Summary of Hamdan v. Rumsfeld

Citation:  548 U.S. 557 (2006)

Relevant Facts:  Following the terrorist attacks of September 11, 2001, Congress authorized the President to use force against those responsible, including nations, groups, and individuals.  During the course of ongoing U.S. Operations in Afghanistan, Petitioner Hamdan was captured by American forces.  Initially held at Guantanamo Bay, under the authority of the President exercised by Secretary of Defense Donald Rumsfeld, Hamdan was later deemed eligible for trial by military commission.  Hamdan instituted habeas and mandamus proceedings against Secretary Rumsfeld, claiming that Congress did not authorize military tribunals and, in the alternative, having authorized tribunals the procedures adopted for those tribunals violate basic guarantees of justice including the right to see evidence against a defendant.

Issue:  Does the President have inherent authority to convene military tribunals during times of war?  Did Congress authorize military tribunals such as the one proposed for Petitioner Hamdan?  If Congress did authorize tribunals, do the procedures for those tribunals comport with domestic and international law?

Holding:  No, Congress did not authorize military tribunals, either through the Uniform Code of Military Justice (UCMJ) or the Authorization for use of Military Force (AMF).  However, the statutes did not directly address the authority of the President to convene military tribunals.  Tribunals however constituted and on whatever authority, must comply with domestic and international law.  The tribunals envisioned here do not meet that standard and are thus impermissible.

Reasoning:  Justice Stevens, writing for the Court in part and writing for the plurality in part, first dealt with the Government’s motion to dismiss on the basis of jurisdiction and the Detainee treatment act.  The Court determined that the statute did not apply to cases pending at the time of adoption, and thus had no bearing on this case.  Next, the Court dismissed claims that judicial intervention was improper, distinguishing the instant case from cases in which the Court declined to intervene in proceedings undertaken as part of an established process (such as court martial).  Justice Stevens then determined that Congress had not authorized military commissions.  At most, he concluded, the acts in question acknowledge Presidential authority to convene commissions consistent with federal law and the laws of war.  The commissions, as constituted, cannot proceed as they violate the Geneva conventions and the UCMJ.  First, the commissions would have excluded access to evidence against Hamdan to both him and his counsel.  Next, the court determined that the case was ripe for review despite a final determination, as his rights had already been violated when he was effectively excluded from his own trial.  The Court concluded that the Government had failed to demonstrate a reasonable basis for departure from established procedures under the UCMJ, including evidentiary standards and the right to be present.  The commission procedures also violated the Geneva conventions by failing to make use of an established procedure for such a tribunal.  Hamdan was afforded some minimal protections by the conventions, notwithstanding the fact that he was engaged in war on behalf of Al Qaeda and not a signatory to the conventions.  Finally, while Justice Stevens recognized the potential dangers a person like Hamdan presented, he concluded that the executive must still comply with the prevailing rule of law in seeking to try him.

Justice Stevens wrote on behalf of the plurality in two separate parts of his opinion.  First, Justice Stevens concluded that Hamdan had not been charged with any offense that occurring in, and during, the period of war as required for a military commission.  Next, Justice Stevens also concluded that under the Geneva conventions Hamdan was entitled to see evidence against him as one of a class of guarantees afforded all civilized peoples.

Dissent:  Justice Breyer, joined by Justices Ginsburg, Kennedy, and Souter, concurred in the judgment and wrote separately to emphasize that no emergency existed to justify executive refusal to consult with Congress in establishing tribunals in concert with democratically elected representatives.  Justice Kennedy filed a separate opinion, concurring in part and dissenting in part, and highlighted what he believed to be potential threats to separation of powers in the case.  He agreed that the commissions exceeded Congressional authorization as they were not regularly authorized courts and did not have minimum safeguards.  Justice Scalia dissented, arguing that the Court did not have jurisdiction to take the case and focused extensively on the DTA.  In his opinion, statutes should be presumed to apply to pending cases unless there is evidence to the contrary, and relying on items in the Congressional record- as the majority did- is inherently flawed.  Justice Scalia also cautioned against extending habeas corpus to prisoners outside the territory of the United States, and warned against a potential flood of future cases during the ongoing war.  Justice Thomas filed a separate dissent, agreeing with the jurisdictional analysis of Justice Scalia, and writing to emphasize disagreement with the majority over the nature of the charges against Hamdan.  He questioned the wisdom of second-guessing executive determinations, and pointed out that the nature of the commissions in question would necessarily be ad hoc based on the circumstances of the cases presented rather than adhering to any established procedure.  Finally, Justice Alito also dissented, focusing on the nature of the commissions and his belief that they were properly constituted.  In his opinion, the failure to maintain regular sessions or adopt existing procedures was not dispositive of the issue, and the inherent authority to create such commissions long recognized by the executive and approved of by the Court should be applied to the circumstances of this case.

Conclusion:  While Congress did not authorize military commissions, they left open the possibility of executive formation.  However, a fractured Court determined that the commissions in question violated other provisions of federal law and the Geneva conventions, and were thus improper.