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WASHINGTON — The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees, a rebuke to the administration and its aggressive anti-terror policies.
Justice John Paul Stevens wrote the opinion, which said the proposed trials were illegal under U.S. law and Geneva conventions.
The case focused on Salim Ahmed Hamdan, a Yemeni who worked as a body guard and driver for Usama bin Laden. Hamdan, 36, has spent four years in the U.S. prison at Guantanamo...
(Slip Opinion) OCTOBER TERM, 2005 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is
issued. The syllabus constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the convenience
of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S.
321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT
No. 05–184. Argued March 28, 2006—Decided June 29, 2006
Pursuant to Congress’ Joint Resolution authorizing the President to
“use all necessary and appropriate force against those nations, or-
ganizations, or persons he determines planned, authorized, commit- ted or
aided” the September 11, 2001, al Qaeda terrorist attacks
(AUMF), U. S. Armed Forces invaded Afghanistan. During the hos-
tilities, in 2001, militia forces captured petitioner Hamdan, a Yemeni
national, and turned him over to the U. S. military, which, in 2002,
transported him to prison in Guantanamo Bay, Cuba. Over a year later,
the President deemed Hamdan eligible for trial by military
commission for then-unspecified crimes. After another year, he was
charged with conspiracy “to commit . . . offenses triable by military
commission.” In habeas and mandamus petitions, Hamdan asserted that the
military commission lacks authority to try him because (1) neither
congressional Act nor the common law of war supports trial by this
commission for conspiracy, an offense that, Hamdan says, is not a violation
of the law of war; and (2) the procedures adopted to try him violate basic
tenets of military and international law, includ- ing the principle that a
defendant must be permitted to see and hear the evidence against him.
The District Court granted habeas relief and stayed the commis- sion’s
proceedings, concluding that the President’s authority to estab- lish
military commissions extends only to offenders or offenses triable by such
a commission under the law of war; that such law includes the Third
Geneva Convention; that Hamdan is entitled to that Con- vention’s full
protections until adjudged, under it, not to be a prisoner of war; and
that, whether or not Hamdan is properly classified a pris- oner of war, the
commission convened to try him was established in
2 HAMDAN v. RUMSFELD
Syllabus
violation of both the Uniform Code of Military Justice (UCMJ), 10
U. S. C. §801 et seq., and Common Article 3 of the Third Geneva Con-
vention because it had the power to convict based on evidence the ac- cused
would never see or hear. The D. C. Circuit reversed. Although it declined
the Government’s invitation to abstain from considering Hamdan’s challenge,
cf. Schlesinger v. Councilman, 420 U. S. 738, the appeals court ruled, on
the merits, that Hamdan was not entitled to re- lief because the Geneva
Conventions are not judicially enforceable. The court also concluded that
Ex parte Quirin, 317 U. S. 1, foreclosed any separation-of-powers
objection to the military commission’s jurisdiction, and that Hamdan’s
trial before the commission would violate neither the UCMJ nor Armed
Forces regulations implementing the Geneva Conventions.
Held: The judgment is reversed, and the case is remanded.
415 F. 3d 33, reversed and remanded.
JUSTICE STEVENS delivered the opinion of the Court, except as to
Parts V and VI–D–iv, concluding:
1. The Government’s motion to dismiss, based on the Detainee
Treatment Act of 2005 (DTA), is denied. DTA §1005(e)(1) provides that “no
court . . . shall have jurisdiction to hear or consider . . . an
application for . . . habeas corpus filed by . . . an alien detained . . .
at Guantanamo Bay.” Section 1005(h)(2) provides that §§1005(e)(2) and
(3)—which give the D. C. Circuit “exclusive” jurisdiction to review the
final decisions of, respectively, combatant status review tribunals
and military commissions—“shall apply with respect to any claim whose
review is . . . pending on” the DTA’s effective date, as was Hamdan’s
case. The Government’s argument that §§1005(e)(1) and
(h) repeal this Court’s jurisdiction to review the decision below is re-
butted by ordinary principles of statutory construction. A negative
inference may be drawn from Congress’ failure to include §1005(e)(1) within
the scope of §1005(h)(2). Cf., e.g., Lindh v. Murphy, 521 U. S.
320, 330. “If . . . Congress was reasonably concerned to ensure that
[§§1005(e)(2) and (3)] be applied to pending cases, it should have been
just as concerned about [§1005(e)(1)], unless it had the different in- tent
that the latter [section] not be applied to the general run of pending
cases.” Id., at 329. If anything, the evidence of deliberate omission
is stronger here than it was in Lindh. The legislative his- tory shows
that Congress not only considered the respective temporal reaches of
§§1005(e)(1), (2), and (3) together at every stage, but omit- ted paragraph
(1) from its directive only after having rejected earlier proposed versions
of the statute that would have included what is now paragraph (1) within
that directive’s scope. Congress’ rejection of the very language that
would have achieved the result the Gov- ernment urges weighs heavily
against the Government’s interpreta-
Cite as: 548 U. S. ____ (2006) 3
Syllabus
tion. See Doe v. Chao, 540 U. S. 614, 621–623. Pp. 7–20.
2. The Government argues unpersuasively that abstention is ap- propriate
under Councilman, which concluded that, as a matter of comity, federal
courts should normally abstain from intervening in pending courts-martial
against service members, see 420 U. S., at
740. Neither of the comity considerations Councilman identified
weighs in favor of abstention here. First, the assertion that military
discipline and, therefore, the Armed Forces’ efficient operation, are best
served if the military justice system acts without regular inter- ference
from civilian courts, see id., at 752, is inapt because Hamdan is not a
service member. Second, the view that federal courts should respect the
balance Congress struck when it created “an integrated system of military
courts and review procedures” is inapposite, since the tribunal convened to
try Hamdan is not part of that integrated system. Rather than Councilman,
the most relevant precedent is Ex parte Quirin, where the Court, far from
abstaining pending the con- clusion of ongoing military proceedings,
expedited its review because of (1) the public importance of the questions
raised, (2) the Court’s duty, in both peace and war, to preserve
the constitutional safe- guards of civil liberty, and (3) the public
interest in a decision on those questions without delay, 317 U. S, at 19.
The Government has identified no countervailing interest that would permit
federal courts to depart from their general duty to exercise the
jurisdiction Con- gress has conferred on them. Pp. 20–25.
3. The military commission at issue is not expressly authorized by any
congressional Act. Quirin held that Congress had, through Arti- cle of
War 15, sanctioned the use of military commissions to try of- fenders or
offenses against the law of war. 317 U. S., at 28. UCMJ Art. 21, which
is substantially identical to the old Art. 15, reads: “The jurisdiction
[of] courts-martial shall not be construed as depriving military
commissions . . . of concurrent jurisdiction in respect of of- fenders or
offenses that by statute or by the law of war may be tried by such . . .
commissions.” 10 U. S. C. §821. Contrary to the Gov- ernment’s
assertion, even Quirin did not view that authorization as a sweeping
mandate for the President to invoke military commissions whenever he deems
them necessary. Rather, Quirin recognized that Congress had simply
preserved what power, under the Constitution and the common law of war,
the President already had to convene military commissions—with the express
condition that he and those under his command comply with the law of war.
See 317 U. S., at
28–29. Neither the AUMF nor the DTA can be read to provide spe- cific,
overriding authorization for the commission convened to try Hamdan.
Assuming the AUMF activated the President’s war powers, see Hamdi v.
Rumsfeld, 542 U. S. 507, and that those powers include
4 HAMDAN v. RUMSFELD
Syllabus
authority to convene military commissions in appropriate circum-
stances, see, e.g., id., at 518, there is nothing in the AUMF’s text or
leg- islative history even hinting that Congress intended to expand or
alter the authorization set forth in UCMJ Art. 21. Cf. Ex parte Yerger,
8
Wall. 85, 105. Likewise, the DTA cannot be read to authorize this
commission. Although the DTA, unlike either Art. 21 or the AUMF, was
enacted after the President convened Hamdan’s commission, it contains no
language authorizing that tribunal or any other at Guan- tanamo Bay.
Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general
Presidential authority to convene military commissions in circumstances
where justified under the Constitution and laws, including the law of war.
Absent a more specific congres- sional authorization, this Court’s task
is, as it was in Quirin, to de- cide whether Hamdan’s military
commission is so justified. Pp. 25–
30.
4. The military commission at issue lacks the power to proceed be- cause
its structure and procedures violate both the UCMJ and the four Geneva
Conventions signed in 1949. Pp. 49–72.
(a) The commission’s procedures, set forth in Commission Order No. 1,
provide, among other things, that an accused and his civilian counsel may
be excluded from, and precluded from ever learning what evidence was
presented during, any part of the proceeding the official who appointed the
commission or the presiding officer decides to “close.” Grounds for
closure include the protection of classified in- formation, the physical
safety of participants and witnesses, the pro- tection of intelligence and
law enforcement sources, methods, or ac- tivities, and “other national
security interests.” Appointed military defense counsel must be privy to
these closed sessions, but may, at the presiding officer’s discretion, be
forbidden to reveal to the client what took place therein. Another
striking feature is that the rules governing Hamdan’s commission permit
the admission of any evi- dence that, in the presiding officer’s opinion,
would have probative value to a reasonable person. Moreover, the accused
and his civilian counsel may be denied access to classified and other
“protected in- formation,” so long as the presiding officer concludes that
the evi- dence is “probative” and that its admission without the
accused’s knowledge would not result in the denial of a full and fair
trial. Pp.
49–52.
(b) The Government objects to this Court’s consideration of a pro- cedural
challenge at this stage on the grounds, inter alia, that Ham- dan will be
able to raise such a challenge following a final decision under the DTA,
and that there is no basis to presume, before the trial has even commenced,
that it will not be conducted in good faith and according to law. These
contentions are unsound. First, because
Cite as: 548 U. S. ____ (2006) 5
Syllabus
Hamdan apparently is not subject to the death penalty (at least as
matters now stand) and may receive a prison sentence shorter than
10 years, he has no automatic right to federal-court review of the
commission’s “final decision” under DTA §1005(e)(3). Second, there is a
basis to presume that the procedures employed during Hamdan’s trial will
violate the law: He will be, and indeed already has been, ex- cluded from
his own trial. Thus, review of the procedures in advance of a “final
decision” is appropriate. Pp. 52–53.
(c) Because UCMJ Article 36 has not been complied with here, the rules
specified for Hamdan’s commission trial are illegal. The procedures
governing such trials historically have been the same as those governing
courts-martial. Although this uniformity principle is not inflexible and
does not preclude all departures from courts- martial procedures,
any such departure must be tailored to the exi- gency that necessitates
it. That understanding is reflected in Art.
36(b), which provides that the procedural rules the President prom-
ulgates for courts-martial and military commissions alike must be
“uniform insofar as practicable,” 10 U. S. C. §836(b). The “practica-
bility” determination the President has made is insufficient to justify
variances from the procedures governing courts-martial. The Presi- dent
here has determined, pursuant to the requirement of Art. 36(a), that it is
impracticable to apply the rules and principles of law that govern “the
trial of criminal cases in the United States district courts” to
Hamdan’s commission. The President has not, however, made a similar
official determination that it is impracticable to apply the rules for
courts-martial. And even if subsection (b)’s require- ments could be
satisfied without an official practicability determina- tion, that
subsection’s requirements are not satisfied here. Nothing in the record
demonstrates that it would be impracticable to apply court-martial rules
here. There is no suggestion, e.g., of any logistical difficulty in
securing properly sworn and authenticated evidence or in applying the usual
principles of relevance and admissibility. It is not evident why the
danger posed by international terrorism, consider- able though it is,
should require, in the case of Hamdan’s trial, any variance from the
courts-martial rules. The absence of any showing of impracticability is
particularly disturbing when considered in light of the clear and admitted
failure to apply one of the most fundamen- tal protections afforded not
just by the Manual for Courts-Martial but also by the UCMJ itself: The
right to be present. See 10 U. S. C. A.
§839(c). Because the jettisoning of so basic a right cannot lightly be
excused as “practicable,” the courts-martial rules must apply. Since it
is undisputed that Commission Order No. 1 deviates in many sig- nificant
respects from those rules, it necessarily violates Art. 36(b). Pp. 53–62.
6 HAMDAN v. RUMSFELD
Syllabus
(d) The procedures adopted to try Hamdan also violate the Ge- neva
Conventions. The D. C. Circuit dismissed Hamdan’s challenge in this regard
on the grounds, inter alia, that the Conventions are not judicially
enforceable and that, in any event, Hamdan is not entitled to their
protections. Neither of these grounds is persuasive. Pp. 62–
68.
(i) The appeals court relied on a statement in Johnson v. Eisen- trager,
339 U. S. 763, 789, n. 14, suggesting that this Court lacked power even
to consider the merits of a Convention argument because the political and
military authorities had sole responsibility for ob- serving and enforcing
prisoners’ rights under the Convention. How- ever, Eisentrager does not
control here because, regardless of the na- ture of the rights conferred on
Hamdan, cf. United States v. Rauscher,
119 U. S. 407, they are indisputably part of the law of war,
see Hamdi, 542 U. S., at 520–521, compliance with which is the condition
upon which UCMJ Art. 21 authority is granted. Pp. 63–65.
(ii) Alternatively, the appeals court agreed with the Govern- ment that
the Conventions do not apply because Hamdan was cap- tured during the war
with al Qaeda, which is not a Convention signa- tory, and that conflict
is distinct from the war with signatory Afghanistan. The Court need
not decide the merits of this argument because there is at least one
provision of the Geneva Conventions that applies here even if the relevant
conflict is not between signato- ries. Common Article 3, which appears in
all four Conventions, pro- vides that, in a “conflict not of an
international character occurring in the territory of one of the High
Contracting Parties [i.e., signatories], each Party to the conflict shall
be bound to apply, as a minimum,” certain provisions protecting “[p]ersons
. . . placed hors de combat by
. . . detention,” including a prohibition on “the passing of sentences
. . . without previous judgment . . . by a regularly constituted court af-
fording all the judicial guarantees . . . recognized as indispensable by
civilized peoples.” The D. C. Circuit ruled Common Article 3 inappli-
cable to Hamdan because the conflict with al Qaeda is international in
scope and thus not a “conflict not of an international character. ” That
reasoning is erroneous. That the quoted phrase bears its literal meaning
and is used here in contradistinction to a conflict between nations is
demonstrated by Common Article 2, which limits its own application to any
armed conflict between signatories and provides that signatories must
abide by all terms of the Conventions even if another party to the
conflict is a nonsignatory, so long as the nonsig- natory “accepts and
applies” those terms. Common Article 3, by con- trast, affords some
minimal protection, falling short of full protection under the Conventions,
to individuals associated with neither a sig- natory nor even a
nonsignatory who are involved in a conflict “in the
Cite as: 548 U. S. ____ (2006) 7
Syllabus
territory of” a signatory. The latter kind of conflict does not involve a
clash between nations (whether signatories or not). Pp. 65–68.
(iii) While Common Article 3 does not define its “regularly con- stituted
court” phrase, other sources define the words to mean an
“ordinary military cour[t]” that is “established and organized in ac-
cordance with the laws and procedures already in force in a country.” The
regular military courts in our system are the courts-martial es- tablished
by congressional statute. At a minimum, a military com- mission can be
“regularly constituted” only if some practical need ex- plains deviations
from court-martial practice. No such need has been demonstrated here. Pp.
69–70.
(iv) Common Article 3’s requirements are general, crafted to accommodate a
wide variety of legal systems, but they are require- ments nonetheless.
The commission convened to try Hamdan does not meet those requirements. P.
72.
(d) Even assuming that Hamden is a dangerous individual who would cause
great harm or death to innocent civilians given the op- portunity, the
Executive nevertheless must comply with the prevail- ing rule of law in
undertaking to try him and subject him to criminal punishment. P. 72.
JUSTICE STEVENS, joined by JUSTICE SOUTER, JUSTICE GINSBURG, and
JUSTICE BREYER, concluded in Parts V and VI–D–iv:
1. The Government has not charged Hamdan with an “offense . . . that by
the law of war may be tried by military commission,” 10
U. S. C. §821. Of the three sorts of military commissions used his-
torically, the law-of-war type used in Quirin and other cases is the
only model available to try Hamdan. Among the preconditions, in-
corporated in Article of War 15 and, later, UCMJ Art. 21, for such a
tribunal’s exercise of jurisdiction are, inter alia, that it must be lim-
ited to trying offenses committed within the convening commander’s field of
command, i.e., within the theater of war, and that the offense charged must
have been committed during, not before or after, the war. Here, Hamdan is
not alleged to have committed any overt act in a theater of war or on any
specified date after September 11, 2001. More importantly, the offense
alleged is not triable by law-of-war military commission. Although the
common law of war may render triable by military commission certain
offenses not defined by stat- ute, Quirin, 317 U. S., at 30, the precedent
for doing so with respect to a particular offense must be plain and
unambiguous, cf., e.g., Lov- ing v. United States, 517 U. S. 748, 771.
That burden is far from satis- fied here. The crime of “conspiracy” has
rarely if ever been tried as such in this country by any law-of-war
military commission not exer- cising some other form of jurisdiction, and
does not appear in either the Geneva Conventions or the Hague
Conventions—the major trea-
8 HAMDAN v. RUMSFELD
Syllabus
ties on the law of war. Moreover, that conspiracy is not a recognized
violation of the law of war is confirmed by other international
sources, including, e.g., the International Military Tribunal at Nur-
emberg, which pointedly refused to recognize conspiracy to commit war
crimes as such a violation. Because the conspiracy charge does not
support the commission’s jurisdiction, the commission lacks au- thority to
try Hamdan. Pp. 30–49.
2. The phrase “all the guarantees . . . recognized as indispensable by
civilized peoples” in Common Article 3 of the Geneva Conventions is not
defined, but it must be understood to incorporate at least the barest of
the trial protections recognized by customary international law. The
procedures adopted to try Hamdan deviate from those gov- erning
courts-martial in ways not justified by practical need, and thus fail to
afford the requisite guarantees. Moreover, various provi- sions of
Commission Order No. 1 dispense with the principles, which are indisputably
part of customary international law, that an accused must, absent
disruptive conduct or consent, be present for his trial and must be privy
to the evidence against him. Pp. 70–72.
JUSTICE KENNEDY, agreeing that Hamdan’s military commission is
unauthorized under the Uniform Code of Military Justice, 10 U. S. C.
§§836 and 821, and the Geneva Conventions, concluded that there is
therefore no need to decide whether Common Article 3 of the Conven- tions
requires that the accused have the right to be present at all stages of a
criminal trial or to address the validity of the conspiracy charge against
Hamdan. Pp. 17–19.
STEVENS, J., announced the judgment of the Court and delivered the opinion
of the Court with respect to Parts I through IV, VI through VI– D–iii,
VI–D–v, and VII, in which KENNEDY, SOUTER, GINSBURG, and BREYER,
JJ., joined, and an opinion with respect to Parts V and VI–D– iv, in which
SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a
concurring opinion, in which KENNEDY, SOUTER, and GINSBURG, JJ., joined.
KENNEDY, J., filed an opinion concurring in part, in which SOUTER,
GINSBURG, and BREYER, JJ., joined as to Parts I and II. SCALIA, J., filed
a dissenting opinion, in which THOMAS and ALITO, JJ., joined. THOMAS, J.,
filed a dissenting opinion, in which SCALIA, J., joined, and in which
ALITO, J., joined as to all but Parts I, II–C–1, and III–B–2. ALITO, J.,
filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined as to
Parts I through III. ROBERTS, C. J., took no part in the consideration
or decision of the case.
Cite as: 548 U. S. ____ (2006) 1
Opinion of STEVENS, J.
NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports. Readers are
requested to notify the Reporter of Decisions, Supreme Court of the United
States, Wash- ington, D. C. 20543, of any typographical or other formal
errors, in order that corrections may be made before the preliminary print
goes to press.
Hey SCOTUS Liberal Tyrants. Like this never happened.
Buzzy's been cooking up the weebily sauce for lunches.
