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Photo of detainees at Guantanamo Bay.
In Hamdan v. Rumsfeld, the Court ruled that the Bush administration's use of military commissions to try terrorist suspects violated the U.S. Code of Military Justice and Geneva Conventions, and were not specifically authorized by any act of Congress. Above, detainees at Guantanamo Bay.

Photo courtesy the U.S. Department of Defense
Hamdan v. Rumsfeld (2006)

In Hamdan v. Rumsfeld (2006), the Supreme Court ruled that the Bush administration's use of military commissions to try terrorist suspects violated the U.S. Code of Military Justice and Geneva Conventions, and were not specifically authorized by any act of Congress. The case began with the capture of Salim Ahmed Hamdan, a Yemenese citizen who had been the personal driver of Osama bin Laden, a wanted terrorist, on a farming project developed by bin Laden. The project, located in Afghanistan, was designed to increase regional support for bin Laden and his radical views. After the 2001 terrorist attacks in New York City and Washington, American forces invaded Afghanistan to route out bin Laden, his terrorist group Al Qaeda, and allied Taliban forces. During the American invasion, Afghani bounty hunters captured Hamdan and sold him to the U.S. military. In 2002, the U.S. military moved Hamdan to its military detainee camp at Guantanamo Bay, Cuba, and in 2004 it charged him with conspiracy to commit terrorism and made arrangements to try him before a military commission specially designed for terrorist suspects like him.

Before the commission could begin, Hamdan filed a writ of habeas corpus, or a writ challenging his detention as unlawful, in a federal district court, claiming that his detainment and the scheduled commission were both illegal. Following the Supreme Court decisions Hamdi v. Rumsfeld (2004) and Rasul v. Bush (2004), which ruled that suspected terrorists classified as "enemy combatants" have the right to challenge their detention in an impartial tribunal, the government set up a Combatant Status Review Tribunal to review "enemy combatant" challenges. This tribunal, after reviewing the facts of Hamdan's capture, ruled that he was properly classified as an "enemy combatant" and could be tried before the special commission. Hamdan then filed another habeas corpus petition to a federal court, again asserting that his scheduled commission trial was unlawful. The lower court granted Hamdan's petition, but the Federal Circuit Court for the District of Columbia reversed the decision. Hamdan appealed to the Supreme Court, which reviewed the case in 2006.

The Supreme Court, in a 5-3 decision written by Justice John Paul Stevens, ruled that the military commissions set up by the Bush administration to try "enemy combatants" violated the detained suspects' rights as provided in both the Geneva Convention and the U.S. Code of Military Justice. The Court first ruled that the Supreme Court had jurisdiction, or power, to review Hamdan's case, because the relevant congressional law defining the powers to entertain habeas corpus petitions of "enemy combatant," the Detainee Treatment Act of 2005, did not expressly preclude review by the Supreme Court. Next, the Court ruled that Congress had not authorized the president to set up special military commissions for terrorist suspects that deviated from the courts-martial or other tribunal systems already provided for under the Uniform Code of Military Justice and other relevant laws.

Third, the Court ruled that the Bush administration's commission violated the Geneva Convention and the rules of the Uniform Code of Military Justice complying with it. The Geneva Conventions, of which the United States is a bound signatory, prohibit "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." The Court argued that it was immaterial that the terrorist group Al Qaeda was not a signatory because the Convention still applied to individuals, like Hamdan, who were captured in the context of "international conflicts" within member nations of the Convention, like Afghanistan.

The Court argued that the Bush administration's military commissions had violated the U.S. Military Code of Justice and the Geneva Conventions in specific and dramatic ways. The commissions prohibited a defendant's attorney from discussing evidence with the defendant, prevented a defendant and his attorney from viewing evidence used against the defendant, deprived the defendant of his right to appeal to a U.S. court, and allowed any evidence determined to contain "probative value" to be admitted -- including unsworn testimony, hearsay, and evidence garnered through the use of torture. Thus, the Court ruled that Hamdan's scheduled "military commission ... lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949." Though narrowly decided, the Supreme Court's ruling in Hamdan v. Rumsfeld reaffirmed the Court's paramount role in and commitment to guarding personal liberties in times of even the gravest national exigencies. In nullifying the Bush administration's special military commissions for trying terrorism suspects, Hamdan left a void in the government's prosecutorial apparatus in the so-called "War on Terror." In the fall of 2006, Congress and the president sought to fill this void by enacting the Military Commission Act. Its constitutionality, however, is unclear. For example, the act strips aliens deemed "enemy combatants" of the right to challenge their detention in a court of law, and removes evidence and procedural safeguards ordinarily employed in judicial trials or in military courts-martial.

AUTHOR'S BIO
Alex McBride is a third year law student at Tulane Law School in New Orleans. He is articles editor on the TULANE LAW REVIEW and the 2005 recipient of the Ray Forrester Award in Constitutional Law. In 2007, Alex will be clerking with Judge Susan Braden on the United States Court of Federal Claims in Washington.

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