Hamdan v. Rumsfield
http://www.dcd.uscourts.gov/04-1519.pdf
Salim Ahmed Hamdan petitions for a writ of habeas
corpus, challenging the lawfulness of the Secretary of Defense’s
plan to try him for alleged war crimes before a military
commission convened under special orders issued by the President
of the United States, rather than before a court-martial convened
under the Uniform Code of Military Justice. The government moves
to dismiss.
Because Hamdan has not been determined by a
competent tribunal to be an offender triable under the law of
war, 10 U.S.C. § 821, and because in any event the procedures
established for the Military Commission by the President’s order
are “contrary to or inconsistent” with those applicable to
courts-martial, 10 U.S.C. § 836, Hamdan’s petition will be
granted in part. The government’s motion will be denied. The
reasons for these rulings are set forth below.
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The only three
facts that are necessary to my disposition of the petition for
habeas corpus and of the cross-motion to dismiss are that Hamdan
was captured in Afghanistan during hostilities after the 9/11
attacks, that he has asserted his entitlement to prisoner-of-war
status under the Third Geneva Convention, and that the government
has not convened a competent tribunal to determine whether Hamdan
is entitled to such status. All of those propositions appear to
be undisputed.
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In the context of this case, according comity to a military
tribunal would not “aid[] the military judiciary in its task of
maintaining order and discipline in the armed services,” or
“eliminate[] needless friction between the federal civilian and
military judicial systems,” nor does it deny “due respect to the
autonomous military judicial system created by Congress,”
because,
whatever else can be said about the Military Commission
established under the President’s Military Order, it is not
autonomous, and it was not created by Congress. Parisi, 405 U.S.
at 40.
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The New case identifies an exception to the exhaustion
rule that it characterizes as “quite simple: a person need not
exhaust remedies in a military tribunal if the military court has
no jurisdiction over him.” New, 129 F.3d at 644. . . .
2. No proper determination has been made that Hamdan is an
offender triable by military tribunal under the law of war.
a.
The President may establish military commissions only
for offenders or offenses triable by military tribunal
under the law of war.
The major premise of the government’s argument that the
President has untrammeled power to establish military tribunals
is that his authority emanates from Article II of the
Constitution and is inherent in his role as commander-in-chief.
None of the principal cases on which the government relies, Exparte
Quirin, 317 U.S. 1 (1942), Application of Yamashita, 327
U.S. 1 (1946), and Madsen v. Kinsella, 343 U.S. 341 (1952), has
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so held. In Quirin the Supreme Court located the power in
Article I, § 8, emphasizing the President’s executive power as
commander-in-chief “to wage war which Congress has declared, and
to carry into effect all laws passed by Congress for the conduct
of war and for the government and regulation of the Armed Forces,
and all laws defining and punishing offences against the law of
nations, including those which pertain to the conduct of war.”
Quirin, 317 U.S. at 10 (emphasis added).
Quirin stands for the
proposition that the authority to appoint military commissions is
found, not in the inherent power of the presidency, but in the
Articles of War (a predecessor of the Uniform Code of Military
Justice) by which Congress provided rules for the government of
the army. Id. Thus, Congress provided for the trial by courts
martial of members of the armed forces and specific classes of
persons associated with or serving with the army, id., and “the
Articles [of War] also recognize the ‘military commission’
appointed by military command as an appropriate tribunal for the
trial and punishment of offenses against the law of war not
ordinarily tried by court martial.” Id. The President’s
authority to prescribe procedures for military commissions was
conferred by Articles 38 and 46 of the Articles of War. Id. The
Quirin Court sustained the President’s order creating a military
commission, because “
y his Order creating the . . . Commission
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[the President] has undertaken to exercise the authority
conferred upon him by Congress . . . .” Id. at 11.
In Yamashita, the Supreme Court noted that it had “had
occasion [in Quirin] to consider at length the sources and nature
of the authority to create military commissions for the trial of
enemy combatants for offenses against the law of war,” Yamashita,
at 327 U.S. at 7, and noted:
[W]e there pointed out that Congress, in the
exercise of the power conferred upon it by
Article I, § 8 Cl. 10 of the Constitution to
‘define and punish . . . Offenses against the
Law of Nations . . .,’ of which the law of
war is a part, had by the Articles of War
[citation omitted] recognized the ‘military
commission’ appointed by military command as
it had previously existed in United States
Army practice, as an appropriate tribunal for
the trial and punishment of offenses against
the law of war.
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What was then Article 15 of the Articles of War is now
Article 21 of the Uniform Code of Military Justice, 10 U.S.C.
§ 821. It provides:
The provisions of this chapter 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.
Quirin and Yamashita make it clear that Article 21 represents
Congressional approval of the historical, traditional, nonstatutory
military commission. The language of that approval,
however, does not extend past “offenders or offenses that by
statute or by the law of war may be tried by military commissions
. . . .” 10 U.S.C. § 821.
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b. The law of war includes the Third Geneva Convention,
which requires trial by court-martial as long as
Hamdan’s POW status is in doubt.
“From the very beginning of its history this
Court has recognized and applied the law of
war as including that part of the law of
nations which prescribes, for the conduct of
war, the status, rights and duties of enemy
nations as well as of enemy individuals.”
This language is from Quirin, 317 U.S. at 27-28. The United
States has ratified the Geneva Convention Relative to the
Treatment of Prisoners of War of August 12, 1949, 6 U.S.T. 3316,
74 U.N.T.S. 135 (the Third Geneva Convention). Afghanistan is a
party to the Geneva Conventions. The Third Geneva Convention is 6
acknowledged to be part of the law of war, 10/25/04 Tr. at 55;
Military Commission Instruction No. 2, § (5)(G) (Apr. 30, 2003);
32 C.F.R. § 11.5(g), http://www.defenselink.mil/news/May2003/
d20030430milcominstno2.pdf. It is applicable by its terms in
“all cases of declared war or of any other armed conflict which
may arise between two or more of the High Contracting Parties,
even if the state of war is not recognized by one of them.”
Third Geneva Convention, art. 2. That language covers the
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hostilities in Afghanistan that were ongoing in late 2001, when
Hamdan was captured there. If Hamdan is entitled to the
protections accorded prisoners of war under the Third Geneva
Convention, one need look no farther than Article 102 for the
rule that requires his habeas petition to be granted:
A prisoner of war can be validly sentenced
only if the sentence has been pronounced by
the same courts according to the same
procedure as in the case of members of the
armed forces of the Detaining Power, and if,
furthermore, the provisions of the present
Chapter have been observed.7
The Military Commission is not such a court. Its procedures are
not such procedures.
The government does not dispute the proposition that
prisoners of war may not be tried by military tribunal. Its
position is that Hamdan is not entitled to the protections of the
Third Geneva Convention at all, and certainly not to prisoner-of-war
status, and that in any event the protections of the Third
Geneva Convention are not enforceable by way of habeas corpus.
(1) The government’s first argument that the Third
Geneva Convention does not protect Hamdan asserts that Hamdan was
captured, not in the course of a conflict between the United
States and Afghanistan, but in the course of a “separate”
conflict with al Qaeda. That argument is rejected. The
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government apparently bases the argument on a Presidential
“finding” that it claims is “not reviewable.” See Motion to
Dismiss at 33, Hicks v. Bush (D.D.C. No. 02-00299) (October 14,
2004). The finding is set forth in Memorandum from the
President, to the Vice President et al., Humane Treatment of al
Qaeda and Taliban Detainees(February 7, 2002),
http://www.library.law.pace.edu/research/020207_bushmemo.pdf,
stating that the Third Geneva Convention applies to the Taliban
detainees, but not to the al Qaeda detainees captured in
Afghanistan, because al Qaeda is not a state party to the Geneva
Conventions. Notwithstanding the President’s view that the
United States was engaged in two separate conflicts in
Afghanistan (the common public understanding is to the contrary,
see Joan Fitzpatrick, Jurisdiction of Military Commissions and
the Ambiguous War on Terrorism, 96 Am. J. Int’l. L. 345, 349
(2002) (conflict in Afghanistan was international armed conflict
in which Taliban and al Qaeda joined forces against U.S. and its
Afghan allies)), the government’s attempt to separate the Taliban
from al Qaeda for Geneva Convention purposes finds no support in
the structure of the Conventions themselves, which are triggered
by the place of the conflict, and not by what particular faction
a fighter is associated with. See Amicus Brief of General
David M. Brahms (ret.), Admiral Lee F. Gunn (ret.), Admiral
John D. Hutson (ret.), General Richard O’Meara (ret.) (Generals
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