Hamdan's limits and the Military Commissions Act.

• Author: Estreicher, Samuel

On June 29, 2006, the Supreme Court by a 5-3 vote in Hamdan v. Rumsfeld (1) set aside President Bush's November 13, 2001 order (2) providing for trial by military commission of non-citizens believed to be associated with the al Qaeda terrorist organization and apprehended during the conflict in Afghanistan and being held in Guantanamo Bay, Cuba. In an opinion authored by Justice Stevens, the Court held that President Bush lacked congressional authorization to provide for the trial of these Guantanamo detainees by military commission and that some of the procedures contemplated for these trials contravened the Uniform Code of Military Justice ("UCMJ"). (3) Heralded by many academic observers as a signal victory for the "Rule of Law" and human rights even in wartime, Hamdan requires the President to try the Guantanamo detainees by court-martial proceedings or to seek from Congress express authorization of the use of military commissions falling short of court-martial procedures. Now, less than one year after the Court's decision, Congress has provided such authorization in the Military Commissions Act of 2006 ("MCA"). (4) Before discussing the MCA, we begin with an examination of the limits of the Court's holding in Hamdan.

1. THE LIMITS OF HAMDAN V. R UMSFELD

   Hamdan is a remarkable ruling. Use of military commissions during wartime to try military personnel or enemy combatants considered to have violated the laws of war has a long history, dating back to the Mexican War (5) and in some accounts to the Revolutionary War. (6) To our knowledge, the Court had not previously placed curbs on the President's ability to try suspected unlawful combatants by military commission. Ex parte Milligan was, of course, a case involving "a citizen in civil life, in nowise connected with the military service...." (7) The decisions from the World War II era, especially Ex parte Quirin (8) and In re Yamashita, (9) pointed in one direction (10)--that existing Articles of War legislation had authorized military commissions as an exercise of the President's common law military power, and that courts-martial provided a concurrent means for trying war criminals that did not alter the traditional role for military commissions. (11)

   Congress codified the Articles of War by enacting the UCMJ in 1950 (12) but it made no changes in the Articles dealing with military commissions or the procedures governing them. It did provide in Article 36(b) that the President's rules and regulations prescribing procedure "in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals ... shall be uniform insofar as practicable and shall be reported to Congress." (13) Despite contrary World War II precedent, (14) the Hamdan Court seized on this seemingly modest provision, the implications of which for military commissions occasioned no discussion in the relevant committee reports, (15) as establishing a "uniformity principle" contravened by Hamdan's military commission.

   With the benefit of hindsight, the President might have done a better job framing the issue for the courts. It was naturally difficult to convince the Justices of a military exigency requiring trial by military commission when Hamdan, reputed to have been Osama Bin Laden's driver in Afghanistan, was turned over to the U.S. military in November 2001, transported to Guantanamo Bay in June 2002, deemed triable by military commission for unspecified offenses in July 2003, and, only after he had brought suit seeking his release, was charged on July 13, 2004 with one count of conspiracy "to commit ... offenses triable by military commission." (16) More work also could have been done to consult with Congress so that the Justices might have been less inclined to view the President's November 13 Order as grounded in bald claims of inherent executive power rather than reflecting the exercise of a shared responsibility between the two branches.

   Even so, Congress was plainly aware of the President's Order and even after Hamdan's commission had been named, it enacted the Detainee Treatment Act of 2005 ("DTA"). (17) The DTA provides for restrictions on the treatment and interrogation of the Guantanamo detainees, requires the Secretary of Defense to report to Congress on the procedures used to determine the proper classification of these detainees, and establishes the exclusive jurisdiction of the U.S. Court of Appeals for the D.C. Circuit to review both classification determinations and final decisions of military commissions convened to try the detainees. There is a strong argument that the DTA provided sufficient authorization for the President's Order, particularly in light of the long history of the use of military commissions in wartime. Justice Jackson's observation, concurring in the Steel Seizure case, (18) would have seemed particularly apt: "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." (19) Indeed, the Government argued that the DTA both authorized the commissions and limited the Court's jurisdiction to entertain Hamdan's writ when his trial before the commission had not yet begun.

   The Court, however, was of a different view. Not only did it find no bar to its jurisdiction in the DTA, it also held the DTA to be insufficiently "specific congressional authorization" for Hamdan's military commission. (20) The DTA, we are told, "contains no language authorizing [Hamdan's] tribunal or any other at Guantanamo Bay"; (21) "'recognizes' the existence of the Guantanamo Bay commissions in the weakest sense" of merely "referenc[ing] some of the military orders governing them and creat[ing] limited judicial review of their 'final decision(s)'"; (22) and, at most, "acknowledge[s] a general Presidential authority to convene military commissions in circumstances where justified under the 'Constitution and laws,' including the law of war." (23) No authority was given for the Court's rather demanding "clear statement" requirement--that Congress, in essence, must state affirmatively, "we authorize" or "we approve" the use of military commissions for the particular conflict (and presumably with the particular procedures specified by the President).

   Justice Stevens' opinion has six substantive parts, all of which were joined by Justices Souter, Ginsburg and Breyer. Justice Kennedy provided a key fifth vote, joining Justice Stevens's opinion in all but Parts V and VI-D-iv. (24) For ease of exposition, we set out the structure of Justice Stevens' opinion, as follows:

   * Part II. The Court denied the Government's request to dismiss for lack of jurisdiction based on the DTA.

   * Part III. The Court declined to abstain and await the outcome of ongoing military proceedings in Hamdan's case.

   * Part IV. The Court rejected the Government's argument that the DTA and Congress's 2001 Authorization for Use of Military Force ("AUMF") "to prevent any future acts of international terrorism against the United States" (25) provided sufficient authorization for the President's use of military commissions to try Guantanamo detainees (at least pursuant to the procedures specified by the President).

   * Part V. After discussing the circumstances in which military commissions have been convened in the past, a plurality of the Court stated that the conspiracy charge leveled against Hamdan does not state a violation of the "law of war" (which delimits the jurisdiction of military commissions under Article 21 of the UCMJ (26)).

   * Part VI. The Court held that Hamdan's military commission lacked the power to proceed because "the procedures' admitted deviation from those governing courtsmartial itself renders the commission illegal." (27) Several bases were given:

   * The Court read Article 36 of the UCMJ to establish a "uniformity principle," requiring court-martial rules to apply to military commissions, at least absent a Presidential determination that it is "impracticable" to do so. Here, the order establishing Hamdan's military commission permits exclusion of the accused from the proceeding, whereas the UCMJ normally requires a trial "in the presence of the accused." (28) Such variance from court-martial procedures was not saved by a Presidential determination of impracticability; nor did the record indicate that it would be impractical in this case to apply the rules used in courts-martial. (Part VI-C)

   * Hamdan's military commission contravened Common Article 3 of the Geneva Conventions of 1949, which was deemed implicitly incorporated in the UCMJ's authorization of military commissions for offenses in violations of the "law of war." Common Article 3 applies to the conflict with al Qaeda, which is considered a "conflict not of an international character" because it is not a conflict between states but, rather, between the United States and non-state groups occurring in the territory of a contracting power (i.e., Afghanistan). (29) Common Article 3 requires use of a "regularly constituted court" to try Hamdan; and Hamdan's military commission is not such a court. (30) "At a minimum, a military commission 'can be "regularly constituted" by the standards of our military justice system only if some practical need explains deviation from court-martial practice.' As we have explained, no such need has been demonstrated here." (31) (Part VI-D-i through iii)

   * The plurality maintained that the procedures contemplated for Hamdan's commission violate both Common Article 3 and "customary international law" principles embodied in Article 75 of Protocol I to the Geneva Conventions of 1949--most notably, in failing to guarantee that "an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him." (32) (Part VI-D-iv)

   It is clear from the foregoing that a majority of the Court...