Hamdan v Rumsfeld

The Court reversed the judgment of the appeals Court, which had ruled that "Hamdan was not entitled to relief because the Geneva Conventions are not judicially enforceable" and that "Hamdan’s trial before the commission would violate neither the [Uniform Code of Military Justice] nor Armed Forces regulations implementing the Geneva Conventions." Justice Stevens wrote the majority opinion, joined by Justices Kennedy, Souter, Ginsberg and Breyer.

1. The Government’s argument [that the Supreme Court does not have standing to review the case] is rebutted by ordinary principles of statutory construction... Congress’ rejection of the very language that would have achieved the result the Government urges weighs heavily against the Government’s interpretation...

2. The Government has identified no countervailing interest that would permit federal courts to depart from their general duty to exercise the jurisdiction Congress has conferred on them...

3. The military commission at issue is not expressly authorized by any congressional Act...

4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949.

Justice Stevens was joined by Justices Souter, Ginsberg and Breyer in noting that the Government had not charged Hamdan with an "offense . . . that by the law of war may be tried by military commission."

Justice Scalia filed a dissenting opinion, joned by Justices Thomas and Alito. Chief Justice Roberts did not take part in the case.

Justice Stevens cites Ex parte Milligan as explanation of the separation of powers between the legislative and executive branches, in regards to war (emphasis added):

The power to make the necessary laws is in Con- gress; the power to execute in the President... But neither can the President, in war more than in peace, intrude upon the proper authority of Con- gress, nor Congress upon the proper authority of the President... Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians...

The Administration's arguments rested on Quirin, where the Supreme Court "sanctioned" President Roosevelt’s use of "a tribunal to try Nazi saboteurs captured on American soil during the War." However, "Guantanamo Bay is neither enemy-occupied territory nor under martial law."

The Court points out that the charges against Hamdan cover the period of 1996 to November 2001, noting (emphasis added):

All but two months of that more than 5-year-long period preceded the attacks of September 11, 2001, and the enactment of the AUMF-- the Act of Congress on which the Government relies for exercise of its war powers and thus for its authority to convene military commissions.³¹ Neither the purported agreement with Osama bin Laden and others to commit war crimes, nor a single overt act, is alleged to have occurred in a theater of war or on any specified date after September 11, 2001. [strong]None of the overt acts that Hamdan is alleged to have committed violates the law of war.[/strong]...

[In addition], [t]he crime of “conspiracy” has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction,³⁵ and does not appear in either the Geneva Conventions or the Hague Conventions--the major treaties on the law of war.³⁶...

If anything, Quirin supports Hamdan’s argument that conspiracy is not a violation of the law of war.

Stevens counters the argument by Thomas that "conspiracy is a recognized violation of the law of war" by citing from the same case cited by Thomas. Furthermore:

The charge’s shortcomings are not merely formal, but are indicative of a broader inability on the Executive’s part here to satisfy the most basic precondition--at least in the absence of specific congressional authorization--for establishment of military commissions: military necessity.

Although much of the opinion deals with whether or not the Government has charged Hamdan with a war crime, Stevens writes that "[w]hether or not the Government has charged Hamdan with an offense against the law of war cognizable by military commission, the commission lacks power to proceed."