The Supreme Court and the war on terrorism.

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 1:00 p.m. on Friday, March 30, 2007, by its moderator, Elizabeth Rindskopf Parker of the University of the Pacific McGeorge School of Law, who introduced the panelists: John Bellinger III of the U.S. Department of State; Sean Murphy of George Washington University School of Law; Jide Nzelibe of Northwestern University Law School; Dinah PoKempner of Human Rights Watch; and Franklin Berman of Essex Court Chambers. *


By Sean D. Murphy ([dagger])

I have been asked to "lay the table" for this panel by sketching out the basic contours of the Supreme Court's decision in Hamdan v. Rumsfeld, the ensuing enactment of the Military Commissions Act of 2006, and other recent developments.

As is well known, in the aftermath of the terrorist attacks of September 11, 2001, the United States launched a military campaign in Afghanistan against the terrorist network Al Qaeda and the de facto Afghani government of the Taliban. In the course of doing so, the United States in Afghanistan, eastern Pakistan, and elsewhere took into custody about 775 persons who were transferred to detention facilities at the U.S. naval base at Guantanamo Bay, Cuba.

As of March 2007, the Department of Defense reported that about 390 of those detainees had been released or transferred to the custody of their home country. Of the approximately 385 detainees remaining at Guantanamo, about 80 had been designated for release or transfer, pending further discussions with their home countries or pending resolution of litigation in U.S. courts. Another 235 persons remained in indefinite detention, without any expectation of either being released or prosecuted. Reportedly, some 70 to 75 persons may be placed before military commissions for trial, though at present (March 30, 2007) only four persons are indicted as a part of the current military commission process.

When these individuals were first taken into custody, the U.S. government immediately contemplated prosecuting some of them for terrorist acts. Three basic options existed for doing so: prosecution before U.S. civilian courts; prosecution before U.S. courts-martial operating under the relevant U.S. statute (the Uniform Code of Military Justice or UCMJ); (1) or prosecution before a U.S. military commission, meaning a tribunal established under the military authority of the President. By military order of November 2001, (2) President Bush chose the third option. That military order, along with a series of Department of Defense "instructions," established the framework for creation of military commissions to try those detainees selected to be prosecuted.

Salim Ahmed Hamdan is a Yemeni national who was detained in Afghanistan in November 2001. He was taken to Guantanamo and eventually charged with one count of conspiracy to commit an offense triable by a military commission, based on his connections with and support for Al Qaeda. Hamdan filed suit in U.S. federal court for a writ of habeas corpus, in part challenging the legality of the President's military commissions. In June 2006, the Supreme Court decided in Hamdan v. Rumsfeld (3) that the military commission convened to try Hamdan lacked the power to proceed because its structure and procedures violated both the UCMJ and the 1949 Geneva Conventions. (4)

According to the Court, the President does have a constitutional power to convene military commissions, but that power is shared with Congress, who may impose limitations on the exercise of the power. Although the UCMJ largely regulates the conduct of courts marital, it also imposes two important limitations on the President's power to convene military commissions. First, the military commissions should not deviate unnecessarily from the procedures by which courts martial operate; military commission procedures must be uniform with those of courts martial insofar as practical. In this case, the Court found that the procedures governing Hamdan's military commission did deviate in significant ways without justification, such as by allowing the accused to be excluded from the proceedings even in the absence of any disruptive conduct. Second, the military commissions must operate in accordance with the "laws of war," of which the 1949 Geneva Conventions are a part. Since Al Qaeda is not a state, the Court found that the conflict between the United States and Al Qaeda is an "armed conflict not of an international character," and thus falls within the scope of Common Article 3 to the 1949 Geneva Conventions. That article prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." (5) According to the Court, the Hamdan military commission was not such a court since it had not been established by Congressional statute.

In the aftermath of Hamdan, Congress acted quickly to provide statutory authorization for military commissions by enacting the Military Commissions Act (MCA) in October 2006. (6) The MCA authorizes the President to create military commissions to try "alien unlawful enemy combatants" for violations of the laws of war (not U.S. combatants and not lawful combatants). Although the statute is complicated, there are three clusters of provisions worth noting. First, most provisions address the rules by which the military commissions are to be convened and operated, both in terms of structure (e.g., each commission consists of a military judge and at least five members) and process (e.g., rules on the presumption of innocence, proof beyond a reasonable doubt, no compulsory self-incrimination, presence of the accused at all proceedings, and representation of the accused by an independent military defense counsel provided free of charge, with the option to retain civilian defense counsel).

Second, the MCA addresses the appeal process. The findings and sentence by a military commission may be reviewed by the convening authority (the Secretary of Defense or his/ her designee) and by a Court of Military Commission Review. As for review by U.S. civilian courts, the D.C. Circuit Court of Appeals is the exclusive forum for determining the validity of a final judgment rendered by a military commission, and is limited to determining whether the final decision was consistent with the MCA, the U.S. Constitution, and "the laws of the United States." Writs for habeas corpus challenging the commissions may not be filed in U.S. courts.

Third, the MCA addresses the relevance of the Geneva Conventions to the military commissions. On the one hand, the MCA asserts that the military commissions meet the requirements of Common Article 3 and sets forth a series of violations of the article as offenses for which a detainee may be tried. On the other hand, the MCA states that the President (and thus not the courts) "has the authority for...

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