Hamdan v. Rumsfeld: Military Commissions in the "Global War on Terrorism"

CRS Report for Congress
Hamdan v. Rumsfeld: Military Commissions
in the “Global War on Terrorism”
Jennifer K. Elsea
Legislative Attorney
American Law Division
Summary
The Supreme Court ruled 5-3 that President Bush’s military order on the Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism exceeded
his authority. The Court found that Congress did not strip the Court of jurisdiction to
hear Hamdan v. Rumsfeld when it passed the Detainee Treatment Act of 2005 (title X
of P.L.109-148), which limited federal court jurisdiction over habeas corpus petitions
from detainees held at the Guantanamo Bay detention facility. Although the Court did
not dispute the President’s authority to hold the petitioner as an “enemy combatant ...
for the duration of hostilities,” it found the military tribunals convened to try detainees
for violations of the law of war did not comply with the Uniform Code of Military
Justice (UCMJ) or the law of war, as incorporated in the UCMJ and embodied in
Common Article 3 of the Geneva Conventions, which the Court held applicable to the
armed conflict. The three dissenters argued that the ruling would hamper the President’s
ability to fight terrorism. The majority left open the possibility that Congress could
grant the necessary authority to create military commissions that depart from the UCMJ.
One new bill, S. 3614, addresses the issue.
In Hamdan v. Rumsfeld, decided June 29, 2006, the Supreme Court reviewed the
validity of military commissions established to try suspected terrorists of violations of the
law of war, pursuant to President Bush’s military order (M.O.).¹ The Court did not revisit
its 2004 opinion in Hamdi v. Rumsfeld² upholding the President’s authority to detain
individuals in connection with antiterrorism operations, and did not resolve whether the
petitioner could claim prisoner-of-war (POW) status, but held that “in undertaking to try
Hamdan and subject him to criminal punishment, the Executive is bound to comply with
the Rule of Law that prevails in this jurisdiction.”³

¹ Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism §1(a),

66 Fed. Reg. 57,833 (Nov. 16, 2001) (hereinafter M.O.).

² 542 U.S. 507 (2004).
³ Hamdan v. Rumsfeld, No. 05-154, slip op. at 72 (U.S. June 29, 2006).
Congressional Research Service ˜ The Library of Congress

Background
Salim Ahmed Hamdan, who was captured in Afghanistan and is alleged to have
worked for Osama Bin Laden as a body guard and driver, brought this challenge to the
lawfulness of the Secretary of Defense’s plan to try him for alleged war crimes before a
military commission,⁴ arguing that the military commission rules and procedures were
inconsistent with the UCMJ⁵ and that he had the right to be treated as a prisoner of war
under the Geneva Conventions.⁶ U.S. District Judge Robertson agreed, finding no
inherent authority in the President as Commander-in-Chief of the Armed Forces to create
such tribunals outside of the existing statutory authority, with which the military
commission rules did not comply. He also concluded that the Geneva Conventions apply
to the whole of the conflict in Afghanistan, including under their protections all persons
detained in connection with the hostilities there,⁷ and that Hamdan was thus entitled to be
treated as a prisoner of war until his status was determined to be otherwise by a competent
tribunal, in accordance with article 5 of the Third Geneva Convention (prisoners of war).
The D.C. Circuit Court of Appeals reversed, ruling that the Geneva Conventions are
not judicially enforceable. Judge Williams wrote a concurring opinion, construing
Common Article 3 to apply to any conflict with a non-state actor,⁸ without regard to the
geographical confinement of such a conflict within the borders of a signatory state. The
Circuit Court interpreted the UCMJ language to mean that military commission rules have
only to be consistent with those articles of the UCMJ that refer specifically to military
commissions, and therefore need not be uniform with the rules that apply to courts-
martial. The Supreme Court granted review and reversed.
Jurisdiction
Before reaching the merits of the case, the Supreme Court declined to accept the
government’s argument that Congress had, by passing the Detainee Treatment Act of⁹

2005 (DTA), stripped the Court of its jurisdiction to review habeas corpus challenges by

⁴ 344 F.Supp.2d 152 (D. D.C. 2004), rev’d 415 F.3d 33 (D.C. Cir. 2005), cert. granted ^{2005 U}^.^S^.
^L^E^X^I^S^{8222 (N}^ov^{. 7, 2005).}
⁵ 10 U.S.C. §§ 801 et seq.
⁶ There are four Conventions, the most relevant of which is The Geneva Convention Relative to
the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3317 (hereinafter “GPW”).
⁷ 344 F.Supp.2d at 161.
⁸ GPW art. 3. For a discussion of Common Article 3, see CRS Report RL31367, Treatment of
“Battlefield Detainees” in the War on Terrorism, by Jennifer K. Elsea.
⁹ P.L. 109-148, §1005(e)(1) provides that “no court … shall have jurisdiction to hear or consider
… an application for … habeas corpus filed by … an alien detained … at Guantanamo Bay.”
The provision was not yet law when the appellate court decided against the petitioner, Hamdan
v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), rev’d^{548 U}^.^S^.^{__ (2006).} At issue was whether this
provision applies to pending cases. The Court found that the provision does not apply to
Hamdan’s petition, but did not resolve whether it affects other cases that fall under the DTA’s
provisions regarding final review of Combatant Status Review Tribunals. Slip op. at 19, and
n.14.

or on behalf of Guantanamo detainees whose petitions had already been filed.¹⁰ The
Court also declined to dismiss the appeal as urged by the government on the basis that
federal courts should abstain from intervening in cases before military tribunals that have
not been finally decided,¹¹ noting the dissimilarities between military commission trials
and ordinary courts-martial of service members pursuant to procedures established by
Congress.¹² The government’s argument that the petitioner had no rights conferred by the
Geneva Conventions that could be adjudicated in federal court likewise did not persuade
the Court to dismiss the case. Regardless of whether the Geneva Conventions provide
rights enforceable in Article III courts, the Court found that Congress, by incorporating
the “law of war” into UCMJ article 21,¹³ brought the Geneva Conventions within the
scope of law to be applied by courts. Justice Scalia, joined by Justices Thomas and Alito,
dissented, arguing that the DTA should be interpreted to preclude the Court’s review.
Presidential Authority
With respect to the authority to create the military commissions, the Court held that
any power to create them must flow from the Constitution and must be among those
“powers granted jointly to the President and Congress in time of war.”¹⁴ It disagreed with
the government’s position that Congress had authorized the commissions either when it
passed the Authorization to Use Military Force (AUMF)¹⁵ or the DTA. Although the
Court assumed that the AUMF activated the President’s war powers, it did not view the
AUMF as expanding the President’s powers beyond the authorization set forth in the
UCMJ. The Court also noted that the DTA, while recognizing the existence of military
commissions, does not specifically authorize them. At most, these statutes “acknowledge
a general Presidential authority to convene military commissions in circumstances where
justified under the ‘Constitution and laws,’ including the law of war.”¹⁶

¹⁰ Id. at 7. To resolve the question, the majority employed canons of statutory interpretation
supplemented by legislative history, avoiding the question of whether the withdrawal of the
Court’s jurisdiction would constitute a suspension of the Writ of Habeas Corpus, or whether it
would amount to impermissible “court-stripping.” Justice Scalia, joined by Justices Alito and
Thomas in his dissent, interpreted the DTA as a revocation of jurisdiction.
¹¹ Id. at 20. The court below had also rejected this argument, 413 F.3d 33, 36 (D.C. Cir. 2005).
¹² See Hamdan, slip op. at 23 (stating that the bodies established by the Department of Defense
to review the decisions of military commissions “clearly lack the structural insulation from
military influence that characterizes the Court of Appeals for the Armed Forces....”).
¹³ 10 U.S.C. § 821 (“The provisions of [the UCMJ] conferring jurisdiction upon courts-martial
do not deprive military commissions, provost courts, or other military tribunals of concurrent
jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried
by military commissions, provost courts, or other military tribunals.”)
¹⁴ Hamdan, slip op. at 27 (citing Congress’s powers to “declare War ... and make Rules
concerning Captures on Land and Water,” Art. I, §8, cl. 11, to “raise and support Armies,” id.,
cl. 12, to “define and punish ... Offences against the Law of Nations,” id., cl. 10, and “To make
Rules for the Government and Regulation of the land and naval Forces,” id., cl. 14.).
¹⁵ P.L. 107-40, 115 Stat. 224 (2001).
¹⁶ Hamdan, slip op. at 30.

UCMJ Limits on Military Commissions
In addition to limiting military commissions to trials of offenders and offenses that
are by statute or by the law of war consigned to such tribunals, the UCMJ provides
limitations with respect to the procedural rules that may be employed. Article 36 (10
U.S.C. § 836) authorizes the President to prescribe rules for “pretrial, trial, and post-trial
procedures, including modes of proof, for cases arising under this chapter triable in
courts-martial, military commissions and other military tribunals.” Such rules are to
“apply the principles of law and the rules of evidence generally recognized in the trial of
criminal cases in the United States district courts” insofar as the President “considers
practicable,” but which “may not be contrary to or inconsistent” with the UCMJ. In
addition, rules made pursuant to this authority “shall be uniform insofar as practicable.”
The President had determined with respect to the military commissions that “it is
impracticable to apply the rules and principles of law that govern ‘the trial of criminal
cases in the United States district courts,’” but made no determination with respect to the
practicability of applying rules different from those that apply in courts-martial.¹⁷
The Court interpreted article 36 to provide the President discretion to determine
which federal court rules need not be applied by various military tribunals¹⁸ due to their
impracticability. However, the Court read the uniformity requirement as according less
discretion to the President to determine what is practicable when providing different rules
for courts-martial, military commissions, and other military tribunals.¹⁹ Unlike the
requirement for rules to track closely with federal court rules, which the President need
follow only insofar as he deems practicable, the Court reasoned, the uniformity
requirement applies unless its application is demonstrably impracticable. Thus, less
deference was found owing, and the Court found that the government had failed to
demonstrate that circumstances make any courts-martial rules impracticable for use in
military commissions. Further, the Court found that some of the rules provided in the
Defense Department rules set forth in Military Commission Order No. 1 (M.C.O. No. 1),
in particular the provision allowing the exclusion of the defendant from attending portions
of his trial or hearing some of the evidence against him, deviated substantially from the
procedures that apply in courts-martial in violation of UCMJ article 36.²⁰
The Geneva Conventions and the Law of War
Rejecting the D.C. Circuit’s view that the Geneva Conventions are never enforceable
in federal courts,²¹ the Supreme Court found the Conventions to be part of the law of war

¹⁷ The government took the position that the “contrary to or consistent with” language applies
only with respect to parts of the UCMJ that make specific reference to military commissions.
¹⁸ The term “military tribunal” in the UCMJ should be interpreted to cover all forms of military
courts, encompassing courts-martial as well as military commissions.
¹⁹ Hamdan, slip op. at 59.
²⁰ Id at 61. Regarding the defendant’s right to be present during trial, the Court stated, “[w]hether
or not that departure technically is ‘contrary to or inconsistent with’ the terms of the UCMJ,

10 U. S. C. §836(a), the jettisoning of so basic a right cannot lightly be excused as ‘practicable.’”

²¹ See 415 F.3d at 39 (citing Johnson v. Eisentrager, 339 U.S. 763, 789, n. 14).

and thus relevant to the interpretation of UCMJ Article 21, because “compliance with the
law of war is the condition upon which the authority set forth in Article 21 is granted.”²²
In response to the alternative holding by the court below that Hamdan, as a putative
member of al Qaeda, was not entitled to any of the protections accorded by the Geneva
Conventions, the Court concluded that Common Article 3 of the Geneva Conventions
applies even to members of al Qaeda, according to them a minimum baseline of
protections, including protection from 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.”²³ While recognizing that Common Article 3 “obviously tolerates a great degree
of flexibility in trying individuals captured during armed conflict,” and that “its
requirements are general ones, crafted to accommodate a wide variety of legal systems,”
the Court found that the military commissions under M.C.O. No. 1 do not meet these
criteria. In particular, the military commissions are not “regularly constituted” because
they deviate too far, in the Court’s view, from the rules that apply to courts-martial,
without a satisfactory explanation of the need for such deviation.²⁴
Justice Stevens, joined by Justices Ginsburg, Breyer, and Souter, explored the
history of military commission practice in the United States and internationally to
conclude that conspiracy, the only charge lodged against the defendant, is not universally
recognized as a war crime and thus does not conform to the UCMJ requirement in article
21 that permits jurisdiction only over “offense[s] ... that by the law of war may be tried
by military commission.”²⁵ Justice Kennedy did not join in this part of the opinion,
finding the discussion unnecessary in light of the Court’s determination that the military
commissions do not conform to the UCMJ. Justice Alito, joined by Justices Scalia and
Thomas, dissented, arguing that the Court is bound to defer to the President’s plausible
interpretation of the treaty language.
Analysis
While the Hamdan Court declared the military commissions as currently constituted
to be “illegal,” it left open the possibility that changes to the military commission rules
could cure any defects by bringing them within the law of war and conformity with the
UCMJ. The Court also suggested, as emphasized in a concurrence by Justice Ginsburg,
that the President retains the option of asking Congress to authorize or craft rules tailored

²² Hamdan, slip op. at 63.
²³ GPW art. 3 § 1(d). The identical provision is included in each of the four Geneva Conventions
and applies to any “conflict not of an international character.” The majority declined to accept
the President’s interpretation of Common Article 3 as inapplicable to the conflict with al Qaeda
and interpreted the phrase “in contradistinction to a conflict between nations,” which the Geneva
Conventions designate a “conflict of international character”. Hamdan, slip op. at 67.
²⁴ Id. at 70 (plurality opinion); Id. (Kennedy, J., concurring) at 10. Justice Stevens, joined by
Justices Ginsburg, Breyer, and Souter, further based their conclusion on the basis that M.C.O.
No. 1 did not meet all criteria of art. 75 of Protocol I to the Geneva Conventions of 1949, adopted
in 1977 (Protocol I). While the United States is not party to Protocol I, the plurality noted that
many authorities regard it as customary international law.
²⁵ Id. at 70 (plurality opinion)(citing art. 21, UCMJ; 10 U.S.C. § 821).

to the Global War on Terrorism (GWOT). However, the Court did not resolve the extent
to which the Constitution restricts Congress’s authority to establish rules; that is, whether
the detainees, as aliens held outside of U.S. territory, have constitutional rights
enforceable in federal court. If Congress wishes to exempt the commissions from
compliance with treaty obligations, the Court may require it to do so clearly.
The decision may affect the treatment of detainees outside of their criminal trials; for
example, in interrogations for intelligence purposes. Common article 3 of the Geneva
Conventions mandates that all persons taking no active part in hostilities, including those
who have laid down their arms or been incapacitated by capture or injury, are to be treated
humanely and protected from “violence to life and person,” torture, and “outrages upon
personal dignity, in particular, humiliating and degrading treatment.” Insofar as these
protections are incorporated in the UCMJ and other laws, it would seem the Court is ready
to interpret and adjudicate them, to the extent it retains jurisdiction to do so. It is not clear
how the Court views the scope of the GWOT, however, because its decisions on the
merits have been limited to cases arising out of hostilities in Afghanistan.
The opinion reaffirms the holding in Rasul v. Bush²⁶ that the GWOT does not
provide the President a “blank check,” and, by finding in favor of a noncitizen held
overseas, seems to have expanded the Hamdi comment that
Whatever power the United States Constitution envisions for the Executive in its
exchanges with other nations or with enemy organizations in times of conflict, it most
assuredly envisions a role for all three branches when individual liberties are at²⁷
stake.
The dissenting views also relied in good measure on actions taken by Congress, seemingly
repudiating the view expressed earlier by the Executive that any efforts by Congress to
legislate with respect to persons captured, detained, and possibly tried in connection with
the GWOT would be an unconstitutional intrusion into powers held exclusively by the²⁸
President. Expressly or implicitly, all eight participating Justices applied the framework
set forth by Justice Jackson in his famous concurrence in the Steel Seizures case,²⁹ which
accords greater deference to the President in cases involving national security where he
acts with express congressional authority than when he acts alone. The differing views
among the Justices seems to have been a function of their interpretation of the AUMF and
other acts of Congress as condoning or limiting executive actions.
For information about relevant legislation, see CRS Report RL31600, The
Department of Defense Rules for Military Commissions: Analysis of Procedural Rules
and Comparison with Proposed Legislation and the Uniform Code of Military Justice.

²⁶ 124 S.Ct. 2686 (2004).
²⁷ 542 U.S. 507, 535 (2004).
²⁸ See, e.g. Oversight of the Department of Justice: Hearing Before the Senate Judiciary
Committee, 107^th Cong. (2002) (testimony of Attorney General John Ashcroft) (arguing that a
statute that could be read to interfere with the executive power to detain enemy combatants must
be interpreted otherwise to withstand constitutional scrutiny).
²⁹ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).