Please use this blog to discuss the case.........sort out the facts.........what are the issues.........what questions do you have? What do you think they meant when they said........?
We want to use this to bring the whole group along so we can carry on a conversation about the case during Constitution Day.
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Hey Guys,
Here is a link to heat the actual oral arguments that were made to the U.S. Supreme Court on March 28th, 2006.
http://www.oyez.org/cases/2000-2009/2005/2005_05_184/argument/
Also, here is another link to a Harvard Law Review Essay by Neal Kumar Katyal. He is the counsel for Hamdan. He is the one who gave the oral argument in the case. Check it out!
http://web.ebscohost.com/ehost/pdf?vid=1&hid=6&sid=647e614a-54e6-487d-8203-7837e5c5ac53%40sessionmgr7
-John
Here are some facts in the case. Hamdan is a Yemeni national (US non-citzen). He was captured in Afghanistan in 2001 by allied forces, then handed over to the U.S. forces. In 2002 he was transported to a military detention center in Gutanamo Bay, Cuba. He was deemed an "enemy combatant" over a year later. More than two years after his incarcaration, Hamdan was charged with "conspiracy".
Subsequently, Hamdan filed writs of habeus corpus and mandamus.
These writs command that if the government has someone in detention, that the government must produce the defendant in court, and must give reasons for the defendant's detention. In other words, the government must charge the defendant with a crime.
Hamdan asserts that the military commission convened to try him lacks authority. The reasons he states are that "conspiracy" is not a triable offense under the common law of war. Also, the procedures adopted to try him, violates military and international law.
The court held that the military commission lacked authority, and the charge of "conspiracy" is not a triable offense under the common laws of war.
....more to come.
Supreme Court of the United States
Hamdan v. Rumsfeld
Part 1: Timeline
September -November 2001: Joint Resolution AUMF (Authorized Use of Military Force) was adopted in response to the 911 attacks. Subsequently, the US Military was deployed to and invaded Afghanistan. In the ensuing battle many were captured, and detained by the US military at a prison in Guantanamo Bay, Cuba
November 13, 2001: Order 13 was issued (Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism). This order vested the executive branch (Secretary of Defense) the power to appoint military commissions.
July 13, 2003: President deems Hamdan subject to Order 13 and triable by military commission.
December 2003: Military counsels appointed to Hamdan
February 2004: Hamdan’s counsels files demand for charges and a speedy trial pursuant to Article 10 of the UCMJ (Uniform Code of Military justice)
February 24 2004: Hamdan’s request was denied, ruling that he was not entitled to the protections of the UCMJ.
July 7, 2004: The military issued an order for a CSRT (Combatant Status Review Tribunal) to convene, and so decided the status of Hamdan as an ‘enemy combatant”, which warranted his continued detention at GB
July 13, 2004: Hamdan was finally charged with “conspiracy” after he commenced action in the DC District Court.
There were 13 paragraphs in the unsigned charging document. Only the final two paragraphs contain the allegations against him.
The allegations are as follows: from 2/96-11/24/01 Hamdan joined al Qaeda and conspired to commit crimes against civilians and civilian objects; murder by an unprivileged belligerent; terrorism. The final paragraph lists four overt acts: Hamdan was Osama Bin Laden’s “bodyguard and personal driver” and knew his associates were involved in terrorist attacks; he transported weapons for al Qaeda; he transported OSB to terrorist related meetings, functions, and the like; he received weapons training from al Qaeda.
November 8 2004: District Ct. for the District of Columbia grants habeas relief and stays the military commission’s proceedings. The district court held:
1. The President’s Authority to establish military commissions extends only to triable offenses under the “laws of war”, e.g. the Geneva Convention, treaties, etc.
2. The Common Article 3 of the Geneva Conventions is a part of the “law of war”.
3. Hamdan is entitled to the full protections of the Third Geneva Convention until adjudged.
4. The convening military commission is in violation of the UCMJ and Common Article 3 of the Geneva Conventions.
The relief was reversed by the Court of Appeals for the District of Columbia stating that the Geneva Conventions were not “judicially enforceable”. Also, it was decided that the Quirin precedent foreclosed any separation-of-powers objection to the military commission’s jurisdiction.
November 7, 2005: writ of certiorari granted
February 12, 2006: government files motion to dismiss cert. citing DTA (Detainee Treatment Act)
June 29, 2006: U.S Supreme Court denied motion along with the delivered opinion.
Part 2:
Dismissal of writ of certiorari:
The DTA was signed into law December 30, 2005. The government argues that pursuant to §1005, subsection (e) that the Court does not have the jurisdiction to review the case. The language in the act gives “exclusive jurisdiction” to the D.C. Cir. Ct. to review final decisions and determine the validity of military commissions’ and CSRTs’ finding in regard to the review of habeas corpus writs of detainees in GB, Cuba. This is otherwise known as “jurisdiction stripping”.
Petitioners argue this is unconstitutional on both constitutional and statutory grounds. Counsel cited numerous cases to bolster there argument. One such case is Durousseau v. United States, (The “appellate powers of this court” are not created by statute but, “given by the Constitution”) They also argued that Congress had foreclosed an avenue of appellate review which would suspend the writ of habeas corpus.
The court found it unnecessary to reach those arguments, but instead relied on statutory construction and legislative history to rebut the government’s assertions. I am still somewhat confused about how they got to their conclusions of how the language and construction of DTA worked against the government’s arguments. It all revolved around paragraph one of subsection (e) and the effective date. In any event the opinion goes on a long time, and comes to the conclusion to deny the motion. If any one has more clarity on this particular section of the opinion, I would love some feedback.
I want to correct the title to Part 2 of my last post. It should read
Part 2:
Motion to dismiss writ of certiorari-Denied
Part 3: Abstention
The doctrine of abstention is the staying of the exercise of federal jurisdiction in a case that involves a question of state law or policy which the federal court prefers to have resolved by a state court or agency. The government argued that the Court should abstain from exercising any jurisdiction over the military commissions, at least until the military commissions made their final decisions. The government cited Councilman as their primary authority. In Councilman there were two considerations for comity (a rule or courtesy by which one court defers to the concomitant jurisdiction of another): the military is best served without interference from civilian courts, and the court should respect “the integrated system of military courts and review procedures” that Congress created.
The Court rejected these assertions on the basis that Hamdan is not a member of our Nation’s Armed Forces (the defendant in Councilman was an army officer), and the tribunal convened to try him is not a part of the integrated system of military courts that Congress established. The Court comes to this conclusion because there was no independent review panel, i.e. Hamdan has no right to appeal any conviction pursuant Commission Order 1, which provides review by the Secretary of Defense himself, and then, finally, to the President. The Court felt that the panel lacked structural insulation from military influence, and thus did not bear structural similarity of state courts. Therefore, the government could not invoke the comity principles set forth in Councilman.
The Court relied on the precedent set in Quirin. In the Quirin case the Court felt that “public importance of the question” raised and the “duty which rests on the courts……to preserve the constitutional safeguards……without avoidable delay” was compelling enough for them not to depart from that precedent, therefore, abstention in this case was not justified and consequently declined.
John C. all the time.........where is everyone else?
Hi Accelerators,
John, good recap of the timeline in this case (and very well written by the way!). I'm on my 3rd reading of this opinion and I'm not settled yet on lwhere to jump in and comment. I've focused specifically on Justice Stevens section (V) and get for the most part his reasoning on the cases cited. I also am a little surprised at his comments on Justice Thomas' opinion. If what we're supposed to be doing here is reviewing what he said and finding the links to the Constitution, I am willing to take a shot at it...There is so much in this opinion that it's really hard to know where to start- so I'm going to take your emailed suggestion and claim Part V for my portion. Anyone else who wants to jump in is welcome as well. More to follow in the next hour.
Margaret.
Hi Margaret,
Here are the notes I gleaned from the opinion regarding section five. I hope they are helpful
Part 5
Is the military commission convened to try Hamdan justified?
Military commissions have been historically used in three instances:
1. A substitute for civil courts where martial law has been declared.
2. Established to try civilians as part of a temporary military government over occupied enemy territory or where civilian government does not or cannot function.
3. An “incident to the conduct of war” primarily used to conduct fact-findings, and jurisdiction is limited to offenses cognizable by the “law of war” on the battlefield.
Justice Stevens' assertion is Guatanamo Bay is not enemy-occupied territory, nor is it under martial law.
Justice Stevens looks to the treatises of Col. William Winthrop to define the law of war.
Winthrop describes four pre-conditions:
I. Offenses committed in the field “The theater of war”
II. Offense must have been committed in the war-time period
III. Only certain offenses can be tried
IV. The tribunal only has jurisdiction to try the two offenses
Though the pre-conditions are not comprehensive, the point that Justice Stevens makes is that there must be a military necessity “…to justify the use of this extraordinary tribunal…..”
Also, he notes that GB is not a “theater of war”, there are not overt acts alleged, and the offense of conspiracy is not trial by a law of war military commission
Other points the Justice asserts:
1 The UCMJ incorporates the common law of war by reference.
2. If there is no definable statute or treaty for an offense, the precedent must be plain and unambiguous.
3. The government must make substantial showing that the offense it wants to try by Military commission must be against the law of war. This burden has not satisfied.
4. Conspiracy has never been tried in the US by any law of war military commission not exercising some other form of jurisdiction.
5. The offense in not mentioned in the major treaties on the law of war.
6. The court in the Quirin case identified an overt, “complete act” in its decision.
7. No major treat recognizes conspiracy as a stand alone offense in the law of war.
Justice Stevens held that a "military commission under the authority of executive order Article 21 of the UCMJ is not lawful to try a person and subject him to punishment."
Ok John, thanks for your input on section V. Essentially you have covered just about everything I was planning to say....But since I just spent the past few hours re-reading Section V and making pages of notes...and since it is now 2:30 in the morning and I am going to be even more exhausted when the alarm goes off - - I am going to go ahead and post my notes into this blog anyway. For the record, your analysis is spot on, but since I've also struggled through this opinion, here goes...
Justice Stevens (referred to hereafter, as JS) bases his opinion on common law governing military commissions and what legal precedent there is (which is not all that robust).
JS informs the Court that there have been 3 situations in the past in which military commissions have been used:
1. as a substitute for civilian courts when matial law has been declared - and he says this has often raised constitutional questions when it's been done. p31 (para 1)
2. as a temporary fix in occupied enemy territory (or in territory regained from the enemy) where civilian government (Ie: the courts) are not functioning, or can't function. An example would be in Germany in 1945 at the end of WWII. p.31 (para 1).
3. when war is actually "in play" to determine on the battlefield whether a defendent has violated the law of war. p.32 (para 2) An example would be, as the Allies advanced accross Europe, they captured a German commander who had ordered the killing of villagers in repraisal for some offense, the Allied Commander could establish a military commission to try this war crime in the absence of any funtioning courts in the area.
JS then pulls from QUIRIN the point that "commissions convened during time of war, but not under martial law or military government may only try offenses against the law of war" p.32 (footnote 27).
JS points out that the last time a law of war military commission was established was during WWII.p.33 (para 1) He also points out that Gitmo doesn't meet the first two criteria for establishing a military commission: enemy occupied territory, or under martial law--so the only path left is the law of war commission ( using the QUIRIN case precedent). JS cautions that this case represented the ultimate in executive and military power to try enemy combatents for war crimes. p. 33 (para 2)
He cites Col. Winthrop (Reid v. Covert) who wrote that at least 4 pre- conditions had to be present in order to justify the kind of tribunal (law of war military commission) being used to try Hamdan.
They are: 1. the offenses have to had happened "within the field" of the military commander (that is 'on the ground')
2. the offense must have been committed during the war (if not, "no jurisdiction exists to try offenses committed before or after the war").p.33(para 3)
3. the commission can only try persons of the enemy's army who have been guilty of illegitimate warfare (ie: in violation of the laws of war).
4. A law of war commission can only try 2 kinds of offenses: -violations of the laws and usages of war "cognizable by military tribunals only" and
-"breaches of military orders or regulations that can't be tried under court martial". p 34 (para 1)
JS makes the point that all the parties in this case are in agreement that Winthrop's analysis and points is an accurate description of the common law governing military commissions, and that his 4 points were incorporated into Article of War 15 and also into Article 21 of the UCMJ. p.34 (para 2).
JS says that Hamdan's commission "lacks jurisdiction to try him because the details of the act charged (conspiracy) must also include the circumstances "conferring jurisdiction". p.34 (para 2). He is saying that he doubts whether the preconditions exist that show there was a military necessity that justified the use of a tribunal.
more to come in post #2...
Part 2
JS goes on to explain that the charge of conspiracy against Hamdan was defined by the President (Executive) as opposed to Congress - and was alleged to have happened over the course of 5 years (1996-Nov. 2001. In other words, the conspiracy happened before the war even began! p.34 (para 3 and footnote 30) JS doesn't buy Justice Thomas' opinion that the 1996 declaration of Jihad by Osama Bin Laden was the beginning of the war, and therefore covers the 1996 start of the conspiracy charge against Hamdan. JS holds that the sources Justice Thomas has used "simply do not support his positon"p.35 (footnote 31)
JS states that none of the acts that Hamdan is alleged to have committed violates the law of war.p.36 (para 1) He also holds up Winthrop in that the offenses had to have been committed in a theater of war and during the war - not before it. Because of this, the charge is not triable by a law of war military commission.p.36 (para 2)
Again Justice Thomas comes in for criticism for including other less well defined and supported charges along with the original conspiracy charge. p.37(footnote 32) JS levels the criticism that the cases Justice Thomas used don't support his arguement.
Moving on to Congress and the Constitutional powers it has in Article I, section 8, clause 10, -- JS says that Congress never defined Conspiracy as a war crime.p.38 (para 1) JS goes on to say that if the offense and the punishment are not defined by statute or treaty, then the precedent has to be crystal clear. To do anything otherwise , would be risking giving the military too much "adjudicative and punitive power that the statute and the Constitution neve intended them to have.p.38
JS makes the point that the gov't. has to convince us that the crime that it wants to try before a military commission is really an offense against the law of war.p.39 And that it hasn't in this case.p.40
"Conspiracy" just doesn't meet the standard. It has never been tried in the U.S. by a military commission and further, doesn't appear in either the Hague or Geneva Conventions which are the international gold standard on the law of war.p.40
Again referring to Winthrop, JS makes the
clarification that intent isn't 'close enough'; there must be an overt act.p.40
JS says the three sources the gov't uses to support it's charges against Hamdan dont' hold up on closer inspection:
1. In QUIRIN the Court actually declined to consider whether the conspiracy offense actually qualified as a violation of the law of war (and was therefore triable by military commission).p41 (para 2)
In the Court opinion "no mention was made of Charge IV - the conspiracy charge.p.42 (para 2)
JS says that QUIRIN supports Hamdan's arguement that conspiracy is not a violation of the law of war""p.43 (para 1)
2. the second of the 3 sources the gov't cites in its case is Howland who identifies conspiracy as one of 20 offenses "prosecuted by military commissions." But JS says that the cases that Howland cited to support his list of offenses against the law of war do not support the inclusion of conspiracy as a violation of the law of war.p44 (para1)
3. with Winthrop, (the 3rd source cited by the gov't in support of its case, there is the inclusion of "criminal conspirancies" in the "list of crimes and statutory offenses cognizable by state or US courts and triable by martial law or military commission."p. 44 (para 2) But JS says the gov't relies on a weak reading of a footnote Winthrop wrote giving as examples serveral Civil War examples of "conspiracy of the first and second class"p.44 (para2)
He goes on to say that the military commissions that functioned during the civil war, functioned to meet multiple needs: "martial law or military government tribunals, as well as law of war commissions."p.44 (para 3) Meaning that they tried "war crimes and ordinary crimes together"p.44(para 3)
The point is that this created a "hybrid" type of court, often trying "hybrid" types of crimes.p.45(para 1) In other words, the Military Commissions were also functioning as regular courts in place of non-functioning civil courts and that fact tells us that they weren't trying only offenses against the law of war. Winthrop, according to JS confirmed this understanding when "he emphasizes that 'overt acts' constituting war crimes are the only proper subject at least of those military tribunals not convened to stand in for local courts.p.45(para 1)
JS disagrees with Justice Thomas' citing of the Civil War era Wirz case as supportive of the govt's contention that conspiracy is a recognized violation of the laws of war.p.45 (para2) Essentially in that case, Wirz did meet the 'overt acts' standard mentioned by Winthrop, because he personally committed atrocities against Union prisoners of war.p45 (para2) But a co-conspirator (R B Winder) was found not triable by the military commission because there wasn't enough evidence to show that he was involved in committing the atrocities himself (that is, "overtly acted")
In other words, thinking, planning, wishing etc. is not the same as actually doing.
Post 3 contains more....
Post 3
As for the major international treaties (Hague and Geneva) governing the law of war, JS writes that "conspiracy" as it's used in the govt's case against Hamdan, is "not a regognized violation ofthe law of war"p.46 (para2)
Conspiracy only holds (in the context of the treaties) when it's "conspiracy to commit genocide and common plan to wage aggresive war"p,46 (para 2). For conspiracy of this sort to be proven it has to happen by actually participating in a "concrete plan to wage war." (an overt act, once again) p. 46 (para 2)
At Nuremberg (and in QUIRIN) the Courts did not agree to take on conspiracy as a violation of the law of war.p.47 (para 1) Partly because some of the European Justices felt that the "concept of conspiracy was not part of the European legal systems and arguably not an element of the internationally recognized laws of war."p.47 (para 2)
JS says in summing up his opinion that the sources the gov't and Justice Thomas use to make their case, do just the opposite.p. 48 (para1). He writes that the "gov't has failed even to offer a 'merely colorable' case for the inclusion of conspiracy among those offenses cognizable by law of war military commission. p. 48 (para 1)
Essentially the gov't hasn't proved that its charge is within the jurisdication of a military commission to hear, and therefore it doesn't give a military commission the authority to try Hamden's case. p. 48 (para1)
JS then takes on the broader issue of the Executive's right (or lack of right!) to establish military commissions without specific congressional authorization - - particularly since there was, and is, "no military necessity".p.48 (para 2)
In other words, Hamdan wasn't on a field of battle and his tribunal wasn't under an active (on the battlefield) military commander. p.48 (para 2)
The timing of the arrest and delayed charges is also a major issue. Hamdan was arrested in Nov 2001 and not charged with any crime against the law of war until mid 2004 (3 years later). Nothing he was charged with was a 'war crime' nor did it occur in the 'theatre of war'. Because of the huge time delay, there wasn't any urgent need for justice to be done immediately on the battlefield. p. 49 (para 1)
The bottom line is that there is no historical evidence or precedent that would allow " a military commission established by Executive Order under the Authority of Ariticle 21 of the UCMJ to lawfully try a person (Hamdan) and subject him to punishment p. 49 (para 1)
That's it for section V - anyone see it differently?
Margaret
Thanks, JC and MC! I really had a hard to disecting this case as well. I too read and re-read.
Justice Stevens states charges of conspiracy or any other overt act Hamadan committed(pg36) does not violate laws of war.
Jutice Stevens goes on to support his argument by showing fallacy within Justice Thomas argument. Justice Stevens causes for distinction of offenders vs the offenses(pg 37). "the label alone does not render a person susceptible..."
After showing fallacy within Justice Thomas' argument Stevens goes on to review the arguments of the Goverment. Stating(pg 40) "crime of conspiracy has not been tried by any law of war military commission and does not appear in the Geneva or Hague Conventions."
Justice Stevens also notes by using Winthrop (pg40), " it is not enough to intend to violate laws of war and committ overt acts unless the acts and intent are offenses against law of war or constitute steps that qualify as attempts."
I believe Justice Stevens is tying his argument of the distinction of offenses vs. offenders (pg 37) to the criteria to be considered a violation on law of war (pg. 40)
Justice Stevens goes on to show that the Government's use of Winthrop and Howland does not fully support thier claims. Justice Stevens points out that Howland and Winthrop either exclude or does not cite conspiracy as a violation of law of war, nor is the Government's emphasis on criminal conspiracy suitable to be tried by martial law or military commission.(pg 43-44)only when accompanied by another offense does conspiracy violate law of war, it is not a stand alone offense, Stevens argues.
From there Justice Stevens points out fallacy within Jutice Thomas' argument that evidence of conspiracy was recognized as violation of law of war by the indictment of Henry Wirz. Justice Stevens points out that R.B. Winder one of the co-conspirators was not tried before military commission due to insufficient evidence and therefore no overt violation of laws of war were fixed upon him (pg46). In addition to that Stevens mentions that even in international sources conspiracy is a laws of war violation when conspiring to committ genocide and wage war. It is also pointed out that members of the Tribunal at the Nuremberg trials objected conspiracy as laws of violation as well, Hitler's associates were convicted of conspiracy to wage aggressive war, on the issue of definition (Anglo-American vs. European).
Justice Stevens states that the Government's and Jutice Thomas' attempts to show conspiracy as laws of war violation only show the opposite (pg.48) the charges do not satify preconditions and have no historical evidence. Hamdan's charge with an overt act that should be tried by military commission. Justice Stevens gives factual evidence as to why Hamdan's crime should not be considered laws of war violation or even tried by military commission
Hi Guys,
MY APOLOGIES!!! My computer is not working and its been hard to get here. Wow all these postings are great and I am leaving my notes on the issue that I hand wrote so if it overlaps on some of yours just know I wrote them not being able to read all of your responses. When we got the assignment I saw what a long complex case it was and I understood why we needed to discect areas of this case. Justice Stevens's opinions alone bring up many good constitutional issues that need to be examined. When we first go the assignment I asked myself.. What were JS opinions and why are they so important to the case as a whole? Then I began to search the article and outside sources.. I also had to really understand terms such as laws of war, geneva convention etc..SO in responce I have found several of JS opionions relating to jurisdiction, violations of comittees set up for protection and possibly of abuse of presidential/executive powers, In this case Hamdan was being arrested under "conspiracy" that was the basis for all the opinions right? Its then JS (opinionates??) About the five w's. who? wat?.../ u no!
Juristiction absorbed many substantial issues in this case which surrounded where this case should have even been tried i.e. "court martial" or "military convention" how he should be tried- as a militant even though he was not! Which court cases were precendet or persuasive.. (the court tried to bring an unprecedented case to sentence him) Also it brought up which protections he was bound to -laws or war, UAMF and Geneva convention which clearly he was not being held by. This then filters out into the handling of it from the president. We discussed in class that in times of war the president may extend his powers too broadly so was the military commission an example of this?? Its hard to read this case knowing what he was accused of and being an American..I could honestly say hey buddy..if its true you got off easy.. but then as an American I am proud to have a system of government set up that is fair and humane. If this case was brought forth with unethical procedures and and violations from the government and executive system it scares me to think what could happen in any case? I realize Im being broad with my response and I could write a book in continuning with JS's opnion with more details explaining the above but I will save my thoughts more for class. Thanks!
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