Tuesday's Argument in Hamdan v. RumsfeldThis post was written by Stanford Law Student Scott Reents.
Disclosure: Goldstein & Howe is co-counsel for petitioner.Petitioner Salid Ahmed Hamdan is a detainee being held at Guantanamo Bay, Cuba. He was captured in Afghanistan in November 2001 and admits to being a personal bodyguard and driver to Osama bin Laden. He was charged with conspiring to commit acts of terrorism, and was to be tried before a military commission, which is a special adjudicatory body created by Presidential order to try individuals accused of war crimes.
Before trial, Hamdan challenged the lawfulness of the military commission that was to try him, and in November 2004, the D.C. District Court enjoined the military commission proceedings as illegal under the Geneva Convention and the Uniform Code of Military Justice (UCMJ). The court of appeals for the D.C. circuit reversed, holding that military commissions had been duly authorized by Congress; that relief was unavailable under the Geneva Convention because it did not create privately enforceable rights and because it did not apply to Al Qaeda; and that the UCMJ did not preclude Hamdan's trial before military commissions.
The case deals with legality and scope of military commissions in the war on terror. While Hamdi v. Rumsfeld and Rasul v. Bush (2004) addressed the issue of the prospective detention of enemy combatants (holding that the Government had the authority to detain alleged enemy combatants in the conflict but that alleged enemy aliens held in Guantanamo Bay, Cuba, had a right to file petitions for habeas corpus to challenge the basis of their detention), this case addresses the use of military commissions to impose retrospective punishment on individuals charged with acts relating to terrorism.
As a threshold matter, respondents argue that the Court lacks jurisdiction to hear this case at all. They argue that the Detainee Treatment Act of 2005 (DTA), enacted by Congress after the Supreme Court granted certiorari in this case, preclude pre-trial review by establishing an exclusive post-trial review process for all Guantanamo detainees. In addition, the Government has argued, even absent the DTA, the Court should withhold ruling on the merits until a final decision has been reached in accordance with traditional abstention doctrine. Petitioner, on the other hand, argues that Congress specifically modified the effective date provisions of the DTA to ensure that the Supreme Court could decide this case.
On the merits, petitioner argues that the military commission that seeks to try him is not authorized to do so under U.S. law. Citing Ex Parte Quirin (1942) and In re Yamashita (1946), he argues that such authorization must be explicitly provided by Congress. Respondents dispute whether such explicit authorization is required, pointing to the historical practice of the President convening military commissions as evidence of his inherent "Commander-in-Chief" power to do so.
To the extent that Congressional authorization is required, two statutes are in play. The first is the Authorization for Use of Military Force (AUMF), passed by Congress shortly after September 11, and granting the president the authority to "to use all necessary and appropriate force" against Al Qaeda. Respondents cite Hamdi for the proposition that it is sufficient authority because "the capture, detention, and trial of unlawful combatants" (emphasis added) are incidents of war authorized by the statute. But Petitioner argues that at most, the AUMF contemplates the use of military commissions within their traditional jurisdiction, which includes trying war criminals in traditional wars (like the conflict between the United States and the Taliban) but not individuals charged with conspiracy to engage in terrorism unrelated to that conflict. Moreover, petitioner argues, to the extent commissions are authorized, they must afford the traditional procedural protections provided by military commissions in the past, which this commission fails to do.
The second statute is the UCMJ, the law creating the court martial system for the administration of justice inside the military. UCMJ provisions state that the creation of courts martial and their procedures does not in any way limit jurisdiction of military commissions nor the President's authority to prescribe their rules. Petitioners deny that this language is enough to suggest explicit authorization, while respondents say that materially similar language was held to authorize just that in Ex Part Quirin. Petitioner again argues, however, that at most, the UCMJ authorizes commissions operating within the traditional scope of jurisdiction and with the traditional procedural protections of military commissions of the past.
Toward this end, petitioner argues that the current commissions transgress traditional, statutory limitations on commissions. First, petitioner argues, the present commission have been authorized to try new crimes, defined by the President, that are not recognized by the laws of war, in particular, the crime of conspiracy to commit terrorist acts. The laws of war do not recognize even conspiracy to commit a traditional war crime, petitioner argues, pointing to decisions by international war crime tribunals after World War II. Second, petitioner asserts that terrorism by stateless entities like Al Qaeda have never before been recognized as falling within the purview of military commissions, rather than civilian criminal courts. To construe it as a war would threaten the fundamental liberties of potentially thousands of defendants accused of having ties to terrorist organizations, including even U.S. citizens. Finally, petitioner argues that the commissions do not afford him rights guaranteed under the UCMJ for all military tribunals, including the right to be present at his own trial.
Respondents dispute each of these arguments. First, respondents argue that conspiracy is indeed cognizable under the laws of war, and point to Quirin, among other cases, as an example, in which conspiracy was alleged as a war crime. Respondents further insist that petitioner is subject to the laws of war as a matter of tradition and that, in any event, Congress authorized the use of commissions against members of Al Qaeda through the AUMF. In addition, respondents argue, the determination of what is or is not a "war" is a best made by the President himself, that he has determined that the conflict with Al Qaeda is a war, and that this determination is, on the merits, correct. Finally, respondents deny that the procedural provisions of the UCMJ apply to military commissions and assert that, in any case, the UCMJ authorizes the President to deviate from the procedures afforded in other proceedings (like courts martial) to the extent he deems it necessary.
Petitioner also alleges that the Commissions violate provisions of the Geneva Conventions. First, petitioner argues that because he has asserted to be a prisoner of war from the traditional conflict between the United States and the Taliban, the Conventions require that he be provided a hearing to determine his POW status and, until then, given the same procedural protections that would be given an American serviceman alleged of war crimes (namely, trial by court martial).
Petitioner further argues that even if he is not entitled to POW status, he is still protected by common Article 3. This article requires that even non-POWs be tried before a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." A trial before a military commission would not meet this requirement because they are ad hoc rather than "regularly constituted," and because they do not provide sufficient "judicial guarantees."
Respondent denies the applicability of the Geneva Convention, arguing that treaties do not confer individually cognizable rights, and that they ought be enforced through diplomatic rather than judicial means. But even if it does confer rights, respondent argues that petitioner is not entitled to the protections of the Convention because Al Qaeda is not a party to the convention and because the Petitioner is not a POW as defined under the Convention. Finally, respondents argue that petitioner has been given an adequate hearing to determine his POW status through his enemy combatant status review and that the military commission is regularly constituted within the meaning of the Conventions.
Tuesday, March 28, 2006
Analysis: Hard day for government in Hamdan casePosted by Lyle Denniston at 01:02 PM
With Justice Antonin Scalia taking part -- and, in fact, providing the only clearcut signs of unstinting support for the federal government's arguments -- the Supreme Court on Tuesday probed deeply into the validity of the war crimes tribunals set up by President Bush, and came away looking decidedly skeptical. From all appearances during the 90-minute argument, the Court may have some difficulty fashioning an opinion, but perhaps not a result: the existing "military commission" scheme may well fail.
The Court spent comparatively little time on the issue of whether it has jurisdiction to proceed to a ruling on the merits in the case of Hamdan v. Rumsfeld (05-184), but Justices Stephen G. Breyer and David H. Souter strenuously -- and repeatedly -- advanced the point that the Court would have to find it has jurisdiction in order to avoid the very difficult constitutional question of Congress' power to abolish all forms of habeas challenge to the treatment of war-on-terrorism detainees. It was a point that seemed likely to draw the support of enough Justices to prevail.
If the Court does proceed to the merits, it appeared that there would be at least three ways that a majority could be formed to find the "military commissions" to be flawed: first, those tribunals would be using procedures that would violate federal laws, the Constitution, or an international treaty; second, a variation of the the first, the "commission" system was not set up properly in the first place, or, third, they can only try crimes that definitely are recognized under the international laws of war and that does not include the most common charge brought so far -- terrorism conspiracy. There was little exploration of ultimate arguments against the "commission" setup: the claim that the President had no power to create them on his own, without specific authorization from Congress, and, alternatively, the claim that Congress has not given him that power.
With only eight Justices participating (Chief Justice John G. Roberts, Jr., is recused), it appeared that Justice Anthony M. Kennedy might well emerge as holding the decisive vote. In a variety of ways, Kennedy seemed troubled about the legitmacy of the tribunals as presently arranged. Most of his questions seemed aimed at locating the specific deficiencies that might be found in their functioning. At one point, he suggested openly to the detainees' lawyer, Georgetown law professor Neal Katyal, that the Court might well "think there is merit" in his argument that the tribunals were not "properly constituted." In that event, Kennedy suggested, the Court would not have to get into the complex question of what kind of charges were within the tribunals' authority to try.
There were a number of comments or questions indicating that the detainees may well be able to draw the votes of Justices Breyer, Souter, Ruth Bader Ginsburg and John Paul Stevens. There was no doubt whatsoever that Justice Scalia (whose recusal had been suggested by some amici, troubled over public statements he made about detainees' rights) would line up definitely on the side of the "commissions" in their present form. Justice Samuel A. Alito, Jr., through a few questions, seemed to be sending a message that he was inclined to allow the "commissions" to go forward with trials, leaving any challenges until after convictions, if any, emerged. Justice Clarence Thomas said nothing, but he has been, in the past, the Court's most fervent supporter of presidential wartime powers.
The overall tone of the hearings seemed significantly in favor of the challenge to the new tribunals. Solicitor General Paul D. Clement, defending the tribunals, seemed more challenged than is customary for him; indeed, at times he appeared genuinely relieved at the help Justice Scalia provided for his argument. He rushed to embrace Scalia's points as if they were stronger than his own.
For the most part, the session was subdued and understated, especially given the historic dimensions of the dispute before the Court -- a major test of Executive power in the midst of vigorous presidential responses to a proclaimed "war on terrorism." But there was definitely an emotional high point, and that came when Breyer, then Souter, focused on the law that Congress passed late last year that threatened to scuttle the Hamdan case, and all other pending court cases filed by foreign nationals now being detained at Guantanamo Bay, Cuba. That law, the Detainee Treatment Act, is a court-stripping measure that raises serious questions about whether President Bush's orders dealing with captured foreign detainees will ever be fully tested in court.
The drama developed slowly, and a bit surprisingly, since the meaning of the new detainee law and its impact on the courts had not figured prominently in the hearing up to that point. But the issue clearly was looming large in the background.
In the midst of the Solicitor General's argument, the Justices were exploring the impact on the detainees' fate of the 1949 Geneva Convention, dealing with the rights of wartime prisoners. The discussion had moved into questions over how, if at all, detainees could bring their claims to protection under that Convention before a "military commission." Then Kennedy questioned whether detainees appearing before such a tribunal could challenge its very legitimacy. Clement said such a challenge could be made, but he accepted Scalia's point that this could only come after a "commission" had finished a trial -- thus barring any pre-trial challenge to the "commission" scheme itself.
Souter protested, saying he was not sure a "commission" could rule on "the very basic qauestion" of whether that entity was set up in a legal way. Breyer then jumped in, saying with fervor that the language of the Detainee Treatment Act did not support Clement's reading of it. But, Breyer went on, the contention that the Act had taken away the courts' power to decide any habeas challenge to detainees' situation would raise "the most terribly difficult question of whether Congress can constitutionally deprive the courts of jurisdiction in habeas cases" -- the suspension-of-the-writ question.
Shortly afterward, Breyer persisted, his voice tense, saying that the government's interpretation "inevitably raises the question whether the Act -- if not a suspension of habeas" was nevertheless unconstitutional if it meant that Congress had removed "the jurisdiction of the courts in any significant number of cases." Souter joined in, suggesting that the Court's interpretation of the Detainee Act should take into account the need to avoid the question of suspension of habeas. A moment later, Souter gravely observed that suspension of the writ was "just about the most significant act that the Congress of the United States can take." If, at the end of the day, Souter said, the Court must reach that constitutional issue of congressional power, "the answer may be that Congress did not intend to do it."
Soon after that exchange, Justice Kennedy sought to bring the argument back to the makeup of the "commissions." He wondered whether Clement was "going to spend any more time on the regularity" of those tribunals. Breyer chimed in to say that, if the President did have the power that Clement was claiming regarding the "commission" system, "the President can set up a commission and go to Toledo and arrest an immigrant and try him." Clement's response was to bring back the specter of 9/11. "This is a war," he said, and presidents have long had the power in wartime to order the trial of "classic war crimes."
(NOTE: Justice Scalia has said nothing publicly in response to a suggestion, by five retired admirals and generals taking part in the Hamdan case as amici, that he should not take part because of his remarks in Switzerland recently -- remarks that the retired officers said suggested he may have prejudged the case. As the Court prepared to hear the Hamdan case Tuesday, Scalia was seated, but then stood up. He did so, however, only to arrange the materials in front of him; he then sat own, silently indicating that he was participating.)
There are some good comments at the link. I'm looking for a link to the audio. I didn't listen to the argument, myself.