In Guantanamo case, justices rein in executive power.

The most important decision in the Supreme Court's 2005-2006 term was Hamdan v. Rumsfeld. (1) The justices held that the military commissions created by the Bush administration for the trial of terrorist suspects detained at Guantanamo Bay, Cuba, violate U.S. and international law. Although the decision's immediate effect is limited to the 10 people who were awaiting trial in these tribunals, the significance of the case cannot be overstated.

Since January 2002, when the first prisoners were brought to Guantanamo, the Bush administration has claimed that there can be no judicial review of its actions regarding them. But two years ago, in Rasul v. Bush, the Court held that those detained at Guantanamo could bring habeas corpus petitions in federal courts. (2) And in Hamdan, the Court emphatically held that federal courts can enforce U.S. and international law to protect the rights of those held there.

These cases are important because they make clear that even when the government is pursuing its mission of protecting public safety, the rule of law applies. The actions of the president and others in the executive branch--no matter how noble and important their objectives--are subject to judicial review and must comply with the law.

On November 13, 2001, President Bush issued an executive order allowing military commissions to try noncitizens for suspected terrorist activity. (3) Those subject to the order include any noncitizen for whom the president determines "there is reason to believe" that he or she "is or was" a member of al Qaeda or has engaged or participated in terrorist activities aimed at or harmful to the United States. Any such individual "shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including imprisonment or death." (4)

Salim Ahmed Hamdan, a Yemeni national, was captured by militia forces in Afghanistan in November 2001 and was turned over to the U.S. military. There is no dispute that for a time he was a driver for Osama bin Laden, although Hamdan strongly denies that he was ever involved in terrorist activity.

In June 2002, Hamdan was transported to Guantanamo Bay. More than a year later, the government deemed him eligible for trial before a military commission for then-unspecified crimes. After another year had passed, Hamdan was charged with one count of conspiracy to commit "offenses triable by military commission."

Hamdan brought a habeas corpus petition in the U.S. District Court for the District of Columbia, challenging the legality of the military commission under U.S. and international law. The court ruled in Hamdan's favor, (5) but the District of Columbia Circuit Court reversed. (6) One of the three judges ruling against Hamdan was then-Circuit Court Judge John Roberts. In November 2005, the Supreme Court granted review, with Chief Justice Roberts recusing himself.

In December 2005, Congress passed, and Bush signed, the Detainee Treatment Act. (7) The act, in part, prevents federal courts from exercising jurisdiction over habeas corpus petitions filed by those detained at Guantanamo Bay. It also amends the habeas corpus statute to provide that "no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." (8)

Under the law, detainees may obtain federal court review of a military tribunal's decision only in the District of Columbia Circuit. Review is guaranteed for any prisoner sentenced to death or a term of imprisonment of 10 years or more, but it is at the circuit court's discretion in all other cases. The scope of review is limited to whether the procedures specified in the military order were followed and whether there was a violation of the Constitution and laws of the United States. The government moved to dismiss Hamdan's case based on these provisions.

Rule of three

In a 5-3 decision, without Roberts, the Court ruled in favor of Hamdan. Justice John Paul Stevens wrote the majority opinion, joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Justices Antonin Scalia, Clarence Thomas, and Samuel Alito each wrote separate dissenting opinions.

Three aspects of the majority opinion are important. First, the Court held, based on principles of statutory interpretation, that the Detainee Treatment Act's restrictions on jurisdiction do not apply retroactively to cases pending at the time that it was adopted. The Court explained that there is a firmly established principle that statutes changing substantive rights are applied retroactively only if Congress clearly provides for this.

The Court found that "the act is silent about whether paragraph (1) of subsection (e) 'shall apply' to claims pending on the date of enactment." (9) In fact, the Court noted that the primary sponsors of the bill disagreed over whether the law was to apply to pending cases. (10) The Court therefore found it unnecessary to consider Hamdan's argument that the restrictions on jurisdiction were an unconstitutional suspension of the right of habeas corpus.

This holding has significance be yond Hamdan's case. Over 100 habeas corpus petitions were brought on behalf of Guantanamo detainees before the passage of the Detainee Treatment Act. These cases are now pending before the District of Columbia Circuit. After the act was adopted, the government argued that all these cases should be dismissed, but the Supreme Court's decision clearly means that the pending cases can go forward.

Second, the Court held that the president lacked adequate statutory authority to create the military commissions. It did not address whether the president may constitutionally convene military commissions "without the sanction of Congress," noting that this is a question it "has not answered definitively, and need not answer today." (11) But in an important footnote, the Court said, "Whether or not the president has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. The government does not argue otherwise." (12)

The Court stressed that two statutory provisions limit the president's authority: Articles 21 and 36 of the Uniform Code of Military Justice (UCMJ). (13) The majority explained that Article 21 conditions the president's use of military commissions on compliance with the "law of war," which includes the four Geneva Conventions.

The government claimed that statutory authority for the military commissions could be found in the Joint Resolution Authorizing the Use of Military Force (AUMF), which was adopted after the September 11, 2001, terrorist attacks. (14) The Court expressly rejected this argument and declared that "there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ." (15)

This, too, has significance beyond Hamdan, because the administration has used the AUMF to authorize its actions in the war on terrorism, including its program of warrantless electronic eavesdropping. The majority opinion makes it clear that the Supreme Court is unwilling to read the AUMF as a blank check for presidential actions, especially when they contradict statutory provisions.

Third, the Court held that the procedures for the military commissions provided by presidential order violate the requirements of the UCMJ and Common Article 3 of the Geneva Conventions. One of Common Article 3's provisions requires the use of a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." (16) Hamdan conceded that a regularly constituted court would include military courts used for court martial proceedings. But the Court held that they do not include the military commissions created by executive order.

The Court declared: "Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the president has convened to try Hamdan does not meet those requirements." (17)

For example, the Court pointed out that the military commissions could exclude a defendant from proceedings and even from knowing the evidence against him. (18) The Court also noted that a commission order dispenses with virtually all the rules of evidence followed in court martial proceedings. (19) It rejected the government's claim that it was impracticable to comply with UCMJ requirements. (20)

Writing for a mere plurality of four, Stevens also concluded that conspiracy charges could not be heard by the military commissions. Kennedy concurred in this and said that there was no need for the Court to reach this issue.

Here again, the Court's analysis has broader significance. The Bush administration repeatedly has claimed that the Geneva Conventions do not apply to members of al Qaeda because they are not fighting for a nation. The Court expressly rejected this contention and held that Common Article 3 applies at least to the military commissions established to try Hamdan and other terrorist suspects. Whether the Geneva Conventions apply more broadly to those at Guantanamo and to inmates in other U.S. military prisons outside the country was not before the Court.

The Court stressed that it was not considering the legality of detaining Hamdan or others at Guantanamo. Stevens wrote, "It bears emphasizing that Hamdan does not challenge, and we do not today address, the government's power to detain him for the duration of active hostilities in order to prevent such harm. But 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." (21)

Long ago, Marbury v. Madison established the power of judicial review and declared the basic principle that no person, not even the president, is above the law. (22) Hamdan reaffirms this and holds that the president--even in the war on terrorism, even as to alleged members of al Qaeda, even outside the United States--must comply with the U.S. Constitution and the laws and treaties of our nation.

Notes

(1.) 126 S. Ct. 2749 (2006).

(2.) 542 U.S. 466 (2004).

(3.) Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57833 (Nov. 13, 2001).

(4.) Id. at 57834.

(5.) 344 F. Supp. 2d 152 (D.D.C. 2004).

(6.) 415 F.3d 33 (D.C. Cir. 2005).

(7.) Pub. L. 109-148, 119 Stat. 2739 (Dec. 30, 2005).

(8.) Id. [section] 1005(e) (1).

(9.) 126 S. Ct. 2749, 2763.

(10.) Id. at 2766 n.10.

(11.) Id. at 2774.

(12.) Id. at 2774 n.23.

(13.) 10 U.S.C. [subsection]821 and 836(b) (2006).

(14.) Pub. L. 107-40, 115 Stat. 224 (Sept. 18, 2001).

(15.) 126 S. Ct. 2749, 2775. The Court also rejected the government's argument that the Detainee Treatment Act authorized the military commissions.

(16.) Id. at 2796 (citing the Geneva Conventions of 1949, 6 U.S.T. at 3320 (Art.3 (1) (d))).

(17.) Id. at 2798.

(18.) Id. at 2790.

(19.) Id.

(20.) Id. at 2792.

(21.) Id. at 2798.

(22.) 5 U.S. (1 Cranch) 137 (1803).