene Commissions and Limits of Authority (pp. 4-5)
• Judicial Enforcement of Geneva Conventions (p. 5)
• Application of Geneva Conventions to Hamdan (pp. 5-6)

Factual Background
 
On July 14, 2004, the Department of Defense formally referred charges against Salim Ahmed Hamdan, a 34-year-old Yemeni national, for trial by military commission under the President’s Order of November 13, 2001. Hamdan was captured by Afghan forces and handed over to the U.S. military in Afghanistan in November 2001.

The government alleges that Hamdan served as Osama Bin Laden’s bodyguard and personal driver. Hamdan is charged with conspiracy to attack civilians, attack civilian objects, commit murder, destroy property, and commit acts of terrorism. Held at Guantanamo Bay since early 2002, Hamdan is represented by Navy Lt. Cmdr. Charles Swift and Neal Katyal. On April 5, 2004, Lt. Cmdr. Swift filed a lawsuit on behalf of Hamdan in the Federal District Court of the Western District of Washington, seeking Hamdan’s release from solitary confinement and challenging anticipated commission proceedings as unconstitutional. Documents unsealed in early August 2004 revealed allegations that Hamdan was beaten, threatened and kept in isolation for upwards of eight months. Commission proceedings began the week of August 23, 2004.

In September 2004, following the U.S. Supreme Court’s decision in Rasul v. Bush, Hamdan’s case was re-filed in the Federal District Court for the District of Columbia.  The District Court, in an opinion by Judge James Robertson, held that the commissions could only hear offenses triable under the laws of war, including the Geneva Conventions; that Hamdan was entitled to an Article 5 hearing to determine his legal status and until then he was entitled to prisoner of war protections; and that the commissions must conform to the procedures laid out in the Uniform Code of Military Justice (UCMJ). 
The U.S. Court of Appeals for the D.C. Circuit reversed that decision in July 2005, holding that commissions were authorized by Congress under the Authorization for the Use of Military Force (AUMF) and the UCMJ.  It also held that the Geneva Conventions were not judicially enforceable, and even if they were the government had not violated the Geneva Conventions as they apply to Hamdan. 

Hamdan appealed the Circuit Court’s decision to the U.S. Supreme Court, which granted certiorari on November 7, 2005.  Since then, Congress passed the Detainee Treatment Act (DTA) on December 30, 2005, purporting to limit the scope of judicial review available for Guantanamo detainees, including military commission defendants.  On January 12, 2006, the government filed a motion for the Supreme Court to dismiss the case on the ground that the recently passed DTA divested Hamdan of the right to seek habeas corpus in a federal court. Briefing by the parties was completed by March 15, 2006, and oral arguments were held on March 28, 2006.

Major Legal Issues

1. Jurisdiction under the Detainee Treatment Act (DTA) and the Abstention Doctrine

There are two significant issues the Court will have to address before getting to the merits of Hamdan’s claims regarding the legality of the military commissions.  The first is whether the DTA strips the Supreme Court of jurisdiction in this case, and the second is whether the Court should defer – under a legal doctrine known as abstention – deciding substantive issues until Hamdan has exhausted all of his remedies before the military commissions directly. 

In the past four and a half years, the administration has consistently argued that the federal courts do not have jurisdiction in cases involving the President’s detention and trial of those, like Hamdan, he has deemed “enemy combatants.”  In December 2003, in oral arguments before the Court of Appeals of the Ninth Circuit, the administration asserted that it could detain anyone it deemed to be an enemy combatant and that there could be no judicial review of the individual’s detention even if there was an allegation of torture or summary execution.  Again, in Hamdan, the administration is arguing that the Supreme Court has no jurisdiction to review Hamdan’s challenges to the legality of the military commissions.

The administration argues that its position in this respect was bolstered significantly with the December 30, 2005 passage of the Detainee Treatment Act (DTA).  The DTA included the McCain Amendment ban on cruel, inhuman and degrading treatment or punishment by U.S. personnel and made the U.S. Army Field Manual on Intelligence Interrogation binding for all military interrogations.  The DTA also included a provision, § 1005, which purports to sharply limit judicial review of petitions for a writ of habeas corpus (civil claims challenging the legality of detention or trial) brought by Guantanamo Bay detainees. 

Under § 1005 (e) of the DTA, the U.S. Court of Appeals for the D.C. Circuit is given exclusive jurisdiction to hear habeas cases brought by individuals held at Guantanamo Bay.  Review is limited only to the status determination made by Combatant Status Review Tribunals (CSRT), ad hoc hearings established by the administration at Guantanamo in 2004 limited to establishing whether a detainee has been properly designated an “enemy combatant.”  In addition, the DTA circumscribes judicial review of military commissions, providing exclusive jurisdiction to the D.C. Circuit to review final decisions by military commissions where a sentence of 10 years or more is imposed.  In all other instances, review is at the discretion of the Circuit Court.  The DTA limits the scope of the Circuit Court’s inquiry to whether the final decision was consistent with the Military Commission Order No. 1, promulgated unilaterally by the Defense Department. 

The primary legal arguments on the DTA revolve around whether it applies to cases, like Hamdan’s, which were already pending when the DTA was passed.  They also concern whether the DTA was meant to preclude the Supreme Court from asserting its traditional appellate jurisdiction over the decisions of lower federal courts – a limitation that, when combined with the DTA’s other restrictions on habeas review by the lower courts (seeming to bar consideration of constitutional claims) – could effectively foreclose all review of detainees’ claims that their detention or trial violates the U.S. Constitution. 

The second argument the government makes for avoiding judicial review of the military commissions is under the federal abstention doctrine.  Federal abstention doctrine was recognized in a 1975 case, Schlesinger v. Councilman, 420 U.S. 738 (1975), which held that civilian courts should not interfere with an ongoing court martial of an American servicemember until he has exhausted his remedies in the military courts.  Applying that doctrine to Hamdan, the government has argued that he needs to exhaust all of his remedies in the military commissions before a civilian court can assess his claims.  But as the D.C. Circuit Court found in rejecting this argument in Hamdan’s case, Schlesinger contemplated an exception to the exhaustion requirement: abstention would not be appropriate if a petitioner were arguing that the military court itself lacked any lawful power to hear the underlying case. In Hamdan’s case, both the District Court and the Circuit Court, despite differing judicial temperaments, held that Hamdan was raising such a challenge to the jurisdiction of the military commission itself, and therefore a civilian court need not abstain until all remedies under the military commissions were exhausted. 

2. Scope of Presidential Authority to Convene Military Commissions  

In the past four years, the administration has asserted unprecedented Executive power to engage in detention operations, without any involvement by Congress and the courts.  As early as February 2002, President Bush and his legal advisors concluded that he had the authority to unilaterally suspend an international treaty.  Alberto Gonzales, then White House Counsel, stated in his Senate confirmation hearings that the President could invoke his authority as Commander-in-Chief to conclude that a law was unconstitutional and thereby refuse to comply with it.  As recently as December 2005, in signing the McCain Amendment into law, President Bush noted that “[t]he executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief,” leaving open the possibility that the President, or another member of the Executive Branch, could authorize cruel, inhuman or degrading treatment of detainees in U.S. custody, despite the clear prohibition of such conduct under that law. 

The Supreme Court has squarely rejected a view of executive power that would give the President the authority to override or otherwise disregard acts of Congress, even in the context of national security policy.  In its landmark decision, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), the Court’s pivotal opinion outlined three categories of Presidential action:  when he is acting with the express authorization of Congress, when he is acting without Congressional authorization, and when he is acting against the expressed or implied will of Congress.  In the last category, the President’s power is “at its lowest ebb.” 

The issue arises in Hamdan with the administration citing two alternative sources in law that give the President power to convene military commissions:  first, that the President has the unilateral authority as Commander-in-Chief to convene military commissions; and second, that Congress has authorized his actions under the Authorization for Use of Military Force (AUMF) and the Uniform Code of Military Justice (UCMJ). 
Congress passed the UCMJ in 1951.  The UCMJ clearly contemplates the creation of military commissions.  Under §836(a) of the UCMJ, “[p]retrial, trial, and post-trial procedures, including modes of proof, for cases…triable in…military commissions,” can be prescribed by the President, but the regulations shall “apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts” and cannot be contrary to other provisions in the UCMJ.  Military commissions at Guantanamo fail this test.  They exclude the accused from the proceedings when classified evidence is discussed (in contravention of § 839 (b)) and allow in evidence obtained under coercion (in contravention of §831).  To the extent the commissions do not comply with these standards, they are contrary to the will of Congress, and therefore beyond the President’s authority under Youngstown.  er these treaties are discussed in section 4, below.

3. Judicial Enforcement of Geneva Conventions

The D.C. Circuit decision now on appeal before the Supreme Court held that even if Hamdan’s detention and trial violate the Geneva Conventions, rights under the Conventions are not enforceable in federal habeas court.  Once signed by the Executive and ratified by the U.S. Senate, international treaties are the “supreme law of the land” under the U.S. Constitution.  The United States signed and ratified the Geneva Conventions in 1955.  Hamdan presents the separate question whether the Geneva Conventions are judicially enforceable in a federal court.  If the commissions violate Geneva, can Hamdan get any redress for the violation in court? 

Hamdan has argued that the treaties are enforceable in court, both of their own force, and as implemented in federal statutes and regulations.  Courts generally refer to international treaties as “self-executing” if they create rights that can be enforced in court without the need for further legislation to implement those rights.  To determine whether a treaty is self-executing, courts generally begin by assessing whether the treaty requires implementing legislation.  If the treaty text is unclear, courts will look to the circumstances surround the treaty’s execution, including its ratification history in the U.S. Senate.  Some provisions of a treaty can be self-executing while others in the same treaty are not.  Hamdan, and international law scholars, argued vigorously to the Supreme Court that this history supports enforcement in this case.

In addition, international treaties which are not considered to be self-executing can nonetheless be judicially enforceable in a federal court if there is implementing legislation.  Hamdan thus also argues that the Geneva Conventions have been implemented through statutes (National Defense Authorization Act and the UCMJ) and regulations (AR 190-8 § 1-5(a)(2), FM 27-10, The Law of Land Warfare, ch. 3 §I ¶71 (1956), Judge Advocate General’s School, Operational Law Handbook 22 (2003)). 

4. Application of Geneva Conventions to Hamdan

A final issue before the Court is what substantive rights Hamdan has under the Geneva Conventions. Most relevant here, the Third Geneva Convention applies to prisoners of war; the Fourth Geneva Convention applies to civilians (including those who take up arms).  On February 7, 2002, President Bush issued a memorandum, over the objections of the then-Secretary of State Colin Powell, declaring that the Geneva Conventions did not apply to members of al Qaeda, and that members of the Taliban were not protected under the Third Geneva Convention as prisoners of war.  Since that time, the administration has asserted, in this case and elsewhere, that there should be no judicial review of the President’s decision to set aside the Geneva Conventions and, to the extent a court may review his decision, that review should defer to the President’s interpretation of the rights available under the treaties.

By their terms, the Geneva Conventions apply in times of international and non-international armed conflict.  International armed conflict is defined as “any difference arising between two States and leading to the intervention of armed forces…even if one of the Parties denies the existence of a state of war.”  By this definition, the war in Afghanistan beginning in October 2001 is clearly an international armed conflict. 

In times of international armed conflict, Article 5 of the Third Geneva Convention requires a competent tribunal to determine the status of individual (whether he is a prisoner of war or civilian).  Until that time, the individual whose status is in doubt is protected under the Third Convention.  None of the Guantanamo detainees has been given an Article 5 hearing.  Further, Article 102 of the Third Geneva Convention requires prisoners of war to be tried in the same process as U.S. service members, namely, by courts martial.  Finally, Article 3, common to all four Geneva Conventions, articulates the most basic requirements of the law of war in the treatment of prisoners.  Among other things, it requires trials by “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”   

Hamdan argues that he cannot be tried by a military commission because he was never afforded an Article 5 hearing to determine his combatant status.  Thus, he argues, he should be treated as a prisoner of war under the Third Geneva Convention until his status is no longer in doubt; and he is therefore entitled to the same trial protections as would be afforded the military of the captor state – that is, a full court martial under the UCMJ.  Hamdan also argues that these military commissions contravene the laws of war by asserting jurisdiction over events taking place outside a zone of combat or occupied territory.  Lastly, Hamdan argues that one of the charges against him – conspiracy – is not an offense under the laws of war.  Of these three arguments, the justices spent a good deal of time during the oral arguments on whether conspiracy was an offense under the laws of war.