The Legal Status of the Guantanamo Bay Tribunals

Hamdan v. Rumsfeld

Hamdan is in U.S custody at Guantanamo Bay. After two years of detention, and after having been deemed eligible for trial by military commission, Hamdan was charged with conspiracy “to commit … offenses triable by military commission.” Hamdan filed for a writ of habeas corpus and conceded that a trial under the Uniform Code of Military Justice (UCMJ) would have been legitimate. He argues that the military commission at issue lacks the authority to try the case because (1) neither congressional Act nor the common law of war supports such trial by commission for the crime of conspiracy, which Hamdan argues is not a violation of the laws of war; and (2) because the procedures that the President adopted “violate the most basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear evidence against him.”

Justice Stevens

The President directed that anyone found to have engaged in terrorist activities harmful to the United States “shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law.” After Hamdan was declared eligible for the military tribunals he was appointed counsel, who filed demands for charges and for a speedy trial under Article 10 of the UCMJ (10 U.S.C. §810). The legal advisor to the tribunals ruled that Hamdan was not entitled to any of the protections of the UCMJ. On appeal the Government did produce charges, alleging only that Hamdan “willfully and knowingly joined an enterprise of persons who shared a common criminal purpose and conspired and agreed” to commit a list of charges, including terrorism. The document also specifically alleges that Hamdan (1) acted as Osama Bin Laden’s bodyguard and personal driver; (2) arranged transportation of and actually transported weapons for al Qaeda; (3) drove or accompanied Bin Laden to training events promoting terrorism; and (4) received weapons training at an al Qaeda camp.

The District court decided that the President’s authority to establish military tribunals only extends to “offenders or offenses triable by military [commission] under the law of war,” which includes the Geneva Convention, unless Hamdan is adjudged, in compliance with that treaty, not to be a prisoner of war. Under the Geneva Convention Hamdan is entitled to see the charges against him; therefore the commissions are wanting of authority. The Court of Appeals reversed, holding that the Geneva Conventions are not judicially enforceable.

The Government argues that the Detainee Treatment Act (DTA) expressly limited jurisdiction over detainee matters to the D.C. District court; detainee appeal matters to the D.C Circuit Court of Appeals; and generally denied jurisdiction over habeas applications. Hamdan suggests that if the Government is correct then Congress has unconstitutionally suspended the writ of habeas corpus (notice, Congress may do so when time of rebellion or public safety may demand). The Government first argues that the lack of an express provision excepting pending appeals from the denial of jurisdiction over granted and denied appeals implies a presumption, supported in case law, against jurisdiction. The Court reads the case law to imply no application of the ordinary presumption that the Act is retroactive. This is especially the case since most jurisdiction granting/stripping statutes simply change jurisdiction, so do not impair rights, and therefore do not raise a retroactivity problem. The Court also points to evidence of deliberate omission. Meanwhile the Government argues for negative inference based on the fact that the case in precedent (Lindh) grants jurisdiction while this statute strips it, which the Court rejects as unfounded. Secondly, the Government argues that this produces absurd results, granting dual jurisdiction while discussing “exclusive jurisdiction,” but the court points out that one is an appellate jurisdiction and one is not. Finally, the majority calls the dissent’s argument that this result runs contrary to the plain meaning counterfactual (citing legislative history) and a misreading of precedent.

Next, the reasons of comity that the Court accepted the idea of a courts-martial (respecting the division drawn by Congress and the benefit to military preparedness) were based on the idea, inapplicable here, that these courts-martial will vindicate constitutional rights, especially because Hamdan cannot appeal to civilian judges. This leaves the Court with Quirin as precedent, where the Court entertained habeas applications, in time of war, from German saboteurs.

Citing Ex parte Milligan the Court notes that without a basis elsewhere in the Constitution “no part of the judicial power of the country was conferred on [military commissions].” Following a discussion of the separation of powers, the Court assumes that the Authorization to Use Military Force activated the President’s wartime powers, but did not alter the status quo in the UCMJ. Military commissions have been used (1) in the context of martial law; (2) on foreign soil; and (3) in the context of the necessity to punish violations of the laws of war. From this and precedent the Court decides that for Hamdan’s charge to be legitimate the offense must have been committed during the theater of ware and “during,” not before” the conflict. Worse yet, the charge is not triable by law-of-war military commissions. The military may not define “Laws of Nations” as that would give it the power to define its own jurisdiction, and the crime of “conspiracy” is not included in that definition since intent is insufficient. First, in Quirin the Court “declined to address” whether conspiracy was triable by commission, and actually considered the completion of the act. Second, the citations for the inclusion of conspiracy in Howland do not support its inclusion. Third, where the Court ostensibly accepted the idea, it was in the context of martial law, not the laws of war. Finally, the charge of conspiracy proper was not accepted at Nuremburg. Here ends this opinions claim on majority status.

The opinion notes a divergence from the UCMJ in the admissibility of unsworn hearsay and the fact that defendant and his counsel may be barred from proceedings presenting evidence against him if that evidence is classifiable. The imposition of any penalty less than death requires only a two thirds majority. The Government objects that case law (Councilman) precluded pre-enforcement review of procedural rules; (2) Hamdan may raise any such challenge following a “final decision”; and (3) there is no basis to presume that the trial will be conducted unfairly. The Court reminds that whereas Hamdan is not subject to the death penalty he does not necessarily have the right to appeal. Second, Hamdan argues that he already has been excluded from his own trial.

Article 36 of the UCMJ requires that (a) the rules of (among others) military commissions “may not be contrary or inconsistent with this chapter”; and (b) that all rules and regulations made under it “shall be uniform insofar as practicable.” The Court reads this to require some tailoring of any departure from the UCMJ. The UCMJ requires that “all proceedings shall be made a part of the record and shall be in the presence of the accused.” Subsection (a) (above) allows deviations from the UCMJ where the President considers it practicable. Subsection (b), however does not defer to the President in the same way and thus requires an objective evaluation of practicality. This is premised on the logical move, based on the burden of objectivity, from requiring practicality to allowing deviation only for impracticality. The only reason that the President has offered is the danger of terrorism. Underlying this decision is the jettisoning of the basic right to be present at trial “whether or not that departure technically is ‘contrary or inconsistent with’ the terms of the UCMJ.”

Here begins, again, the opinion’s claim to majority status. The Court of Appeals dismissed the argument that the tribunals violate the Geneva Convention because (a) the Geneva Convention is not judicially enforceable; (b) even if it were, Hamdan would not be entitled to its protections; and (c) even if it were enforceable, and Hamdan were entitled to its protections, Councilman councils judicial abstention. As to the first argument, Johnson v. Eistrager denied Geneva protections to German nationals during WWII in China because they had failed to identify any prejudicial disparity between the Commission that tried them and that afforded American soldiers and because they could claim no protection for acts committed before their P.O.W status. Additionally, the Court (in a footnote) suggested that enforcement of the Conventions was the province of the political and military branch of government. Here, the Court overrules the Appeals Court’s decision that that footnote makes the Geneva Conventions unenforceable by the judiciary because those Conventions constitute the statutorily enforceable law of war. The Executive argued that the war with al Qaeda was distinct from the war with Afghanistan, and not covered by the Conventions as a “declared war [or] any other armed conflict which may arise between two or more of the High Contracting Parties.” In any case, the Court notes, in conflicts of an “international character,” persons taking no active role in combat (including those who have laid down their arms, or placed under detention) are provided the protections of Article Three. Here, “international in character” is used in contradistinction to conflicts between nations. Therefore, under Article Three, Hamdan is entitled to a trial by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” “Regularly constituted” courts include military tribunals. Here again ends this opinion’s claim on majority status.

My note: “guarantees which are recognized as indispensable by civilized peoples” is almost precisely the test for incorporation of a protection in the Bill of Rights into the Due Process Clause of the Fourteenth Amendment.

The opinion states that the Government does have a compelling interest in denying Hamdan access to certain sensitive information, but that it has not offered a valid reason for deviating from the UCMJ, making the military tribunals illegal, and that in any case “information used to convict a person of a crime must be disclosed to him.”

Again commences the opinion’s claim to majority status. “The commission that the President has convened to try Hamdan does not meet [the requirements of Article 3].” Note: Chief Justice Roberts had to abstain because he had previously ruled on this case.

Justice Breyer

Justices Breyer, Kennedy, Souter, and Ginsburg state that “where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger.”

Justice Kennedy

Justices Kennedy, Souter, Ginsburg and Breyer point out that military tribunals are a matter in which Congress has historically been engaged. The opinion points first to three requirements for military tribunals that Congress has set out: (1) Tribunals must conform to district-court rules insofar as the President “considers practicable”; (2) those rules may not be contrary or inconsistent with the UCMJ; and (3) those rule must be uniform “insofar as practicable.” The opinion also agrees with the majority about objective vs. presidential concepts of practicability and the fact that Article Three of the Geneva Conventions apply. The opinion replies to the dissent’s argument that the Convention’s protections are not judicially enforceable by reiterating that even if that is the case under Johnson v. Eisentrager the Conventions do make up the law of war that Congress has directed the President to follow. Meanwhile, the regularly constituted military courts are courts-martials. Military tribunals must look to the courts-martial as a benchmark and can only be regularly constituted if some practical need explains derivations from that process. The opinion then surveys the differences between a courts martial and the military tribunals, noting that power is concentrated in a single executive official who appoints judges and oversees appeals, that only three judges are required and only one must have legal training, and the creation of a review process outside that provided by Congress. Without a justification for these deviations the tribunals are not considered “regularly constituted.” The further deviation in allowing admission of all evidence that is reasonably probative and allowing the judges to see all evidence whatsoever.

Justice Scalia

Justices Scalia, Thomas, and Alito argue that the statute unambiguously revokes jurisdiction over all habeas petitions from Guantanamo Bay detainees, and that an unbroken line of cases have held that jurisdiction stripping statutes apply to pending cases. While the majority would not read the rule as “an inflexible trump,” Justice Scalia strongly believes that it was set out as a rule. The majority actually relied on this general rule that jurisdiction stripping statutes apply to pending cases in Langraf where it held that as one section of the AEDPA explicitly applied to pending cases, and another did not, since Congress had no reason to believe such a provision was necessary, a negative inference was appropriate. Scalia argues otherwise; that Congress did have reason to doubt the implied application to pending cases. The difference upon which this opinion distinguishes the case is that the Court has generally treated jurisdiction conferring statutes differently than jurisdiction stripping statutes. In any case, the Lindh reasoning should not be employed to completely circumvent the purpose of the law, which was to grant “exclusive” jurisdiction in the D.C. court.

Turning to the appeal to legislative intent, the fact that statements roundly denying the Court’s interpretation were made after the law was passed is of no consequence because such statements are not made in the context of riveting debate, but are “delivered … alone into a vast emptiness.” Scalia also points out that “floor statements made on both sides were undoubtedly opportunistic and crafted solely for use in the briefs in this very litigation” and reminding that Justice Stevens once looked to the legislative history for “general agreement,” which is undoubtedly missing here. Scalia argues that there is no reason to believe that the removal of the wording applying the law to pending cases was what motivated the rejection of an earlier bill, considering some other more fundamental differences.

Justice Scalia must then address the argument that the denial of habeas corpus violates the Suspension Clause of the Constitution (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”). He cites Johnson v. Eisntrager for the conclusion that and enemy alien outside of the sovereign territorial jurisdiction of the United States is protected under the clause. Even if they were protected “the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention does not constitute a suspension of the writ of habeas corpus” and Hamdan has not shown that the D.C. Circuit is inadequate or ineffective. A particularly striking footnote suggests that Hamdan would not be harmed by being subject to indefinite detention since he is already, under Hamdi v. Rumsfeld.

Scalia argues that Councilman’s reasoning, that the efficient operation of the Armed Forces and structural insulation from the Executive is benefited by abstaining from habeas review is furthered here. The D.C. Circuit now reviews the decisions at issue, and the fact that the review is discretionary goes to the effectiveness, not the structural insulation, of the process. To this he adds that considerations of “interbranch comity” council the Court to exercise its “equitable jurisdiction” so as to avoid direct conflict with the Executive in an area where the Executive’s competence is “maximal.”

Justice Thomas

Justice Thomas agrees with the majority that military commissions are executed in one of three ways, and that the relevant considerations are the (1) time and (2) place of the offense, (3) the status of the offender, and (4) the nature of the offense charged. For Justice Thomas the theatre of war, as defined by the President and under the Prize Cases, extends from 1996 and to all places where al Qaeda has established training camps rather than the date of the Authorization to Use Military Force. This conclusion addresses (1) and (2). As to (3), organized forces of a belligerent are not within the protection of the laws of war. Finally, the “clear-statement” rule is contrary to the historically flexible common law of war, which defined what was not to be done, but does not define what may be done. Hamdan was charged with an offense triable by a commission because the war crime was joining such a group. In the opinion of the Attorney General, “the atrocities committed by such a band do not constitute the offense, but make the reasons … why such [groups] are denounced by the laws of war.” There is then a lengthy review of such charges in history suggesting that conspiracy is an overt act.

Justice Thomas argues that the Court reads too much into the requirement that the UCMJ be “uniform insofar as practicable,” and diverges too far from the common law and text of the statute. Meanwhile, according to precedent, the Court should not set aside Hamdan’s commission “without the clear conviction” that it is in conflict with the laws of Congress. History and the text of the UCMJ have recognized differences between tribunals and the courts-martial procedures. Thre requirement for objective uniformity should be understood as a requirement that the rules of Army tribunals be uniform with the rules of Navy tribunals, as the UCMJ is generally set up to create uniformity within the branches of the armed services.

Justice Thomas finds the Presidential justification for diverging from standard procedures in speeches made by the President. He also argues that the text of the UCMJ’s requirement that the accused be present plainly only applies to courts-martial, which for my money completely misses the point of the majority’s argument, whether it is right or wrong. Thomas takes issue with the idea that Article 21 of the UCMJ sets out the laws of war, and includes the Geneva Conventions under that heading, because “Article 21 authorizes the use of military commissions; it does not purport to render judicially enforceable aspects of the law of war that are not so enforceable of their own accord.” Also, that section of the UCMJ refers to the laws of war only in the context of jurisdiction, whereas Article Three of the Geneva Conventions deals with particular procedures. Especially where the provisions of a treaty are ambiguous “the meaning attributed to treaty provisions by the Government agencies charged with their negation and enforcement is entitled to great weight.” Even granting all other points, Justice Thomas argues that the issue is not “ripe” in that the only acts that the Convention prohibits are the ‘passing of sentences…,’ ‘carrying out of executions…,’ etc. There has been no conclusion to Hamdan’s trial, and therefore no violation of the Convetion.

Granting everything else, Justice Thomas argues, the commission does “afford all judicial guarantees which are recognized as indispensable by civilized peoples,” which include right to representation, presumption of innocence, proof beyond a reasonable doubt, right to remain silent, confront witnesses, subpoena his own witnesses, generally be present at trial, and to review of conviction (by Secretary of Defense. (Some of this is incomplete, considering that I heard an interview with Hamdan’s lawyer where he said his client was entirely unaware that he had a lawyer, or that this case even existed). Justice Thomas calls these “nebulous standards,” (but consider an equally nebulous standard, the legal standard for the inclusion of rights into the Due Process Clause, incorporating rights which are “in their nature, fundamental; which belong of right to citizens of all free governments.”) Justice Thomas then implies a compelling-interest-test exception to this provision.

Justice Alito

Justice Alito agrees with a large part of the majority, up to the question of what is a “regularly constituted” court. He says this must depend on U.S. law. Justice Alito believes that this language does not, in itself, bar special tribunals, distinguishing the law by pointing out that it is meant to govern an occupying power’s trials of civilians. Nor does he believe that noncompliance with the uniformity requirement means that the tribunals are not regularly constituted, but simply invalidates that particular deviation. He also generally agrees with Justice Thomas’ evaluation of the Geneva criteria, particularly with Justice Thomas’ argument about the ripeness of Hamdan’s claim.

Revisit: If the case turns on the extent of congressional approval, and if that approval is to be measured in the AUMF, UCMJ, and various treaties, then the case turns on whether the specific and explicit limitations in the UCMJ override the (extremely) broad and ambiguous grants of authority in the AUMF, read in conjunction with the background law of treaties. Then the case is actually about whether Congress more sincerely delegated/recognized authority in meticulously calculated provisions of the UCMJ, or the blank-check of the AUMF.