Hamdan v. Rumsfeld (05-184)

July 4, 2006 Supreme Court Update

Greetings, Court fans!
It came as no surprise that the Court reserved what might be its most important and controversial decision of the year, Hamdan v. Rumsfeld (05-184), for its last day of the Term. Composed of six opinions, the decision nears 200 pages, so forgive (if you can) the length of this Update and our delay in getting it to you. For those who don't have the time or inclination, the short version is this: A five-justice majority, led by Justice Stevens, found that the Court had jurisdiction to decide the case because (1) the Detainee Treatment Act ("DTA"), which eliminated jurisdiction over habeas petitions filed by Guantanamo Bay detainees, does not apply to petitions already pending when the DTA was enacted, and (2) Councilman abstention (a doctrine whereby the courts avoid interfering in proceedings of courts-martial involving U.S. military personnel) also does not apply. On the merits, the Court found that the military commissions convened to try Hamdan and other Guantanamo Bay prisoners could not proceed because the President's power to establish such commissions is contingent upon compliance with the Uniform Code of Military Justice ("UCMJ"), which imposes its own requirements and incorporates others from international law, such as the Geneva Conventions. The Guantanamo commissions fail to comply with either the UCMJ or Common Article 3 of the Geneva Convention, particularly because they do not, to the extent practicable, mirror the structure and procedures applied to courts-martial. A four-Justice plurality (less Kennedy, who would not have addressed these issues), also found that Hamdan could not be tried by a military commission in any event because (1) he did not engage in any overt act on the battlefield after 9/11 (the beginning of hostilities), (2) is not being held and tried in the theatre of war (but instead in Guantanamo Bay years after capture, far away from the exigencies of battle), and (3) his alleged offense, conspiracy, is not a violation of the law of war and therefore not triable even by a proper law-of-war military commission. The same plurality further found that the military commissions violated the UCMJ and international law because of specific procedural failings, most glaring among them that the defendant (and even his paid civilian lawyer) may be excluded from the proceedings and that he may be found guilty based on evidence he has never seen. Thomas, Scalia and Alito dissented, and the Chief took no part in the decision because he sat on the D.C. Circuit panel that upheld the validity of the commissions.
Now, for those who want all the nitty-gritty, here it is: Salim Ahmed Hamdan was captured by militia forces in Afghanistan in November 2001, turned over to the United States and ultimately transported to Guantanamo Bay. About two years later, the President deemed him eligible for trial by military commission and he was later charged with one count of conspiracy "to commit . . . offenses triable by military commission." According to the charges, Hamdan, allegedly bin Laden's body guard and driver, committed certain overt acts in furtherance of the conspiracy, including transporting weapons used by al Qaeda members and receiving weapons training at an al Qaeda training camp. The military commission that was to try Hamdan was established by President Bush pursuant to a November 13, 2001 Executive Order governing the "Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism." The Executive Order provides that if the President determines there is "reason to believe" that an individual is or was a member of al Qaeda or has engaged in terrorist activities aimed at or harmful to the United States, the individual shall be tried by military commission. The commissions were set up under a subsequent order, Commission Order No. 1, providing that each military commission shall have a presiding officer (a military lawyer) to rule on questions of law and evidentiary issues and at least three other voting members (commissioned officers). The accused is entitled to appointed military counsel and may hire civilian counsel, so long as the attorney has SECRET security clearance (a pool of lawyers that must just runneth over . . . .). The accused is entitled to a copy of the charges against him and a presumption of innocence. But, the accused and his civilian counsel may be excluded from learning the evidence presented against him if the presiding officer decides to "close" the hearing. (Military counsel is permitted to attend the hearings, but may be precluded from revealing any information about what happened there to his client.) Any evidence may be admitted if the presiding officer feels it would have "probative value to a reasonable person" –including hearsay testimony, evidence obtained through coercion, and unsworn written statements – and the accused may be denied access to the evidence if it is deemed "protected information" so long as the presiding officer determines that admission will not deny the accused a "full and fair trial." If the presiding officer determines that evidence should not be admitted, that decision may be overturned by a vote of 2 out of 3 of the commission's voting members. Conviction and sentencing is by majority vote unless death is imposed, which requires unanimity. The accused may then appeal to a three-member review panel composed of military officers, one of whom must have experience as a judge.
Hamdan filed a habeas petition challenging the use of a military commission to try him and the commission's specific procedures. The District Court stayed the commission's proceedings, finding that the President's authority to establish military commissions extends only to offenses triable by military commission under the law of war, including protections in the Third Geneva Convention for prisoners of war ("POWs"), and that Hamdan is entitled to these protections until adjudged not to be a POW. Further, whether or not Hamdan is a POW, the commission still would be invalid because its procedures (including the power to convict the accused upon unseen evidence) violate the UCMJ and Common Article 3 of the Third Geneva Convention (which offers some protections to non-"traditional" combatants). The D.C. Circuit (including then-Judge Roberts) reversed, finding that the Geneva Conventions are not judicially enforceable by individuals, but instead were intended to be enforced by signatory nations. Two of the judges (including Roberts) also concluded that the Convention's protections do not apply to Hamdan because the conflict with al Qaeda falls outside their scope.
Before the Court could address Hamdan's substantive claims, it had to deal with a motion to dismiss filed by the government based on the DTA and Councilman abstention. In relevant part, the DTA eliminates court jurisdiction to review any application for habeas corpus filed by a prisoner held at Guantanamo Bay (§ 1005(e)(1)). The DTA provides for limited judicial review by the D.C. Circuit of the decision that an alien is an enemy combatant (§ 1005(e)(2)), and of the final decision of a military commission (§ 1005(e)(3)), but the scope of the review is circumscribed. The DTA provides that it shall take effect on the date of enactment, and further states that the D.C. Circuit review paragraphs apply to any claim "pending on or after" the date of enactment. So, it is clear that Congress intended the review provisions in (e)(2) and (e)(3) to apply retroactively – the question is what to make of (e)(1), eliminating jurisdiction to review habeas petitions, which is not specifically mentioned in the section explicitly making other pieces of the DTA retroactive. The majority found this difference dispositive, concluding that ordinary principles of statutory construction required them to find that (e)(1) does not apply to petitions pending when the DTA was enacted because if Congress had so intended, it would have said so. The majority believed the drafting history provided further support for this view, since Congress considered a provision that would have expressly stated that section (e)(1) applied retroactively – but that language was rejected. (The majority also found helpful some floor statements rejecting application of (e)(1) to pending cases.) The majority similarly rejected the government's attempt to have the Court abstain, under Schlesinger v. Councilman (1975), from hearing the case until the military commission proceedings were complete. Councilman abstention (which has been applied in cases where U.S. military personnel seek to involve civilian courts in matters subject to court martial) is grounded in the need for military discipline and the conclusion that the military justice system functions best when not subject to regular interference by the civilian courts. Further, the military justice system is based on a balance struck by Congress between the needs of the military and fairness to the individual service member, and is a system with a multitude of structural and procedural safeguards. Neither of these considerations is present here: Hamdan is not a service member (thus, no military discipline rationale applies) and the military commissions were not the subject of considered thought and balancing by Congress, but instead the product of an Executive Order creating commissions with few of the safeguards applicable to courts-martial.
Scalia issued the dissent as to this issue, which both Alito and Thomas joined in full. (Scalia and Thomas issued the principle dissents and appeared to break up the issues between them, with Scalia addressing the jurisdictional issues and Thomas tacking the merits – a decision for which their law clerks are surely thankful. We'll be making references to all three dissenting opinions as applicable.) You probably can guess Scalia' reasoning . . . . The plain meaning of DTA § 1005(e)(1), revoking jurisdiction to review Guantanamo Bay habeas petitions, combined with language providing that the section shall be effective upon enactment, is clear and unambiguous: After the DTA's enactment, the courts have no jurisdiction to review habeas petitions, pending or otherwise. The fact that Congress did not mention section (e)(1) in the section addressing the retroactivity of the D.C. Circuit review proceedings is irrelevant. Past Court decisions demonstrate that there is a presumption against retroactively in applying jurisdiction-creating provisions, but no such presumption applies to jurisdiction-stripping provisions. Thus, under prior precedent, there was a legitimate reason why Congress would want to take extra care to ensure that (e)(2) and (e)(3) applied immediately – particularly because Suspension Clause problems might have arisen if the habeas route eliminated in (e)(1) had not been replaced immediately with an adequate alternative. "Worst of all," according to Scalia, "is the Court's reliance on the legislative history of the DTA to buttress its implausible reading. . . ." The legislative history is all over the place, with statements going each way, and all of them "were undoubtedly opportunistic and crafted solely for use in the briefs of this very litigation." The drafting history fares no better as the earlier version of the DTA that the majority relies upon was substantively different in many areas beyond the retroactivity language and thus, the change in that language could be driven by any number of reasons. Finally, the revocation of jurisdiction over pending habeas petitions poses no constitutional problems as the DTA provides an adequate substitute by permitting review of final commission decisions by the D.C. Circuit, which decisions will then be subject to review by the Court via its appellate jurisdiction. Turning to Councilman abstention, Scalia acknowledges that the facts of Councilman are not quite aligned, but believes that even stronger concerns warrant abstention here. The military necessity ground is at least as valid as in Councilman and the availability of review by the D.C. Circuit of all final commission decisions strongly weighs in favor of abstention. Finally, there are inter-branch comity considerations: the Executive's competence is at its zenith in managing a foreign war, while the judiciary's is "virtually nonexistent." A conflict between the executive and the judiciary should be avoided if at all possible under these conditions, but instead "the Court rushes headlong to meet it."
So, finally we come to the merits. A plurality (the majority, less Kennedy), found that Hamdan was not subject to trial by military commission. This piece of Stevens' opinion takes us deep into the underbrush of the history of military commissions (most of which is way outside the scope of this summary). Suffice it to say that, military commissions were not expressly authorized by the Constitution nor created by statute. They are instead a product of historical necessity and the limited jurisdiction of courts-martial earlier in the country's history. They were used in three circumstances: (1) as a substitute for civilian courts during times of martial law, until civilian courts could be reopened; (2) when the United States occupied foreign land, until a civilian government could be established; and (3) as an incident to the conduct of war to try enemy violations of the law of war. The first two categories are clearly inapplicable, leaving us with only the third as a potential justification for Hamdan's military commission. Historically, however, law-of-war commissions can only exercise jurisdiction over offenses committed in the theatre of war, during the period of conflict, and only for violations of the law of war. These limitations on the use of law-of-war commissions were incorporated in the UCMJ, which acknowledges the concurrent jurisdiction of courts-martial and military commissions regarding "offenses that by statute or by the law of war may be tried by military commissions. . . ." (The plurality found that while the DTA mentions and thus recognizes the existence of the military commissions established by the November 13 Order, it does not create or authorize those commissions, and thus, the commissions can rely only on the historical law of war for their existence.) Hamdan's alleged acts occurred almost exclusively before 9/11: He was charged with no act in the theatre of war during the period of armed conflict. Thus, he is not appropriately subject to trial by military commission under the law of war. Further, while aiding and abetting and command liability are recognized as violations of the law of war, conspiracy historically has not been so recognized. As a result, Hamdan cannot be tried by military commission. Justice Kennedy did not join the portion of Stevens' opinion relating to conspiracy, but also did not join the dissent (instead opting not to opine on the issue at all), leaving us with a 4-3 decision on this issue (query the stare decisis effect of such a ruling).
The dissenters, led by Thomas, would find Hamdan subject to trial by military commission. In Part I of Thomas's dissent (a portion not joined by Alito because he finds it unnecessary to the resolution of the case), Thomas finds that the President, as Commander in Chief, and via the powers given to him by Congress under the Authorization for the Use of Military Force ("AUMF") – which permits the President to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11" – is authorized to create military commissions and determine their scope and procedures as an incident of the conduct of war. The President is at the height of his power when acting as Commander in Chief with the backing of Congress, and the courts owe deference to his judgments. "Second-guessing" by the Court in such circumstances is inappropriate. In Part II (joined by Alito, for the most part), Thomas goes on to find that Hamdan is subject to trial by military commission. While agreeing with the majority as to the basic criteria for trial by military commission, Thomas would find that Hamdan clearly meets those criteria. Hamdan's charging document alleges that he was involved in overt acts between 1996 and November 2001. During this entire period, the Executive had determined that al Qaeda was at war with the United States (having made a declaration of war and attacked several US targets). The fact that the AUMF was not enacted until 2001 is of no import given that the enemy had already begun hostilities (and even if the AUMF was relevant, it was clearly backward-looking). The overt acts allegedly committed by Hamdan also occurred in lands in which al Qaeda had training camps, thus fulfilling the requirement that Hamdan engage in acts in the "theatre of war." The Executive's determinations of the geographic and temporal scope of the war are entitled to substantial deference and are backed up by overwhelming evidence here. While the dissenters acknowledge a greater role for judicial review in determining whether the conduct charged is triable by military commission, they would find that criteria met as well. Courts have never required the same level of specificity in charging documents used in military commissions as they require in civilian courts. And the majority is wrong to require that, where the elements of the offense and permissible punishments are not set out by statute or treaty, past precedent must plainly and unambiguously establish that such conduct is triable by military commission. There is no such "clear statement" rule – rather, this is a circumstance "for which a flexible, evolutionary common-law system is uniquely appropriate." The determination must be permitted to evolve to address different circumstances and different types of wars, from traditional battlefield confrontations to this new type of war, in which "a hydra-headed enemy" "lurks in the shadows conspiring to reproduce the atrocities of September 11." However, even under the majority's rule, Hamdan's conduct is suitable for trial by commission. All three dissenters would find that the conspiracy charge is triable by military commission, reciting numerous historical instances in which a conspiracy charge was so tried. (The plurality attempts to refute this precedent by explaining that such trials took place before hybrid law-of-war and martial-law commissions.) Thomas and Scalia further would find that Hamdan's charging document includes, in addition to the conspiracy charge, a charge of membership in a "war-criminal enterprise." This allegation creates an adequate and independent violation of the law of war suitable for trial by military commission. Finally, Thomas (again joined by both Scalia and Alito) explains that Hamdan's imprisonment in Guantanamo, far from the field of battle, does not alter the Executive's right to try him by military commission. "Retributive justice for heinous war crimes is as much a military necessity as the demands of military efficiency . . . ."
We now turn back to Justice Stevens, who has been rejoined by Justice Kennedy to form a true majority, on the propriety of the Guantanamo military commissions. Stevens explains that, even assuming that Hamdan was charged with an offense triable by military commission, the commissions established by President Bush lack power to proceed. Through the UCMJ, Congress limited the power of the President to create military commissions, permitting their establishment only where the commissions comply with the requirements of the UCMJ, which incorporates the law of nations (including the Geneva Conventions). These commissions woefully fail to meet those requirements. Specifically, the UCMJ permits the President to prescribe the procedures for courts-martial and military commissions, but requires that the rules and regulations (1) conform with the UCMJ's requirements; (2) conform with the procedures employed by Article III courts to the extent the President "considers practicable"; and (3) be "uniform insofar as practicable." The Court expressed no opinion as to whether the commissions violate any specific procedural requirement of the UCMJ, and found that it owes complete deference to the President as to his decision to apply the procedures of Article III courts to the commissions. The problem, for the majority, was that the procedures being applied to the commissions differed very substantially from those applied to courts-martial, and the government provided no evidence to support a finding that uniformity between the commissions and courts-martial was not practicable. Further, this uniformity (at least to the extent practicable) is consistent with past practice, in that military commissions historically employed the same procedures used by courts-martial. (The military commission was "not born of a desire to dispense a more summary form of justice . . . ; it developed, rather, as a tribunal of necessity to be employed when courts-martial lacked jurisdiction.") Thus, a majority of the Court found the commissions illegal.
The Court then went on to hold that Hamdan's military commission is also subject to the Geneva Convention's requirements. The majority did not decide whether or not the Geneva Convention is privately enforceable. Instead, it held that "compliance with the law of war" is a condition of establishing a military commission under Article 21 of the UCMJ. Therefore, the commission lacks power to proceed if it does not satisfy the requirements of the Convention, even if Hamdan cannot bring a separate action to enforce those requirements or seek damages for their violation. Second, the Court found that at least Article 3 of the Convention applies to Hamdan (overruling the D.C. Circuit's 2-1 decision in this regard). Article 2 governs war between two nations that are both signatories to the Convention. Article 3, by contrast, apples to any "conflict not of an international character occurring in the territory of one of the [signatory nations]." The D.C. Circuit found that Article 3 applied only in cases such as civil war, that were not "international" in character, and thus there was a gap between the coverage of Articles 2 and 3 through which Hamdan fell (along with all al Qaeda detainees). The Court disagreed, finding that Article 3, in context, must be read literally to mean that any dispute that is not between two nations is not "international." Thus, Article 3 applies to Hamdan because the fight against al Qaeda is not between two nations (and is therefore not "international") but was occurring within the territory of a signatory nation (Afghanistan). A plurality (minus Kennedy, who again would decline to reach the issue) then concluded that specific procedural failings in the military commissions established by President Bush violated the requirements of the UCMJ and the Convention. Chief among them: the ability to exclude the accused and his counsel from the proceedings, the ability to convict on evidence not seen or heard by the accused, and the lack of any evidentiary safeguards.
In sum, while the majority recognized that the legislature is free to authorize commissions like those created by the President, it held that the Executive cannot do so in violation of the existing requirements of the UCMJ. In his separate opinion, Justice Kennedy emphasized that this is where coordination between the branches of government is most vitally needed and the checks and balances of the system most critical. As the majority decision ends, "the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction." Similarly, Kennedy states, "Congress has not issued the Executive a ‘blank check.'" Thus, we should expect to see some serious inter-branch negotiating starting very soon.
The three dissenters (led by Thomas) wholeheartedly disagree with the majority's conclusion that the military commissions employed here are illegal. First, they find no requirement imposed by the UCMJ for procedural uniformity between military commissions and courts-martial. Instead, the UCMJ merely recognizes the President's authority to create military commissions and to the develop the procedures employed by those commissions. The requirement that the "rules and regulations made under this article shall be uniform insofar as practicable" does not apply to military commissions at all, but is an attempt to create uniformity between the three branches of the armed service. (There's even a sheepish footnote citing legislative history to support this interpretation.) Further, even assuming that the UCMJ required uniformity between military commissions and courts-martial "where practicable," the Executive has provided an adequate rationale for the disparities in procedure: "each deviation from the standard kinds of rules we have in our criminal courts was motivated by a desire to strike the balance between individual justice and the broader war policy." Second, the commissions do not lack power to proceed based on any alleged violation of the Geneva Convention. As an initial matter, the exclusive mechanism for enforcing the Convention's requirements is via "diplomatic measures" by signatory nations. The Convention cannot be enforced by private individuals – and the majority disregards the Court's holding in Johnson v. Eisentrager (1950), by finding otherwise. Moreover, this exclusive mechanism cannot be circumvented by arguing that the UCMJ incorporates the requirements of the Convention (if it did, it would also incorporate the exclusive enforcement mechanism along with the substantive provisions). Finally, the majority's conclusion that the UCMJ incorporate the requirements of Article 3 of the Geneva Convention is simply implausible: The UCMJ merely incorporates the law of war to determine who may be tried by military commission – it nowhere incorporates any substantive trial rights created by international law. Thomas and Scalia also would find that Hamdan has no rights under the Geneva Convention, deferring to the government's interpretation of Article 3 as applying only to circumstances such as civil war that occur wholly within the territorial land of one of the signatory nations. Since the conflict with al Qaeda has an international character and is occurring in various countries around the globe, Article 3 is inapplicable. Article 2 is likewise inapplicable since it applies only to conflicts between two signatory nations – a criterion al Qaeda clearly does not meet. Joined again by Alito, the three dissenters also would find that, even if Article 3 were judicially enforceable and applied to the present conflict, Hamdan would be entitled to no relief for two reasons: any claim for relief under Article 3 is unripe because Hamdan is not yet sentenced, and because his commission meets the substantive requirements of Article 3 since it is "regularly constituted" in compliance with the domestic laws of the United States, which have permitted the President to establish commissions and create their procedures throughout history. Justice Alito drafted a separate dissent in which he emphasized that the Geneva Convention's requirement that trial be by a "regularly constituted court" did not require that the procedures used therein mirror those employed by courts-martial. If such a uniformity principle had been intended, the Convention would have said so, as it did in other places. Further, military commissions cannot be said to constitute "special tribunals," since the hundreds of commissions that will be conducted under Commission Order No. 1 all will follow the same procedures. However, even if there was some limited uniformity requirement imposed by the UCMJ or the Geneva Convention, it would not make the commissions themselves unlawful: "the appropriate remedy is to proscribe the use of those [unlawful] procedures, not to outlaw the commissions." Finally, Alito would find that the commission procedures, including the provision for review by the D.C. Circuit, meets the Convention's requirement that the commissions "respect[] universally recognized fundamental rights."
If you've made it to the end, congrats. This is our longest (we promise) Update of the Term! You'll be seeing us in your inbox again shortly as we have a few more opinions to finish up.
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400