548 U.S. 557 (2006)
Salim Ahmed Hamdan, a Yemeni national, was captured by militia forces in Afghanistan in November 2001 during hostilities between the United States and the Taliban regime that then governed the country.1 The militia turned him over to the United States military, which transported him to the detention facility at Guantanamo Bay, Cuba, in June 2002.2 Over a year later, on July 3, 2003, the President determined that Hamdan was eligible for trial by military commission for then-unspecified crimes.3
Subsequently, on July 13, 2004, the government charged Hamdan with one count of conspiracy to commit offenses triable by military commission.4 The charging document alleged that from February 1996 to November 2001 he had joined an enterprise with al Qaeda members and committed four overt acts in furtherance of that conspiracy.5 Hamdan then filed petitions for writs of habeas corpus and mandamus in the United States District Court for the District of Columbia to challenge both the authority of the military commission and the procedures it would employ.6
The District Court granted Hamdan's habeas petition on November 8, 2004, stayed the commission proceedings, and concluded that the commission lacked authority under the law of war and violated both the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions.7 The Court of Appeals for the District of Columbia Circuit reversed that decision, holding that the Geneva Conventions were not judicially enforceable and that the commission's jurisdiction and procedures were lawful.8 The Supreme Court granted certiorari on November 7, 2005.9
On December 30, 2005, Congress enacted the Detainee Treatment Act, after which the government moved to dismiss the case for lack of jurisdiction.10 The Supreme Court postponed ruling on the motion and later denied it, retaining jurisdiction over the appeal.
Whether the Detainee Treatment Act of 2005 deprives this Court of jurisdiction to review the Court of Appeals' decision in this pending case?11
DTA §1005(e)(1) strips jurisdiction over habeas applications by Guantanamo detainees.12 Section 1005(h)(2) expressly applies only paragraphs (2) and (3) to pending cases.13 Under ordinary principles of statutory construction and the negative inference from Lindh v. Murphy, the omission of paragraph (1) means it does not apply to cases pending on the date of enactment.14
No. Hamdan filed his habeas petition in the District Court for the District of Columbia well before the DTA's December 30, 2005 enactment. The legislative history confirms Congress considered but rejected language that would have applied the jurisdiction-stripping provision to pending cases.15 The Supreme Court therefore retained jurisdiction to review the Court of Appeals decision.16
The DTA does not strip jurisdiction over Hamdan's pending petition.17
Related opinions on this issue
Joined by Justice Thomas And Justice Alito
Justice Scalia dissented on the ground that DTA §1005(e)(1) unambiguously eliminates jurisdiction over pending habeas applications by Guantanamo detainees as well as future ones.18 He relied on the Bruner line of cases holding that statutes ousting jurisdiction take immediate effect absent an express reservation of pending cases.19 Scalia argued that the negative inference from subsection (h)(2) is unwarranted because subsections (e)(2) and (e)(3) create new jurisdiction while (e)(1) merely strips it.
He maintained that the legislative history does not overcome the statute's plain meaning.20 Scalia concluded that the Court lacked jurisdiction to hear the case.21
Whether principles of comity require federal courts to abstain from reviewing challenges to ongoing military commission proceedings?22
Under Schlesinger v. Councilman, federal courts ordinarily abstain from interfering with ongoing court-martial proceedings against service members out of comity for the integrated military justice system.23 Abstention is inappropriate when the defendant is not a service member and the tribunal is not part of that integrated system.24
No. Hamdan is a civilian detainee, not a member of the armed forces, so military discipline concerns do not apply.25 Moreover, the military commission is not part of the congressionally established system of courts-martial with independent civilian appellate review, making Councilman abstention inapposite and Quirin the controlling precedent that permits immediate review.26
Federal courts need not abstain from reviewing the lawfulness of Hamdan's military commission.27
Related opinions on this issue
Joined by Justice Souter, Justice Ginsburg, And Justice Breyer
Justice Kennedy concurred in the judgment on the ground that the commission is unauthorized under the UCMJ and Geneva Conventions.28 He would not decide whether Common Article 3 requires the accused's presence at all stages or address the validity of the conspiracy charge. Kennedy emphasized that Congress has set limits on presidential authority through the UCMJ and that the commission procedures deviate from court-martial practice without sufficient justification.29
He stressed the importance of structural independence and procedural fairness in military tribunals.30
Whether any Act of Congress or the common law of war authorizes the President to convene a military commission to try Salim Ahmed Hamdan for conspiracy?31
UCMJ Article 21 preserves the President's authority to convene law-of-war military commissions only for offenses against the law of war.32 Neither the AUMF nor the DTA expands that authority.33 Conspiracy has not been shown by plain and unambiguous precedent to be a violation of the law of war triable by such commissions.34
No. The charging document alleges a conspiracy spanning 1996 to November 2001 with overt acts that are not themselves war crimes and that largely predate the September 11 attacks and the AUMF.35 Historical sources, including Winthrop and the Nuremberg Tribunal, confirm that conspiracy as such is not recognized as a standalone law-of-war offense triable by military commission.36
No Act of Congress or the common law of war authorizes Hamdan's trial by military commission on the conspiracy charge.37
Related opinions on this issue
Joined by Justice Scalia
Justice Thomas dissented, contending that the AUMF and the President's commander-in-chief authority support trial by military commission for conspiracy to violate the law of war.38 He argued that historical practice from the Civil War through World War II recognized such conspiracy charges before military commissions.39 Thomas maintained that the Court's refusal to defer to the Executive's military and foreign-affairs judgments is antithetical to the constitutional structure.40
He concluded that the commission was lawfully convened and that conspiracy is a recognized offense under the law of war.41
Whether the procedures established for Hamdan's military commission violate the Uniform Code of Military Justice?42
UCMJ Article 36 requires that procedural rules for military commissions be uniform with those for courts-martial insofar as practicable.43 The President must make a determination of impracticability before departing from court-martial rules.44 Absent such a showing, significant deviations such as exclusion of the accused from proceedings render the commission unlawful.45
Yes. Commission Order No. 1 permits the accused and civilian counsel to be excluded from closed sessions and allows admission of evidence having only probative value to a reasonable person.46 Yet the President made no official determination that applying court-martial rules would be impracticable.47 The record reveals no logistical or security obstacle that would justify jettisoning the fundamental right to be present.48
The procedures for Hamdan's military commission violate the UCMJ.49
Related opinions on this issue
Joined by Justice Kennedy, Justice Souter, And Justice Ginsburg
Justice Breyer concurred to emphasize that the Court's decision rests on the ground that Congress has not issued the Executive a blank check.50 He noted that where no emergency prevents consultation with Congress, judicial insistence on that consultation strengthens rather than weakens the Nation's ability to confront danger through democratic means.51 Breyer stressed that the President remains free to return to Congress for additional authority if needed.52
Breyer underscored that the Constitution places its faith in democratic means and that the Court was simply doing the same by requiring congressional involvement before the Executive could depart from established military justice procedures.53
Whether the procedures established for Hamdan's military commission violate Common Article 3 of the Geneva Conventions?54
Common Article 3 applies to armed conflicts not of an international character and requires that sentences be pronounced only by a regularly constituted court affording all judicial guarantees recognized as indispensable by civilized peoples.55 A military commission is regularly constituted only if practical need justifies deviations from court-martial practice.56
Yes. The commission permits exclusion of the accused from proceedings and admission of evidence without the accused's knowledge, procedures that deviate from court-martial rules without demonstrated practical necessity.57 These departures fail to satisfy the minimum protections of Common Article 3 even if the conflict with al Qaeda is deemed distinct from the conflict with Afghanistan.58
The procedures for Hamdan's military commission violate Common Article 3.59
Related opinions on this issue
Joined by Justice Scalia And Justice Thomas
Justice Alito dissented in relevant part, arguing that the military commission is regularly constituted because it was appointed pursuant to presidential order in accordance with domestic law.60 He maintained that Common Article 3 looks to the appointing country's domestic law for regularity of constitution.61 Alito contended that any procedural defects can be reviewed case-by-case rather than invalidating the entire commission structure.62
He concluded that the commission satisfies the requirements of Common Article 3.63 Alito further reasoned that the commission's procedures, taken as a whole with appellate review available, meet the international standard of a regularly constituted court and that mid-trial changes or evidentiary rules do not automatically render the tribunal illegitimate.64
Whether conspiracy to commit offenses against the law of war constitutes an offense triable by military commission?65
A law-of-war military commission may try only offenses that are plainly and unambiguously recognized as violations of the law of war by statute, treaty, or longstanding historical precedent.66 Conspiracy has rarely if ever been tried as a standalone offense before such commissions and is not recognized in the Geneva or Hague Conventions.67
No. The charge alleges a multi-year conspiracy whose overt acts are not themselves war crimes and largely predate the armed conflict that began with the September 11 attacks.68 Sources from Winthrop through the Nuremberg Tribunal confirm that conspiracy to violate the law of war is not a recognized offense triable by military commission absent additional statutory authorization.69
Conspiracy to commit offenses against the law of war is not triable by military commission.70