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VOTING LINEUP.  The five votes that made possible the decision in their unnecessarily complicated opinion came from Justices Stevens (who wrote for the plurality), Kennedy, Souter, Ginsburg, and Breyer.  Dissenting were Justices Scalia, Thomas, and Alito.  (Chief Justice Roberts excused himself, having ruled for the government when the case was in the District of Columbia Court of Appeals.)


FACTS.  The case had its genesis in November 2001, when our military and the Northern Alliance were fighting the Taliban in Afghanistan.  At that time, President Bush issued an Order relating to the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,”


The Order applied to non-citizens whom the President had “reason to believe” (1) were members of al Qaeda or (2) had engaged or participated in terrorist activities aimed at or harmful to the United States.


The Order provided that such persons would be tried by Military Commissions.


Under the Military Commission rules, among other provisions an “enemy combatant” and his lawyer could be excluded from any part of the proceedings that were closed by the tribunal’s presiding officer.  The proceedings could be closed to protect classified information and intelligence operations, for the physical safety of participants, and in the name of other national security interests.  Although military defense counsel had a right to be present in the closed proceedings, the tribunal’s presiding officer could bar the lawyers from revealing to their clients what transpired there.


As to evidence, everything was admissible if, in the presiding officer’s opinion, it would have probative value to a reasonable person.  The enemy combatant need never be told of the evidence against him.


Finally, the enemy combatant and his lawyer could be denied access to classified and other protected information if the presiding officer determined that it was probative.


In 2001, Salim Ahmed Hamdan was captured on the battlefield in Afghanistan and in 2002 sent to Guantanamo Bay.


In 2003, the President determined that Hamdan was subject to the Military Commission Order, though the specific charges had not yet been made against him.  A military lawyer was appointed to represent Hamdan.


Soon afterward, Hamdan’s lawyer asked for the specific charges, and requested a speedy trial as provided in Article 10 of the Universal Code of Military Justice (which governs judicial proceedings in the United States military).


In early 2004, the government denied Hamdan’s lawyer’s requests on the ground that the UCMJ didn’t apply to the enemy combatant, whose trial would be by Military Commission.


In July 2004, the government filed specific charges against Hamdan.  Quoting from Justice Stevens’s opinion:


The charging document . . . contains 13 numbered paragraphs. The first two paragraphs recite the asserted bases for the military commission’s jurisdiction—namely, the November 13 Order and the President’s July 3, 2003, declaration that Hamdan is eligible for trial by military commission. The next nine paragraphs, collectively entitled “General Allegations,” describe al Qaeda’s activities from its inception in 1989 through 2001 and identify Osama bin Laden as the group’s leader. Hamdan is not mentioned in these paragraphs.


Only the final two paragraphs, entitled “Charge: Conspiracy,” contain allegations against Hamdan. Paragraph12 charges that “from on or about February 1996 to on or about November 24, 2001,” Hamdan “willfully and knowingly joined an enterprise of persons who shared a common criminal purpose and conspired and agreed with [named members of al Qaeda] to commit the following offenses triable by military commission: attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; and terrorism.” * * * There is no allegation that Hamdan had any command responsibilities, played a leadership role, or participated in the planning of any activity.


Paragraph 13 lists four “overt acts” that Hamdan is alleged to have committed sometime between 1996 and November 2001 in furtherance of the “enterprise and conspiracy”: (1) he acted as Osama bin Laden’s “bodyguard and personal driver,” “believ[ing]” all the while that bin Laden “and his associates were involved in” terrorist acts prior to and including the attacks of September 11, 2001; (2) he arranged for transportation of, and actually transported, weapons used by al Qaeda members and by bin Laden’s bodyguards (Hamdan among them); (3) he “drove or accompanied [O]sama bin Laden to various al Qaida sponsored training camps, press conferences, or lectures,” at which bin Laden encouraged attacks against Americans; and (4) he received weapons training at al Qaeda sponsored camps.


Also in July 2004, a Combatant Status Review Tribunal ruled that Hamdan’s continued incarceration at Guantanamo Bay was justified because he was an “enemy combatant.” (An “enemy combatant” was defined by the military order as “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States”.)

Meantime, proceedings against Hamdan began before the Military Commission.

His lawyer then sued in a federal district court seeking a writ of habeas corpus to release Hamdan, claiming that the Military Commission lacked jurisdiction to try him because:

1.      Neither any act of Congress nor any provision of the law of war authorized the conspiracy charge, and

2.      The Military Commission’s procedures—including especially the rules of evidence—violated basic principles of military [UCMJ] and international [Geneva Conventions] law.

In late 2004, the United States District Court for the District of Columbia halted the Military Commission’s proceedings against Hamdan.  The court had several reasons.

1.      The President’s power to establish Military Commissions extended only to “offenders or offenses triable by Military [Commission] under the law of war”;

2.      The law of war includes the Geneva Convention (III) Relative to the Treatment of Prisoners of War,

3.      Hamdan was entitled to protection under the Third Geneva Convention until there was a judicial determination that he was not a prisoner of war; and

4.      Aside from whether or not Hamdan was appropriately determined to be a prisoner of war, the Military Commission that he was being tried before violated the UCMJ’s Article 10 and Common Article 3 of the Third Geneva Convention because of the Commission’s ability to convict Hamdan with evidence he would never have had access to.

The government appealed, and a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, in a 2-1 decision (now-Chief Justice Roberts in the majority), reversed the District Court essentially on two grounds: (1) because Supreme Court precedent required the conclusion that the Military Commission did have jurisdiction, and (2) because the Geneva Conventions were not judicially enforceable.


In December 2005, Congress passed and the President signed the “Detainee Treatment Act.,” Section 1005(e)(1) of which provides that:  “[N]o 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, Cuba.”  This section took “effect on the date of the enactment of this Act,” December 30, 2005.


At that time, Hamdan’s application for habeas corpus was pending.


ISSUES IN THE SUPREME COURT.  Hamdan sought review in the Supreme Court.  The Court took the case, in Justice Stevens’s words, “to decide [1] whether the military commission convened to try Hamdan has authority to do so, and [2] whether Hamdan may rely on the Geneva Conventions in these proceedings.”  In other words, [1] jurisdiction and [2] whether the Military Commission squared with the Geneva Conventions.


DECISION.  The jurisdiction-stripping Detainee Treatment Act” did not apply, so the Court had the power to rule on the case. The Geneva Conventions did, so the structure of the Military Commission and the rules it operated under were insufficient to safeguard Hamdan’s rights under the UCMJ and international law.


FACTORS MOTIVATING THE COURT’S DECISION.  As to the jurisdictional issue, Stevens’s opinion asserted that employing basic principles of statutory construction Section1005(e)(1) had to be read as divesting judicial jurisdiction only as to future cases, not those then pending, as was Hamdan’s. 


As to the issues involving Hamdan’s  Military Commission, Stevens ruled that Congress had not authorized that particular type, and that the commission suffered fatally from structural and procedural deficiencies, especially those involving the charge of conspiracy, the closure of proceedings, and the use and withholding of evidence—deficiencies illegalized, the Court ruled, by Common Article 3 of the Geneva Conventions.


DISSENTING OPINIONS. Justice Scalia dissented, emphasizing the jurisdictional issue.  He noted that Stevens  could not find even one case “in the history of Anglo-American law (before today) in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation. By contrast, the cases granting such immediate effect are legion . . . .”


Adverting to fundamental originalist principles, Scalia wrote that “[w]orst of all is the Court’s reliance on the legislative history of the [Detainee Treatment Act] to buttress its implausible reading of §1005(e)(1). We have repeatedly held that such reliance is impermissible where, as here, the statutory language is unambiguous.* * * As always—but especially in the context of strident, partisan legislative conflict of the sort that characterized enactment of this legislation—the language of the statute that was actually passed by both Houses of Congress and signed by the President is our only authoritative and only reliable guidepost.”  The statute was clear on its face, and that was that.


Justice Thomas's dissent agreed with Scalia on the originalist-driven jurisdictional issue, and thus Thomas addressed the Geneva Conventions/Military Commission question.


Thomas led off with a broad stroke: The Court’s opinion, he wrote, “openly flouts our well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs. The Court’s evident belief that it is qualified to pass on the ‘[m]ilitary necessity’ . . . of the Commander in Chief’s decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot go unanswered.”


Thomas then followed with an explanation of each branch of government’s role in the “conduct of war,” and then “emphasize[d] the complete congressional sanction of the President’s exercise of his commander-in-chief authority to conduct the present war.”  Because of that, Thomas argued, the Court’s duty to “defer to the Executive’s military and foreign policy judgment is at its zenith; it does not countenance the kind of second-guessing the Court repeatedly engages in today.” Thomas reminded Stevens and the others what, in an earlier terrorist case, Thomas had said in dissent about military and foreign policy judgments. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

The balance of Thomas’s dissent was devoted to a rebuttal of each of the Stevens points, culminating near the end with this statement:

Today a plurality of this Court would hold that conspiracy to massacre innocent civilians does not violate the laws of war. This determination is unsustainable. The judgment of the political branches [Congress and the President] that Hamdan, and others like him, must be held accountable before military commissions for their involvement with and membership in an unlawful organization dedicated to inflicting massive civilian casualties is supported by virtually every relevant authority, including all of the authorities invoked by the plurality today. It is also supported by the nature of the present conflict. We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11—even if their plots are advanced to the very brink of fulfillment—our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists “red handed” . . . in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President’s ability to confront and defeat a new and deadly enemy.


After seeing the plurality overturn longstanding precedents in order to seize jurisdiction over this case [see Justice Scalia’s dissent] . . . it is no surprise to see them go on to overrule one after another of the President’s judgments pertaining to the conduct of an ongoing war. Those Justices who today disregard the commander-in-chief’s wartime decisions, only 10 days ago [in another end-of-the-term case]deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency’s wildly implausible conclusion that a storm drain is a tributary of the waters of the United States. * * * It goes without saying that there is much more at stake here than storm drains. The plurality’s willingness to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous.


Next, Thomas turned to Stevens’s reliance on the government’s failure to comply with the Uniform Code of Military Justice and four Geneva conventions, and after a lengthy and exhaustive analysis of history, precedent, and policy, concluded that Hamdan’s Military Commission was legally adequate, both as to structure and procedures.


Justice Alito’s dissent agreed with Scalia on the jurisdictional issue, and with most of Thomas’s dissent—most, not all, because Alito believed that Thomas had addressed issues that there was no need for the Court to reach.

Here’s how Alito saw the case:

The holding of the Court, as I understand it, rests on the following reasoning. A military commission is lawful only if it is authorized by 10 U. S. C. §821; this provision permits the use of a commission to try “offenders or offenses” that “by statute or by the law of war may be tried by” such a commission; because no statute provides that an offender such as petitioner or an offense such as the one with which he is charged may be tried by a military commission, he may be tried by military commission only if the trial is authorized by “the law of war”; the Geneva Conventions are part of the law of war; and Common Article 3 of the Conventions prohibits petitioner’s trial because the commission before which he would be tried is not “a regularly constituted court,” Third Geneva Convention . . . .  * * * I disagree with this holding because [Hamdan’s} commission is “a regularly constituted court.”


Alito went on to demonstrate exactly that.


Not content to let his dissent rest on that point alone, Alito added that:


I also disagree with the Court’s conclusion that [Hamdan’s] military commission is “illegal” . . . because its procedures allegedly do not comply with [the Uniform Code of Military Justice].  Even if [the UCMJ], unlike Common Article 3, does impose at least a limited uniformity requirement amongst the tribunals contemplated by the UCMJ . . . and even if it is assumed for the sake of argument that some of the procedures specified in Military Commission Order No. 1 impermissibly deviate from court-martial procedures, it does not follow that the military commissions created by that order are not “regularly constituted” or that trying [Hamdan] before such a commission would be inconsistent with the law of war. If Congress enacted a statute requiring the federal district courts to follow a procedure that is unconstitutional, the statute would be invalid, but the district courts would not. Likewise, if some of the procedures that may be used in military commission proceedings are improper, the appropriate remedy is to proscribe the use of those particular procedures, not to outlaw the commissions. I see no justification for striking down the entire commission structure simply because it is possible that petitioner’s trial might involve the use of some procedure that is improper.


Alito had one last point to make.


He concluded that all three requirements of  Common Article 3—“(1) a court, (2) that is appointed, set up, and established in compliance with domestic law, and (3) that respects universally recognized fundamental rights”—had been all satisfied.

It seems clear that the commissions at issue here meet this standard. Whatever else may be said about the system that was created by Military Commission Order No. 1 and augmented by the Detainee Treatment Act . . . this system—which features formal trial procedures, multiple levels of administrative review, and the opportunity for review by a United States Court of Appeals and by this Court—does not dispense “summary justice.”


EDITORIAL COMMENT.  Some initial reactions to the Court’s decision in Hamdan v. Rumsfeld bordered on the hysterical.  Uninformed commentators reported that the Court’s ruling would close Guantanamo Bay, turn enemy combatants into Geneva Conventions-type prisoners of war, apply to all current and future detainees held there, and/or establish a timetable for their release.

Not one of these issues was decided by the Supreme Court.  Not one!

Indeed, the bright side of the decision, if it can be said that there is one, is that the Court’s decision does recognize the legitimacy of Military Commissions, albeit ones different from the one convened to try Hamdan.

Only time will tell how much the Hamdan decision will affect America’s war against Islamic jihad.  But even if the Commander-in-Chief and Department of Defense are able to work around the decision and continue to neutralize captured terrorists, still, the justices who rendered the Hamdan decision—Stevens, Kennedy, Souter, Ginsburg, and Breyer—have violated their oaths to “faithfully . . . discharge and perform [their] duties . . . under the Constitution . . . of the United States.”  

In an extreme exercise of judicial usurpation and arrogance, they have made a mockery of the Constitution’s separation of powers and significantly intruded into the President’s power as Chief Executive and Commander in Chief.  The implications of this intrusion—exalting the power of federal courts to micromanage a war while further limiting the President’s freedom of action by forcing him to negotiate with Congress about his conduct—do not auger well for America’s war against Islamic jihad.

Though the justices responsible for this abominable decision have not committed treason, as some outraged but emotional and uninformed commentators have asserted, surely they have given “aid and comfort” to the enemy.  For this they deserve the scorn of the American people.