Hamdan v. Rumsfeld - Opinion Announcement

Argument of Justice Stevens

Mr. Stevens: I have the disposition to announce in No. 05-184, Hamdan against Rumsfeld.

Petitioner, a foreign national held in custody in an American prison at Guantanamo, has been charged with one count of conspiracy to commit, offenses triable by military commission."

He concedes that a court-martial convened in accordance with the Uniform Code of Military Justice or, of course, a civilian court would have jurisdiction to try him; but he contends that the military commission convened by the President lacks such authority, because the charge does not allege a violation of the law of war, and the commission's procedures violate both the UCMJ and the Geneva Conventions.

The District Court granted him relief, the Court of Appeals reversed, and we now reverse the Court of Appeals.

Our judgment is supported by three opinions.

My opinion speaks for the Court on the jurisdictional and certain merits systems; Justice Kennedy has filed an opinion concurring in part, primarily addressing the UCMJ and Geneva Convention issues; he is joined by Justices Souter, Ginsburg and Breyer; and Justice Breyer, joined by Justices Kennedy, Souter and Ginsburg, has filed a brief concurring opinion, pointing out that the concerns expressed by our dissenting colleagues merely require the President to seek Congressional authorization for the use of the type of military commission that he has established by Executive Order.

Justice Scalia has filed a dissenting opinion addressing the jurisdictional issues; Justice Thomas has filed a dissenting opinion addressing the merits; and Justice Alito has filed a dissenting opinion explaining why he believes that the commission is a regularly constituted court under the Geneva Conventions.

The Chief Justice has taken no part in our consideration or decision of the case.

Our opinions are quite long -- mine has 73 pages -- but I will try to be brief in this summary.

First with respect to jurisdiction, after we granted review in this case, Congress enacted a statute called the Detainee Treatment Act, or DTA.

One section of the DTA addresses the jurisdiction of federal courts to consider claims brought by individuals like Hamdan, who are being detained in Guantanamo Bay and elsewhere.

The first paragraph of that jurisdictional section purports to prevent any federal court from hearing a habeas corpus petition brought by a detainee.

The other two paragraphs of the same section channel review of, "final judgments," issued by combatant status-review tribunals and military commissions to the D.C. Circuit and also defined the scope of that review.

These latter two provisions are expressly made applicable to cases that were pending on the date of enactment of the DTA -- that is, on December 31, 2005 -- but the provision repealing habeas jurisdiction is not.

Shortly after the DTA was enacted, the Government moved to dismiss Hamdan's case on the ground that the new statute deprived us of jurisdiction to consider it.

We delayed consideration of the motion pending argument on the merit, and we now deny the motion.

Congress' failure to provide that the jurisdiction-stripping section of the DTA applies to pending cases stands in stark contrast to its expressed statement that the other jurisdictional provisions included in the same section so apply.

This contrast persuasively indicates that Congress did not intend the jurisdiction-stripping provision to apply to pending cases.

That inference is confirmed by the drafting history of the DTA.

Early versions of the proposed statute would have achieved exactly the result the Government urges here.

They would have expressly made the jurisdiction-stripping provision applicable to pending cases.

Following full debate and further amendments, however, Congress removed that language.

Statements made by Senators during floor debates on the Act, not after the Act was passed, including statements by one of the sponsors of the final bill, uniformly support the view that removal of that language was intended to preserve jurisdiction over pending cases.

The Government also argues that even if we do have jurisdiction, we should abstain from considering Hamdan's claims until the military commission has convicted him of the offense with which he is charged.

For the reasons given by both the Court of Appeals and the District Court, we disagree.

The comity considerations underlying the usual rule of abstention in military cases do no apply, because Hamdan is not a member of our armed forces, and his commission is not part of a Congressionally crafted system of military justice.

In these unique circumstances, which involve a special tribunal created not by Congress, but by the Executive Branch, it is appropriate to consider at this time the jurisdictional and procedural challenges that petitioner has raised.

Turning to the merits of Hamdan's claims, we consider first whether the commission that was convened to try him had been authorized by Congress.

Although we conclude, as we did an Ex parte Quirin, that Article 21 of the UCMJ recognizes the President's power to convene military commissions in some circumstances, we note, as we did in Quirin, that that power is carefully circumscribed.

Article 21 incorporates the common law governing military commissions and conditions the President's power to convene such commissions on compliance with the law of war, which includes international instruments like the Geneva Conventions.

The President also must comply with any applicable requirements of the UCMJ itself.

One article of the UCMJ, Article 36, is particularly relevant.

Article 36(a) requires that any rules the President adopts to govern proceedings before courts-martial and military commissions alike be consistent with other provisions of the UCMJ.

Among these other provisions is a requirement that the accused be present during most proceedings.

It is undisputed that the procedures adopted to try Hamdan, whose trial was in process when this case began, allow the accused and his civilian counsel to be excluded from proceedings and to be prohibited from seeing certain evidence.

These and other departures from courts-martial procedures, including the failure to adopt court-martial rules governing the admissibility of evidence, may not technically be inconsistent with other provisions of the UCMJ.

Technical consistency with the UCMJ itself is not the only requirement under Article 36, however.

Under Subsection (b) of that article, the rules for military commissions and court-martials must be uniform insofar as practicable.

This uniformity requirement, which was added to the UCMJ after World War II and our decisions in Quirin and Yamashita, codifies the historical practice of using court-martial proceedings when military commissions are being used absent some exigency.

The admitted deviations from court-martial proceedings in this case are not justified by any evident impracticability.

There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the rules of evidence that apply in courts-martial.

The danger posed by international terrorists, while certainly severe, does not by itself justify dispensing with usual procedures.

Because the procedures adopted to try Hamdan do not comply with the uniformity requirement of Article 36(b), we conclude that the commission lacks power to proceed.

For similar reasons, the commission lacks power to proceed under the Geneva Conventions, which are part of the law of war under Article 21 of the UCMJ.

Common Article 3 of those conventions, which we hold applicable to this case, prohibits the passing of sentences without previous judgment by a regularly constituted court, affording all the judicial guarantees recognized as indispensable by civilized peoples.

As Justice Kennedy explains in his separate writing, the regular military courts in our system are the courts-martial established by Congressional statute.

Of course, Articles 21 and 36 of the UCMJ envision the use of military commissions, but they also place constraints on that use.

At a minimum, a military commission specially convened by the President can be regularly constituted only if some practical need explains deviations from court-martial practice.

As I have said and as Justice Kennedy elaborates further in his opinion, no such need has been demonstrated here.

In a part of the opinion that Justice Kennedy did not join, because he regards the discussion of the merits in his opinion in the portions of the Court opinion that he has joined as sufficient to support our judgment, we conclude that the commission violates Common Article 3 in another respect, because its rules permit exclusion of the accused from his own trial and prevention of his access to evidence against him.

At least absent some expressed Congressional provision to the contrary, customary international law requires that a defendant be permitted to see and hear the evidence against him.

Finally, in another part of the opinion that Justice Kennedy did not join, we conclude that the offense with which Hamdan has been charged, conspiracy to commit acts of terrorism, is not an offense triable by this kind of military commission.

Military commissions historically have taken three forms: first, they have been used to stand in for civilian courts and to try civilian crimes in territory governed by military law when the civilian courts are closed.

They were so used during the Civil War, for example; second, they have been used, again as stand-in, for civilian courts in occupied territory, such as Germany after World War II; third, they have been used to try violation against the law of war during time of war, typically when courts-martial lack jurisdiction to try a particular defendant or offense.

Hamdan's commission is of the third type.

Therefore, in the absence of express statutory authority, it can try only those crimes that according to the common law violate the law of war.

In such cases, neither the elements of the offense nor the permissible punishment is defined by any statute.

For that reason, commentators have generally described this type of military commission as utterly different from the other two.

Conspiracy is, of course, a crime under federal statute and under the UCMJ; but no treaty or domestic statute makes conspiracy a war crime, and the historical materials from this country, as well as international sources, confirmed that it is not a war crime under the common law of war.

The Nuremberg judges, for example, pointedly refused to recognize conspiracy to commit war crimes as a standalone war crime.

The leading treatise on military law in this country does not list conspiracy of any kind as a violation of the law of war and says that law of war commissions may try people only for committing or attempting to commit overt acts that violate the law of war; and incidentally, none of the overt acts that Hamdan allegedly committed acting as Osama bin Laden's bodyguard and driver, transporting weapons and receiving training, is itself a violation of the law of war.

It is not enough, in our view, to identify a few instances in which a person has arguably been charged with or convicted of conspiracy by a law of war commission.

We must be cautious in developing and extending the common law of crimes.

That caution is all the more critical when the project is to discern the common law as developed and not by courts, but by military officers.

Under these circumstances, the precedent establishing a particular offense's status as a violation of the law of war must in our judgment be clear and unambiguous.

That is not the case here.

Because the jurisdiction of the law of war military commission stands and falls with the validity of the charge, we conclude that the defect in the charge against petitioner precludes this military commission from proceeding.

As Justice Breyer points out in his separate concurrence, our decision today is a limited one.

We decide, in effect, that Congress has denied the President the legislative authority to create this military commission.

Nothing prevents the President from returning to Congress to seek the authority he believes necessary, and no emergency stands in the way of such an effort.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

Argument of Justice Scalia

Mr. Scalia: I have a dissenting opinion, which is a mere 24 pages.

It relates, however, solely to the issue of jurisdiction.

In my view, it is clear that this Court has no jurisdiction to pronounce the opinion it has released today.

It is easy to explain why.

On December 30th of last year, Congress enacted the Detainee Treatment Act, or DTA.

This statute provides that as of last December 30, "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 at Guantanamo Bay."

That language is perfectly clear and unambiguous.

As of last December 30, no court or justice, including this Court and these nine Justices, had jurisdiction to consider the habeas petition of Hamdan, who is an alien detained at Guantanamo Bay.

To make what is clear doubly-clear, there is a long, long line of Supreme Court precedent holding that a statute eliminating jurisdiction applies to pending cases unless it contains an explicit reservation saying that it does not, which this statute does not contain.

To quote one of those cases, "This rule, that when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law, has been adhered to consistently by this Court."

Today's is the first case in American history, and perhaps Anglo-American history, in which a court has failed to apply to pending cases a statute ousting jurisdiction that did not contain an explicit exception for pending cases, and the cases coming out the other way are legion.

The Court today ignores this rule and finds that the plain language of the statute does not mean what it says on the basis of the flimsiest of reasons.

It relies first on a so-called "negative inference", drawn from the fact that the DTA explicitly says that two other provisions are applicable to pending cases.

It does not explicitly say that this provision is.

There is no such negative inference for a number of reasons, including most prominently the fact that there was good reason to make the inclusion of pending cases explicit for these other provisions, which conferred new jurisdiction rather than eliminating old jurisdiction and thus did not benefit from the invariable rule of inclusion applicable to elimination of jurisdiction.

Moreover -- and this is truly ironic -- by finding a negative inference, the Court makes a nullity of the very provisions from which the negative inference is drawn.

Those provisions confer exclusive jurisdiction over certain categories of Guantanamo cases upon the United States Court of Appeals for the District of Columbia Circuit, explicitly effective with regardto pending cases.

But when the Court today finds that the ouster of the jurisdiction of habeas courts is not effective with regard to pending cases, that prescribed exclusivity of these other two provisions is utterly destroyed.

Habeas courts now retain jurisdiction over every single habeas petition of a Guantanamo detainee that was pending last December 30, when the DTA was enacted.

There are hundreds of such petitions; so that today's jurisdictional decision ensures that Guantanamo litigation will continue in district courts for many years to come.

The Court tries to find a fig leaf for its interpretation of the DTA in the statute's legislative history.

This attempt results in one of our most unfortunate uses of legislative history in recent decades, and that is saying something.

Not only is the Court's use of the floor debate openly selective, there are statements to the contrary of the ones it relies upon.

But the fragments of Senatorial speeches that it relies upon were quite clearly deliberately prepared by the staff of tiny handful of Senators to be cited in the briefs of this very litigation, which the Senate knew was pending when it enacted the bill.

What makes matters even worse, however, is that even we had habeas jurisdiction over this case, under ordinary principles of sound equitable discretion -- habeas is an equitable remedy -- we would normally not exercise that jurisdiction.

Under the DTA, every single one of Hamdan's claims will receive full consideration by Article 3 courts, once he has exhausted his military and the Executive Branch appeals.

In the past, we have abstained from interfering with ongoing court-martial proceedings, even though we had jurisdiction, reserving consideration of objections to later judicial review.

In a case called Councilman, we abstained from interfering with ongoing military proceedings relating to such a relatively insignificant matter as prosecution for a serviceman's possession of marijuana.

Today, by contrast, the Court rushes forward to uphold an unprecedented injunction against ongoing military commission proceedings that relate to a far more serious charge, namely, that Hamdan joined and actively abetted the murderous conspiracy that slaughtered thousands of American civilians without warning on September 11, 2001.

Our interference in this case over the Executive's objection creates significant and wholly gratuitous inter-branch conflict in an area where we have no expertise.

The most notable feature of today's principle opinion is that it brushes aside one after another long-settled doctrine in order to reach its desired result.

I have spoken only of doctrines pertaining to jurisdiction.

Justice Thomas' opinion, which I join and which he will describe, speaks to the merits.

When all of these ignored doctrines on jurisdiction and on the merits are combined, they form an impressive list.

They include the rule that repeals of jurisdiction apply to pending cases; the rule that legislative history and oblique structural references cannot be used to distort the unambiguous words of a statute; the rule that we should avoid unnecessary conflict with the Executive, especially in areas where his expertise is maximal and ours is minimal, if not nonexistent; the rule that determinations about the nature and scope of an armed conflict are solely committed to the Executive; the rule that the offenses chargeable before a military commission are determined with reference to the experience of our wars and with great deference to the Executive; the rule that the President has virtually unfettered authority to prescribe the jurisdiction and procedure of military commissions; the rule that the Executive's interpretation of a treaty provision is entitled to great weight; and the rule that Constitutional claims based on contingent events are unripe, especially when they challenge an anticipated action of the political branches that may never occur.

Our past practice has always been to err on the side of caution and deference to the Executive in cases involving the prosecution of warfare and judgments about the appropriate use of military power, including the power to try enemy captives.

Today, that edifice of caution and deference comes crashing down.

The Court takes on a new role as active manager of the details of military conflicts.

We bring neither lawful jurisdiction nor competence to the performance of this role.

For all these reasons, I vigorously dissent.

Argument of Justice Thomas

Mr. Thomas: I have filed a dissent in this case, which Justice Scalia has joined and which Justice Alito has joined in part.

In 15 terms on this Court, I have never read a dissent from the Bench; but today's requires that I do so.

A mere ten days ago, each member of today's plurality deferred to the Army Corps of Engineers highly questionable determination that storm drains, roadside ditches and desert washes are navigable waters or, rather, waters of the United States.

Today, when there is much more stake than ephemeral pools of water, the plurality and the Court repeatedly refuse to defer to the wartime judgment of the President himself.

The Court's determination that it is qualified to pass on the military necessity of the Commander in Chief's decision to employ a particular form of force against our enemies is unprecedented, and it is unsupported by any authoritative source of law, and as specifically refuted by every relevant historical example.

Accordingly, I respectfully dissent.

Today, we review a core exercise of the President's Commander in Chief authority, one expressly approved by Congress.

The President's decision to try petitioner for war crimes before a military commission derives support not only from the Uniform Code of Military Justice, which expressly recognizes the President's prerogative to convene military commissions, but also from Congress's recent authorization permitting the President to use, "all necessary and appropriate force," against our enemies in the war on terrorism.

Indeed, in the Hamdi case, the majority of this Court concluded that Congress's authorization to use military force authorized the trial of unlawful combatants like Hamdan.

Thus, as this Court has held in similar contexts, the President's actions in this case are, , "supported by the strongest presumptions and the widest latitude of judicial interpretation."

But today, far from affording the President the deference he is due, the plurality and the Court second-guess his judgments at every step.

The plurality would hold that petitioner has not been charged with an offense triable before a military commission.

This conclusion is unsupportable.

Petitioner has been charged both with joining a war-criminal enterprise and with conspiring with Al-Qaeda to commit various war crimes.

Each of these offenses provides an independent basis for petitioner's trial by military commission.

The crime of unlawful membership in a war-criminal organization was repeatedly tried before Civil War military commissions and before the American Military Tribunal in Nuremberg and is recognized in all of the relevant treatises as a crime against the laws of war.

Even if there were some doubt as to whether petitioner could be tried simply for joining Al-Qaeda, it is undisputed that it is a crime against the laws of war for an unlawful combatant to provide the enemy with arms, transportation and other services.

Petitioner has been charged with supplying such provision and services to Al-Qaeda's top leadership, and thus the President has the authority to try him on these grounds alone.

In addition, the charge that petitioner conspired with members of Al-Qaeda to violate the laws of war is triable by military commission.

Conspiracy to violate the laws of war was the sole charge in the highest profiled military commission trial in the Civil War, the military commission trial of the Lincoln conspirators, and was also charged in the highest profiled case in World War II, the military commission trial of the Quirin saboteurs.

Moreover, the orders establishing military-commission jurisdiction in those conflicts expressly provided that conspiracy to violate the laws of war was a cognizable offense, and the treatises were filled with examples of military-commission trials on the charge of conspiracy.

The Court's conclusion that the Uniform Code of Military Justice requires the President to employ the same procedures in petitioner's military commission as would be employed in court-martial is similarly unpersuasive.

While the Court acknowledges that Article 21 of that Code authorizes the President to convene military commissions in certain circumstances, it fails to acknowledge that this Court has previously held that Article 21 preserves the common-law war status of military commissions, including the President's authority to prescribe their structure and procedures in the manner he sees fit.

Instead, the Court concludes that Article 36(b) of the Code requires procedural parity between military commissions and courts-martial.

But Article 36(b) does not mention military commissions and, thus, cannot plausibly be read to overrule the settled meaning of Article 21 as preserving the President's unfettered authority to prescribe military-commission procedures.

Rather, Article 36(b) merely implements the primary purpose of the Code, namely, to establish procedural uniformity among the different branches of our armed-force services.

It does not require procedural uniformity among different tribunals; indeed, the Code itself authorizes different tribunals to employ different procedures.

The Court fares no better in its analysis of the Common Article 3 of the Geneva Convention.

As an initial matter, the Court's determination that the substantive provisions of the Geneva Convention are judicially enforceable is foreclosed by Johnson v. Eisentrager, which held that the Geneva Conventions provide an exclusive diplomatic enforcement scheme.

The Court attempts to escape this holding by concluding that Article 21 of the Uniform Code of Military Justice renders the Geneva Conventions judicially enforceable; but that position is untenable, as the military commission in Eisentrager was also subject to the requirement of Article 21.

Moreover, even if Common Article 3 were judicially enforceable, the President has determined that it does not apply to the present conflict, and that determination is entitled to deference.

Common Article 3, by its terms, applies only to, "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties."

The President has determined that Common Article 3 does not apply, because the present conflict is of an international character, as our enemy is dispersed throughout several nations; that is, occurring in territories of more than one of the High Contracting Parties.

The Court does not suggest that the President's interpretation is implausible or even unreasonable; rather, it offers its own admittedly plausible interpretation.

But under our precedents, we must defer to the President's reasonable interpretation of a treaty, particularly when that determination pertains to the nature of a conflict.

The Court does not so much as acknowledge these precedents.

Lastly, assuming for the sake of argument the judicial enforceability of Common Article 3, military commissions satisfy the requirement of that provision.

Military commissions are plainly, regularly constituted, as they have been constituted in numerous conflicts over the past 150 years, and have been upheld on several occasions by this Court.

Moreover, the procedures that govern petitioner's commission entitle him to the judicial guarantees recognized as indispensable by, to borrow the language of Common Article 3, "civilized peoples;" that is, he is presumed innocent, may not be convicted without proof beyond a reasonable doubt, has a right to remain silent and may confront witnesses.

This is the straightforward case involving fundamental principles and controlling precedents.

The Court of Appeals, by adhering to these principles and precedents, unanimously rejected petitioner's claims in a mere 18 pages.

This Court should have done likewise.