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Encyclopedia > Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Supreme Court of the United States
Argued March 28, 2006
Decided June 29, 2006
Full case name: Salim Ahmed Hamdan, Petitioner v. Donald H. Rumsfeld, United States Secretary of Defense; John D. Altenburg, Jr., Appointing Authority for Military Commissions, Department of Defense; Brigadier General Thomas L. Hemingway, Legal Advisor to the Appointing Authority for Military Commissions; Brigadier General Jay Hood, Commander Joint Task Force, Guantanamo, Camp Echo, Guantanamo Bay, Cuba; George W. Bush, President of the United States
Docket #: 05-184
Citations: 548 U.S. ___; 126 S. Ct. 2749; 165 L. Ed. 2d 723; 2006 U.S. LEXIS 5185; 19 Fla. L. Weekly Fed. S 452
Prior history: Petition for habeas corpus granted, 344 F. Supp. 2d 152 (D.D.C. 2004); reversed, 415 F.3d 33 (D.C. Cir., 2005); cert. granted, 126 S. Ct. 622 (2006)
Argument: Link to Oral Argument
Holding
Military commission to try Plaintiff is illegal and lacking the protections required under the Geneva Conventions and United States Uniform Code of Military Justice.
Court membership
Chief Justice: John Roberts
Associate Justices: John Paul Stevens, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito
Case opinions
Majority by: Stevens
Joined by: Souter, Ginsburg, Breyer; Kennedy (except Parts V, VI-D-iv)
Concurrence by: Breyer
Joined by: Kennedy, Souter, Ginsburg
Concurrence by: Kennedy
Joined by: Souter, Ginsburg, Breyer (only as to I, II)
Dissent by: Scalia
Joined by: Thomas, Alito
Dissent by: Thomas
Joined by: Scalia; Alito (all but I, II-C-1, III-B-2)
Dissent by: Alito
Joined by: Scalia, Thomas (only as to I – III)
Roberts took no part in the consideration or decision of the case.
Laws applied
U.S. Const.; Geneva Conventions, Common Arts. 2 & 3; UCMJ, Arts. 21 & 36; Detainee Treatment Act of 2005 (DTA) §1005; AUMF

Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949."[1] Specifically, the ruling says that Common Article 3 of the Third Geneva Convention was violated. Holding U.S. citizens designated as enemy combatants by the Executive Branch have a right to challenge their detainment under the Due Process Clause. ... Image File history File links Seal_of_the_United_States_Supreme_Court. ... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  US Government Portal      The Supreme Court of the United States (sometimes colloquially referred to by the... In common law countries, habeas corpus () (Latin: [We command that] you have the body) is the name of a legal action, or writ, through which a person can seek relief from unlawful detention of themselves or another person. ... The Federal Supplement is a case law reporter published by West Publishing in the United States that includes select opinions of the United States district courts. ... The United States District Court for the District of Columbia is the United States District Court that hears cases originating in the District of Columbia under Federal law. ... The Federal Reporter is a case law reporter in the United States that is published by West Publishing. ... The United States Court of Appeals for the District of Columbia Circuit, known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. ... Certiorari (pronunciation: sÉ™r-sh(Ä“-)É™-ˈrer-Ä“, -ˈrär-Ä“, -ˈra-rÄ“) is a legal term in Roman, English and American law referring to a type of writ seeking judicial review. ... This article is about the Chief Justice of the United States. ... John Paul Stevens (born April 20, 1920) is currently the most senior Associate Justice of the Supreme Court of the United States. ... Antonin Gregory Scalia (born March 11, 1936[1]) is an American jurist and the second most senior Associate Justice of the Supreme Court of the United States. ... This article is about the Associate Justice of the U.S. Supreme Court. ... David Hackett Souter (born September 17, 1939) has been an Associate Justice of the Supreme Court of the United States since 1990. ... Clarence Thomas (born June 23, 1948) is an American jurist and has been an Associate Justice of the Supreme Court of the United States since 1991. ... Ruth Joan Bader Ginsburg (born March 15, 1933, Brooklyn, New York) is an Associate Justice on the U.S. Supreme Court. ... Stephen Gerald Breyer (born August 15, 1938) is an American attorney, political figure, and jurist. ... Samuel Anthony Alito, Jr. ... Wikisource has original text related to this article: The United States Constitution The United States Constitution is the supreme law of the United States of America. ... Original document. ... The Uniform Code of Military Justice (UCMJ) is the foundation of military law in the United States. ... Note: AUMF may refer to several authorizations granted by the United States Congress. ... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in common law countries such as the United States, England and Wales, Ireland, Canada, New Zealand, Hong Kong, Australia and India to uniquely identify the location of past court... Year 2006 (MMVI) was a common year starting on Sunday of the Gregorian calendar. ... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  US Government Portal      The Supreme Court of the United States (sometimes colloquially referred to by the... Military commissions are among procedures planned by the U.S. Bush administration to deal with detainees it links to al-Qaeda. ... The Bush administration includes President George W. Bush, Vice President Richard Cheney, Bushs Cabinet, and other select officials and advisors. ... Detainees upon arrival at Camp X-Ray, January 2002 Guantánamo Bay detainment camp serves as a joint military prison and interrogation center under the leadership of Joint Task Force Guantanamo (JTF-GTMO), has occupied a portion of the United States Navys base at Guantanamo Bay, Cuba since 2002. ... The Uniform Code of Military Justice (UCMJ), the foundation of military law in the United States, consists of Title 10, Chapter 47 of the United States Code. ... Original document. ...


The case considered whether the United States Congress may pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place, whether the special military commissions that had been set up violated federal law (including the Uniform Code of Military Justice and treaty obligations), and whether courts can enforce the articles of the 1949 Geneva Convention.[2] Type Bicameral Houses Senate House of Representatives President of the Senate President pro tempore Dick Cheney, (R) since January 20, 2001 Robert C. Byrd, (D) since January 4, 2007 Speaker of the House Nancy Pelosi, (D) since January 4, 2007 Members 535 plus 4 Delegates and 1 Resident Commissioner Political... The Uniform Code of Military Justice (UCMJ) is the foundation of military law in the United States. ... Year 1949 (MCMXLIX) was a common year starting on Saturday (link will display the full calendar) of the Gregorian calendar. ... Original document. ...


An unusual aspect of the case was an amicus brief filed by Senators Jon Kyl and Lindsey Graham, which presented an “extensive colloquy” added to the Congressional record as evidence that "Congress was aware" that the Detainee Treatment Act would strip the Supreme Court of jurisdiction to hear cases brought by the Guantanamo detainees. Because these statements were not actually included in the Dec. 21 debate, some have argued this was an attempt to mislead the court.[3] Amicus curiae (plural amici curiae) is a legal Latin phrase, literally translated as friend of the court, that refers to a person or entity that is not a party to a case that volunteers to offer information on a point of law or some other aspect of the case to... This page is about the current Arizona Senator; for his father, a U.S. Representative from Iowa, see John Kyl; for a U.S. Representative from Mississippi with a similar name, see John Kyle. ... Lindsey Olin Graham (born July 9, 1955) is an American politician from South Carolina. ... The McCain Detainee Amendment was an amendment to the United States Senate Department of Defense Authorization bill, commonly referred to as the Amendment on (1) the Army Field Manual and (2) Cruel, Inhumane, Degrading Treatment, amendment #1977 and also known as the McCain Amendment 1977. ... Detainees upon arrival at Camp X-Ray, January 2002 Guantánamo Bay detainment camp serves as a joint military prison and interrogation center under the leadership of Joint Task Force Guantanamo (JTF-GTMO), has occupied a portion of the United States Navys base at Guantanamo Bay, Cuba since 2002. ...


On June 29, 2006, the Court issued a 5-3 decision holding that it had jurisdiction, that the federal government did not have authority to set up these particular military commissions, and that the military commissions were illegal under both the Uniform Code of Military Justice and the Geneva Convention.[4] is the 180th day of the year (181st in leap years) in the Gregorian calendar. ... Year 2006 (MMVI) was a common year starting on Sunday of the Gregorian calendar. ... The Uniform Code of Military Justice (UCMJ) is the foundation of military law in the United States. ...


Just days earlier, Hamdan's defense attorney Lieutenant Commander Charles Swift had been named one of the 100 most influential lawyers in America[5] by the National Law Journal. But in October, the Navy announced plans to dismiss him under its "up or out" promotion policy.[6][7][8] Charles D. Swift is a Lieutenant Commander (LCDR) in the U.S. Navy, Judge Advocate Generals Corps. ...

Contents

Background

The plaintiff in this case is Salim Ahmed Hamdan, a citizen of Yemen and a driver formerly employed to work on an agricultural project that Osama bin Laden created to support the people of Afghanistan. Hamdan was captured by militia forces during the invasion of Afghanistan and turned over to the United States, then sent to the Guantanamo Bay Naval Base in Cuba. In July 2004, he was charged with conspiracy to commit terrorism,[9] and the Bush administration made arrangements to try him before a military commission authorized under Military Commission Order No. 1 of March 21, 2002. Hamdan filed a petition for a writ of habeas corpus, arguing that the military commission convened to try him was illegal and lacked the protections required under the Geneva Conventions and United States Uniform Code of Military Justice. Following the Supreme Court ruling on another case, Hamdi v. Rumsfeld, Hamdan was granted a review before the Combatant Status Review Tribunal, which determined that he was eligible for detention by the United States as an enemy combatant or person of interest.[2] Salim Ahmed Hamdan (born 1970) is a Yemeni, captured during the invasion of Afghanistan, and imprisoned at Guantanamo Bay. ... Osama bin Muhammad bin Awad bin Laden (Arabic: ‎; born March 10, 1957[1]), most often mentioned as Osama bin Laden or Usama bin Laden, is a Saudi Arabian militant Islamist and is widely believed to be one of the founders of the organization called al-Qaeda. ... Combatants Taliban al-Qaeda IMU Hezbi Islami Afghanistan Northern Alliance ISAF Image:Nato 1. ... , For other titular locales, see Guantánamo (disambiguation). ... Year 2004 (MMIV) was a leap year starting on Thursday of the Gregorian calendar. ... Military commissions are among procedures planned by the U.S. Bush administration to deal with detainees it links to al-Qaeda. ... This Order came into focus in the June, 2006 United States Supreme Court ruling against Presidentially approved military commission trials at Guantanamo Bay. ... In common law jurisdictions, habeas corpus, or more precisely habeas corpus ad subjiciendum, is a prerogative writ which requires the addressee to produce in court a person in its custody and justify his or her imprisonment. ... Holding U.S. citizens designated as enemy combatants by the Executive Branch have a right to challenge their detainment under the Due Process Clause. ... Wikisource has original text related to this article: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism Wikisource has original text related to this article: Declaration of Stephen Abraham, Lieutenant Colonel, United States Army Reserve, June 14th, 2007 This is the trailer where the Combatant Status... An enemy combatant has historically referred to members of the armed forces of the state with which another state is at war. ...


The defendants in this case include many United States government officials allegedly responsible for Hamdan's detention; as is customary, the short name of the case includes only the first-named defendant, then-Secretary of Defense Donald Rumsfeld. The United States Secretary of Defense is the head of the United States Department of Defense, concerned with the armed services and The Secretary is a member of the Presidents Cabinet. ... Donald Henry Rumsfeld (born July 9, 1932) is a U.S. Republican politician and businessman, who was the 13th Secretary of Defense under President Gerald Ford from 1975 to 1977, and the 21st Secretary of Defense under President George W. Bush from 2001 to 2006. ...


District and Appeals Court rulings

After reviewing Hamdan's habeas petition, Judge James Robertson of the United States District Court for the District of Columbia ruled in Hamdan's favor, finding that the United States could not hold a military commission unless it was first shown that the detainee was a prisoner of war.[10][11][12] Judge Robertson James Robertson (born 1938) is a judge for the United States District Court for the District of Columbia. ... The United States District Court for the District of Columbia is the United States District Court that hears cases originating in the District of Columbia under Federal law. ... Geneva Convention definition A prisoner of war (POW) is a soldier, sailor, airman, or marine who is imprisoned by an enemy power during or immediately after an armed conflict. ...


On July 15, 2005, a United States Court of Appeals for the District of Columbia Circuit three-judge panel of Arthur Raymond Randolph, John G. Roberts, Jr. and Stephen F. Williams, unanimously reversed the decision of the District Court.[13] Judge Randolph, who wrote the decision, cited the following reasons for the legality of the military commission: is the 196th day of the year (197th in leap years) in the Gregorian calendar. ... Year 2005 (MMV) was a common year starting on Saturday (link displays full calendar) of the Gregorian calendar. ... The United States Court of Appeals for the District of Columbia Circuit, known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. ... Arthur Raymond Randolph (born 1943) is a judge on the United States Court of Appeals for the District of Columbia Circuit. ... This article is about the Chief Justice of the United States. ... Judge Stephen F. Williams was appointed to the United States Court of Appeals for the District of Columbia Circuit in June 1986, and took senior status in September 2001. ...

  1. Military commissions are legitimate forums to try enemy combatants because they have been approved by Congress.
  2. The Geneva Convention is a treaty between nations and as such it does not confer individual rights and remedies.
  3. Even if the Geneva Convention could be enforced in U.S. courts, it would not be of assistance to Hamdan at the time because, for a conflict such as the war against al-Qaeda that is not between two countries, it guarantees only a certain standard of judicial procedure—a "competent tribunal"—without speaking to the jurisdiction in which the prisoner must be tried.
  4. Under the terms of the Geneva Convention, al Qaeda and its members are not covered.

In addition, they ruled that the U.S. president has the constitutional authority to try Hamdan because Congress authorized such activity by statute. They also stated that the judicial branch of the United States government cannot enforce the Convention, thus invalidating Hamdan's argument that he cannot be tried until after his prisoner of war status is determined.[2] A combatant is a person who takes a direct part in the hostilities of an armed conflict who upon capture qualifies for prisoner of war under the Third Geneva Convention (GCIII). ... Type Bicameral Houses Senate House of Representatives President of the Senate President pro tempore Dick Cheney, (R) since January 20, 2001 Robert C. Byrd, (D) since January 4, 2007 Speaker of the House Nancy Pelosi, (D) since January 4, 2007 Members 535 plus 4 Delegates and 1 Resident Commissioner Political... Al-Qaeda (Arabic: القاعدة, the foundation or the base) is the name given to a worldwide network of militant Islamist organizations under the leadership of Osama bin Laden. ... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  US Government Portal      For other uses, see President of the United States (disambiguation). ... The Statute of Grand Duchy of Lithuania A statute is a formal, written law of a country or state, written and enacted by its legislative authority, perhaps to then be ratified by the highest executive in the government, and finally published. ...


The Supreme Court's decision

On 7 November 2005, the Supreme Court issued a writ of certiorari to hear the case.[14] The petition was filed on behalf of Hamdan by Neal Katyal of Georgetown University Law Center and Seattle University School of Law alumnus Lt. Commander Charles Swift of the U.S. Navy. is the 311th day of the year (312th in leap years) in the Gregorian calendar. ... Year 2005 (MMV) was a common year starting on Saturday (link displays full calendar) of the Gregorian calendar. ... Certiorari (pronunciation: sər-sh(ē-)ə-ˈrer-ē, -ˈrär-ē, -ˈra-rē) is a legal term in Roman, English and American law referring to a type of writ seeking judicial review. ... Neal Katyal is the John Carroll Professor of Law at Georgetown University Law School. ... The schools original sign, preserved on the north quad of the present-day campus. ... Centennial Fountain, designed by George Tsutakawa. ... Charles D. Swift is a Lieutenant Commander (LCDR) in the U.S. Navy, Judge Advocate Generals Corps. ... USN redirects here. ...


The case was argued before the court on 28 March 2006. Katyal argued on behalf of Hamdan, and Paul Clement, the Solicitor General of the United States, argued on behalf of the government.[15] Chief Justice Roberts recused himself because he had previously ruled on this case as part of the three judge panel on the United States Court of Appeals for the District of Columbia Circuit. Critics called for Justice Antonin Scalia to recuse himself, since he had made allegedly improper comments about the decision of the case prior to hearing oral arguments ("I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy"),[16] but he chose not to do so. is the 87th day of the year (88th in leap years) in the Gregorian calendar. ... Year 2006 (MMVI) was a common year starting on Sunday of the Gregorian calendar. ... This article does not cite any references or sources. ... The United States Solicitor General is the individual appointed to argue for the Government of the United States in front of the Supreme Court of the United States, when the government is party to a case. ... This article is about the Chief Justice of the United States. ... The United States Court of Appeals for the District of Columbia Circuit, known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. ... Antonin Gregory Scalia (born March 11, 1936[1]) is an American jurist and the second most senior Associate Justice of the Supreme Court of the United States. ...


The Supreme Court announced its decision on 29 June 2006. The Court reversed the ruling of the Court of Appeals, holding that President Bush did not have authority to set up the war crimes tribunals and finding the special military commissions illegal under both military justice law and the Geneva Convention.[17][18] is the 180th day of the year (181st in leap years) in the Gregorian calendar. ... Year 2006 (MMVI) was a common year starting on Sunday of the Gregorian calendar. ...


Stevens' opinion for the Court

Justice Stevens, the author of the Court's opinion.
Justice Stevens, the author of the Court's opinion.

Associate Justice John Paul Stevens wrote the opinion for the Court, which commanded a majority only in part. Image File history File linksMetadata John_Paul_Stevens,_SCOTUS_photo_portrait. ... Image File history File linksMetadata John_Paul_Stevens,_SCOTUS_photo_portrait. ... Associate Justice or Puisne (pronounced puny) Justice is the title for a member of a judicial panel who is not the Chief Justice. ... John Paul Stevens (born April 20, 1920) is currently the most senior Associate Justice of the Supreme Court of the United States. ...


The Stevens opinion began with the issue of jurisdiction, denying the U.S. government's motion to dismiss under Section 1005 of the Detainee Treatment Act of 2005 (DTA), which gave the D.C. Circuit Court of Appeals "exclusive" jurisdiction to review decisions of cases being tried before military commissions. Congress did not include language in the DTA that might have precluded Supreme Court jurisdiction, making the government's argument to the Court unpersuasive. The government's argument that Schlesinger v. Councilman, 420 U.S. 738 (1975), precludes Supreme Court review was similarly rejected. Councilman applied to a member of the U.S. military who was being tried before a military "court-martial." In contrast, Hamdan is not a member of the U.S. military, and would be tried before a military "commission," not a court-martial. To the court, the more persuasive precedent was Ex parte Quirin, in which the court recognized its duty to enforce relevant Constitutional protections by convening a special Term and expediting review of a trial by military convention. The opinion explicitly stated that, because DTA did not bar it from considering the petition, it was unnecessary to decide whether laws unconditionally barring habeas corpus petitions would unconstitutionally violate the Suspension Clause. This article does not cite any references or sources. ... A legal motion is a procedural device in law to bring a limited but contested matter before a court for decision. ... The McCain Detainee Amendment is a proposed amendment to the United States Senate Department of Defense Authorization bill, commonly referred to as the Amendment on (1) the Army Field Manual and (2) Cruel, Inhumane, Degrading Treatment, amendment #1977 and also known as the McCain Amendment 1977. ... Holding Court membership Chief Justice: Warren E. Burger Associate Justices: William O. Douglas, William J. Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis Franklin Powell, Jr. ... Courts-martial in the United States are criminal trials conducted by the military of the United States. ... Holding The Court upheld the jurisdiction of a United States military tribunal over the trial of several German saboteurs in the United States. ... The Suspension Clause is clause two of section nine of Article One of the United States Constitution. ...


The opinion next addressed the substantive issues of the case. It explicitly did not decide whether the President possessed the Constitutional power to convene military commissions like the one created to try Hamdan. Even if he possessed such power, those tribunals would either have to be sanctioned by the "laws of war," as codified by Congress in Article 21 of the Uniform Code of Military Justice (UCMJ), or authorized by statute. As to the statutory authorization, there is nothing in the Authorization for Use of Military Force (AUMF) "even hinting" at expanding the President's war powers beyond those enumerated in Art. 21. Instead, the AUMF, the UCMJ, and the DTA "at most acknowledge" the President's authority to convene military commissions only where justified by the exigencies of war, but still operating within the laws of war. The Uniform Code of Military Justice (UCMJ) is the foundation of military law in the United States. ... Note: AUMF may refer to several authorizations granted by the United States Congress. ...


As to the laws of war, to the majority these necessarily include the UCMJ and the Geneva Conventions, each of which require more protections than the military commission provides. The UCMJ, Art. 36 (b), which requires that rules applied in courts-martial and military commissions be "uniform insofar as practicable." Stevens found several substantial deviations, including: The two parts of the laws of war (or Law of Armed Conflict (LOAC)): Law concerning acceptable practices while engaged in war, like the Geneva Conventions, is called jus in bello; while law concerning allowable justifications for armed force is called jus ad bellum. ... Original document. ...

  • The defendant and the defendant's attorney may be forbidden to view certain evidence used against the defendant; the defendant's attorney may be forbidden to discuss certain evidence with the defendant;
  • Evidence judged to have any probative value may be admitted, including hearsay, unsworn live testimony, and statements gathered through torture; and
  • Appeals are not heard by courts, but only within the Executive Branch (with an exception not here relevant).

These deviations made the commissions violate the UCMJ. Hearsay may refer to: Hearsay in English Law and Hearsay in United States law, a legal principle concerning the admission of evidence through repetition of out-of-court statements HearSay, a British pop group Category: ...


The majority also found that the procedures in question violate the "at least" applicable Common Article 3 of the Geneva Conventions. It found that the D.C. Court of Appeals erred in concluding that the Conventions did not apply:

  1. It erroneously relied on Johnson v. Eisentrager, which does not legally control in Hamdan's case because there was then no deviation between the procedures used in the tribunal and those used in courts-martial;
  2. It erroneously ruled that the Geneva Conventions do not apply because Art. 3 affords minimal protection to combatants "in the territory of" a signatory; and
  3. Those minimal protections include being tried by a "regularly constituted court," which the military commission is not.

Because the military commission does not meet the requirements of the Uniform Code of Military Justice or of the Geneva Convention, it violates the laws of war and therefore cannot be used to try Hamdan. Johnson v. ...


The Court did not hear the question that had decided the district court opinion, namely that Hamdan was entitled to a GCIII Art. 5 hearing instead of a Combatant Status Review Tribunal. Wikisource has original text related to this article: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism Wikisource has original text related to this article: Declaration of Stephen Abraham, Lieutenant Colonel, United States Army Reserve, June 14th, 2007 This is the trailer where the Combatant Status...

Hamdan observes that Article 5 of the Third Geneva Convention requires that if there be “any doubt” whether he is entitled to prisoner-of-war protections, he must be afforded those protections until his status is determined by a “competent tribunal.” . Because we hold that Hamdan may not, in any event, be tried by the military commission the President has convened pursuant to the November 13th Order and Commission Order No. 1, the question whether his potential status as a prisoner of war independently renders illegal his trial by military commission may be reserved.[18]

Plurality sections

Because Justice Anthony Kennedy did not join Stevens’ opinion as to several parts, largely on the grounds of judicial parsimony (that is, having decided that the military commissions had no foundation, the core question of the case was decided and the Court did not need to go further), those sections were without a majority in support. This article is about the Associate Justice of the U.S. Supreme Court. ... Look up parsimony in Wiktionary, the free dictionary. ...


In one of these sections, Stevens addressed the issue of whether military commissions can try conspiracy charges. He argued that military commissions are not courts of general jurisdiction, which are able to try any crime; that the court has traditionally held that offenses against the law of war are triable by military commission only when they are clearly defined as war crimes by statute or strong common law precedent (cf. Quirin). Finally, he found that there was no support in statute or court precedent for law-of-war military commissions trying charges of "conspiracy," either in the Geneva Conventions, in the earlier Hague Conventions or at the Nuremberg Trials. This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... In the criminal law, a conspiracy is an agreement between natural persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement. ... The Hague Conventions were international treaties negotiated at the First and Second Peace Conferences at The Hague, Netherlands in 1899 and 1907, respectively, and were, along with the Geneva Conventions, among the first formal statements of the laws of war and war crimes in the nascent body of secular international... For the 1947 Soviet film about the trials, see Nuremberg Trials (film). ...


Addressing the dissents

As is common in opinions to which there are dissents, Stevens' opinion addressed the major arguments in dissent. For example:

  • The majority opinion says that Justice Scalia's argument concerning the jurisdiction-stripping statute (section 1005e(1)) ignores the effective date provision of that very statute (section 1005(h))
  • The majority opinion says that the government's contention that the war started September 11, 2001 undercuts Justice Thomas' argument that it started in 1996.
  • The majority opinion notes that language in the Congressional Record that the Scalia dissent cites was inserted into the Record after the legislation had been enacted, by Senators Lindsey Graham (R-SC) and Jon Kyl (R-AZ), and includes falsified quotations attributed to other persons.[19] (The Department of Justice brief also relied on the made-up colloquy).

is the 254th day of the year (255th in leap years) in the Gregorian calendar. ... Year 2001 (MMI) was a common year starting on Monday (link displays the 2001 Gregorian calendar). ... Year 1996 (MCMXCVI) was a leap year starting on Monday (link will display full 1996 Gregorian calendar). ... The Congressional Record is the official record of the proceedings and debates of the United States Congress. ... Lindsey Olin Graham (born July 9, 1955) is an American politician from South Carolina. ... This page is about the current Arizona Senator; for his father, a U.S. Representative from Iowa, see John Kyl; for a U.S. Representative from Mississippi with a similar name, see John Kyle. ...

Breyer's concurrence

Justice Breyer wrote a one-page concurring opinion, joined by Justices Kennedy, Souter, and Ginsburg.[20] Breyer contended that the commissions are not necessarily categorically prohibited, as long as Congress approves them: Stephen Gerald Breyer (born August 15, 1938) is an American attorney, political figure, and jurist. ...

...Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary. ... Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine — through democratic means — how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

Kennedy's concurrence

Justice Kennedy wrote an opinion concurring in part, joined as to parts I and II by Justices Souter, Ginsburg, and Breyer.[21] This article is about the Associate Justice of the U.S. Supreme Court. ...


In Part One of Kennedy's concurrence, he raises his concern for the separation of powers; specifically, how one branch can control all the elements of a case, including avenues of review and appeal.


Part Two describes the differences between the procedures of the military commissions and the procedures prescribed by the UCMJ (fewer jury members, different rules of evidence, et al.).[22] These differences demonstrate that the commissions do not operate under the rules of military courts-martial, and raise issues of neutrality with respect to the military judges involved. The negation of fairness safeguards renders the commission a judicial entity which is not a "regularly-constituted court", as required in the Geneva Convention. In sum, Kennedy writes that the commission exceeds congressional bounds, though the Congress is free to re-write the law as they see fit.


The third and final Part lists some of Kennedy's reservations.[23] He would not say that the defendant must be present at all stages of the trial. There should be a reluctance to consider the applicability of Article 75 of Protocol I, since America never signed it and thus it is not binding. Kennedy writes that he feels it was not necessary to delve into the validity of the conspiracy charge, and he expresses no view on the merits of the other limitations of the commission noted in Part V of the Decision.


Scalia's dissent

Justice Scalia wrote a dissenting opinion that focuses primarily on issues of jurisdiction, and was joined by Justices Thomas and Alito.[24]


Scalia calls the Court's conclusion to hear the case "patently erroneous." His first argument relies on the part of the Detainee Treatment Act (DTA) (effective December 30, 2005) that states "[N]o 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." §1005(e)(1), 119 Stat. 2742. Scalia's opinion is that this clause suffices to deny the Supreme Court jurisdiction over the case, calling the majority's reading of the effectiveness provisions of §1005(h), a "mess". He cites Bruner v. United States and other cases granting "immediate effect in pending cases, absent an explicit statutory reservation." He criticizes the majority's use of Senate floor debate records to bolster their interpretation, writing that it "makes no difference" that the language in support of his position was inserted after the law was voted upon. He also accuses the majority of ignoring the President's Signing Statement. The McCain Detainee Amendment is a proposed amendment to the United States Senate Department of Defense Authorization bill, commonly referred to as the Amendment on (1) the Army Field Manual and (2) Cruel, Inhumane, Degrading Treatment, amendment #1977 and also known as the McCain Amendment 1977. ... is the 364th day of the year (365th in leap years) in the Gregorian calendar. ... Year 2005 (MMV) was a common year starting on Saturday (link displays full calendar) of the Gregorian calendar. ... Proponents of strong constitutional signing statements: Ronald Reagan, left, and George H. W. Bush, right. ...


Furthermore, he anticipates that expanding the jurisdictions able to hear writs of habeas corpus from Guantanamo Bay would create excessive load on the court system.


In addition, Scalia states that the original military tribunal was not shown to be inadequate. Regarding the application of the Suspension Clause of the Constitution, Scalia points to Johnson v. Eisentrager. The Suspension Clause is clause two of section nine of Article One of the United States Constitution. ... Johnson v. ...


In its second major argument, Scalia's opinion argues that petitioners such as Hamdan held outside the territorial jurisdiction of the United States lack the right to the writ of habeas corpus. He points in a footnote to Hamdi v. Rumsfeld, under which he claims Hamdan "is already subject to indefinite detention" "after an adverse determination by his CSRT." In common law countries, habeas corpus () (Latin: [We command that] you have the body) is the name of a legal action, or writ, through which a person can seek relief from unlawful detention of themselves or another person. ... Holding U.S. citizens designated as enemy combatants by the Executive Branch have a right to challenge their detainment under the Due Process Clause. ... This article or section may be confusing or unclear for some readers, and should be edited to rectify this. ...


Finally, Justice Scalia chastises the Court for taking equity jurisdiction of the case and draws an analogy with Schlesinger v. Councilman, 420 U.S. 738 (1975). In that case, the Supreme Court declined passing judgment on the decision of a military court-martial before it finished its work; Scalia argues that likewise, the military commissions in Cuba have not yet ended their work regarding Hamdan and therefore should not be subject to judicial oversight.[18] The Court of Chancery, London, early 19th century This article is about the concept of equity in the jurisprudence of common law countries. ... Holding Court membership Chief Justice: Warren E. Burger Associate Justices: William O. Douglas, William J. Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis Franklin Powell, Jr. ... A court-martial (plural courts-martial) is a military court that determines punishments for members of the military subject to military law. ... A tribunal is a generic term for any body acting judicially, whether or not it is called a tribunal in its title. ...


Thomas's dissent

Justice Clarence Thomas read his dissent from the bench when the decision was announced, the first time he did so since his dissent in Stenberg v. Carhart, 530 U.S. 914 (2000). Clarence Thomas (born June 23, 1948) is an American jurist and has been an Associate Justice of the Supreme Court of the United States since 1991. ... Holding Laws banning partial-birth abortion are unconstitutional if they do not make an exception for the womans health, or if they cannot be reasonably construed to apply only to the partial-birth abortion (intact D&X) procedure and not to other abortion methods. ...


In his dissent he asserted that the courts had no jurisdiction for this case for the reasons described in Scalia's dissent above; that Hamdan is an illegal combatant and therefore not protected by the Geneva convention; that the Geneva convention doesn't prohibit the special court council proposed; and that the President already had authority to set up the special court council proposed.[25] Unlawful combatant (also illegal combatant or unprivileged combatant) describes a person who engages in combat without meeting the requirements for a lawful belligerent according to the laws of war as specified in the Third Geneva Convention. ... The Geneva Conventions consist of treaties formulated in Geneva, Switzerland that set the standards for international law for humanitarian concerns. ...


Citing his dissent in Hamdi v. Rumsfeld, Thomas briefly reprised the roles granted by the Constitution to the three different branches in time of war. He argued that under the framework established in Ex parte Quirin and Youngstown Sheet & Tube Co. v. Sawyer, President Bush's decision to try Hamdan before a military commission "is entitled to a heavy measure of deference," inasmuch as Congress had authorized the President to use all necessary and appropriate force to prevent future acts of terrorism when it passed the Authorization for Use of Military Force. Holding U.S. citizens designated as enemy combatants by the Executive Branch have a right to challenge their detainment under the Due Process Clause. ... Holding The Court upheld the jurisdiction of a United States military tribunal over the trial of several German saboteurs in the United States. ... Holding The President did not have the inherent authority to seize private property in the absence of either specifically enumerated authority under Article Two of the Constitution or statutory authority conferred on him by Congress. ... The Authorization for Use of Military Force (Public law 107-40) was a joint resolution passed by the United States Congress on September 18, 2001, authorizing the use of United States Armed Forces against those responsible for the attacks on September 11, 2001. ...


Thomas disagreed strongly with the plurality’s determination that the legality of the charges against Hamdan are doubtful because he was charged "not with an overt act for which he was caught redhanded...but with an 'agreement' the inception of which long predated...the [relevant armed conflict]." He lambasted the plurality for second-guessing the Executive’s judgment, arguing that the Court’s disagreement was based upon "little more than its unsupported assertions" and constituted "an unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority." Thomas further disagreed with the plurality’s assumption that the date of the enactment of the AUMF constituted the start of war, suggesting that Osama bin Laden's declaration of jihad in August 1996 could be considered a declaration of war. Under this view, the enactment by Congress of the AUMF did not mark the beginning of the conflict with al Qaeda, but rather authorized the Executive to use force to combat it. Additionally, Thomas wrote that under the common law of war, which is "flexible and evolutionary in nature," war courts are permitted a degree of latitude in their jurisdiction. In holding otherwise, the plurality failed to properly defer to the judgment of the Executive and military commanders. Osama bin Muhammad bin Awad bin Laden (Arabic: ‎; born March 10, 1957[1]), most often mentioned as Osama bin Laden or Usama bin Laden, is a Saudi Arabian militant Islamist and is widely believed to be one of the founders of the organization called al-Qaeda. ... For other uses, see Jihad (disambiguation). ... Map of major attacks attributed to al-Qaeda Al-Qaeda (also al-Qaida or al-Qaida or al-Qaidah) (Arabic: ‎ , translation: The Base) is an international alliance of terrorist organizations. ...


Referring to the Court’s recent decision in Rapanos v. United States, Thomas noted with some incredulity that while the Justices that in the instant decision "disregard[ed] the commander-in-chief’s wartime decisions," they had no trouble deferring to the judgment of the Corps of Engineers in upholding the agency’s "wildly implausible conclusion that a storm drain is a tributary of the waters of the United States." "It goes without saying," Thomas added, "that there is much more at stake here than storm drains." Holding Sixth Circuit Court of Appeals vacated and remanded Court membership Chief Justice: John Roberts Associate Justices: John Paul Stevens, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito Case opinions Plurality by: Scalia Joined by: Roberts, Thomas, Alito Concurrence by: Roberts Concurrence by...


Thomas likewise disagreed with the plurality’s holding that even if the government had charged Hamdan with a crime that was clearly cognizable by military commission, the commission would still lack power to proceed because it does not comply with the terms of the UCMJ and the four Geneva Conventions signed in 1949. He again emphasized that the jurisdiction of military commissions is not prescribed by statute but is rather "adapted in each instance to the need that called it forth." Thomas argued that the Court’s conclusion that Article 36 of the UCMJ amounts to an attempt by Congress to curb the Executive’s power is "contrary to the text and structure of the UCMJ" and also inconsistent with prior decisions of the Court. Addressing Hamdan’s claims under the Geneva Convention, Thomas argued that these are foreclosed by the Court’s holding in Johnson v. Eisentrager, where the majority noted that the respondents could not assert "that anything in the Geneva Convention makes them immune from prosecution or punishment for war crimes." Further, even if Hamdan’s claim under Common Article 3 was not foreclosed by Eisentrager, it is nevertheless meritless insofar as the President has accepted the determination of the Department of Justice that Common Article 3 of Geneva does not extend to al Qaeda detainees. Thomas asserted that the Court’s duty in this instance to "defer to the President’s understanding of the provision at issue" is made even more acute by the fact that he is acting pursuant to his authority as Commander-in-Chief. Johnson v. ... The Robert F. Kennedy Department of Justice Building in Washington, D.C. “Justice Department” redirects here. ...


Alito's dissent

In a seven page dissent, Alito sided with Thomas and Scalia's explanation of why they believe the courts had no jurisdiction for this case.[26] He explained why he believed the military commission in this case was legal. Alito disagreed with the holding of the Court which found that military commissions did not meet the definition of a "a regularly constituted court" as required in Common Article 3 of the Geneva Conventions. Alito argued that Common Article 3 was satisfied in Hamdan because the military commissions:

  1. qualify as courts,
  2. were appointed and established in accordance with domestic law, and
  3. any procedural improprieties that might occur in particular cases can be reviewed in those cases.

Alito specifically disagreed with the opinions supporting the judgment which held that the military commission before which Hamdan would be tried is not "a regularly constituted court," and that the military commission is "illegal," because the commission's procedures allegedly would not comply with 10 U.S.C. § 836. Alito wrote that the military commission was "regularly" or "properly" constituted, using the example of the various types of local, state, federal and international courts and how "although these courts are 'differently constituted' and differ substantially in many other respects, they are all 'regularly constituted.'" Title 10 of the United States Code outlines the role of armed forces in the United States Code. ...


Alito stated that Geneva Convention Common Article 3 does not specifically rule out military commissions, and further points to the commentary in Article 66, which was the article the Court used in support of its opinion. Alito argued that even if Common Article 3 recognizes a prohibition on "special tribunals," which Article 66 does prohibit, such a prohibition is not applicable to Hamdan's tribunal because the military commissions were "regular."[27] Further, because the Bush Administration might conduct the hundreds of such tribunals according to the same procedures, Alito concluded that "it seems that petitioner’s tribunal, like the hundreds of others respondents propose to conduct, is very much regular and not at all special."


Alito wrote that "the commissions were appointed, set up, and established pursuant to an order of the President, just like the commission in Ex parte Quirin, 317 U. S. 1 (1942), and the Court acknowledges that Quirin recognized that the statutory predecessor of 10 U.S.C. § 821 'preserved' the President’s power 'to convene military commissions.'" Alito disagreed with Kennedy's assertion that "an acceptable degree of independence from the Executive is necessary to render a commission 'regularly constituted' by the standards of our Nation's system of justice," arguing that Kennedy "offers no support for this proposition (which in any event seems to be more about fairness or integrity than regularity)," and further arguing that the commission in Quirin was no different from the present case. Holding The Court upheld the jurisdiction of a United States military tribunal over the trial of several German saboteurs in the United States. ... Title 10 of the United States Code outlines the role of armed forces in the United States Code. ...


Finally, Alito wrote that the commission procedures as a whole do not provide a basis for deeming the commissions to be illegitimate. He points to two procedural rules, which the Court found fault with: First, the rule "allowing the Secretary of Defense to change the governing rules 'from time to time';" and second, the rule that "permits the admission of any evidence that would have 'probative value to a reasonable person'". Alito asserts these rules cannot make the commissions illegitimate.


On the first rule Alito argued that not all changes during the course of a trial prejudice the defendant, and that some may even help the defendant. In addition, "If a change is made and applied during the course of an ongoing proceeding and if the accused is found guilty, the validity of that procedure can be considered in the review proceeding for that case." For with(out) prejudice in law, see Prejudice (law). ...


On the second rule, Alito argued that this rule does not violate the international standard incorporated into Common Article 3, because "rules of evidence differ from country to country" and "much of the world does not follow aspects of our evidence rules, such as the general prohibition against the admission of hearsay." Rules of evidence govern if, when, how, and for what purpose proof of a case is placed before a trier of fact for consideration. ...


Reaction to the decision

The impact of the decision on the petitioner (Hamdan) was that he can still be tried; however, his trial must be in a court, such as a military court-martial, or possibly a commission that has court-like protections.


Shortly thereafter, the Military Commissions Act of 2006 may have raised again the issue of which court would hear cases such as Hamdan's. The U.S. Department of Justice has filed notice with several federal judges, and given notice to hundreds of detainees, that the habeas petitions of alien unlawful enemy combatants (or those whose status is to be determined) are not within the jurisdiction of those courts. [28] President George W. Bush signs into law S. 3930, the Military Commissions Act of 2006, during a ceremony on October 17, 2006 in the East Room of the White House. ... The Robert F. Kennedy Department of Justice Building in Washington, D.C. “Justice Department” redirects here. ... In common law jurisdictions, habeas corpus, or more precisely habeas corpus ad subjiciendum, is a prerogative writ which requires the addressee to produce in court a person in its custody and justify his or her imprisonment. ...


The passage and signing of the Act follows through on President Bush's expressed intention to get explicit Congressional authorization to use military tribunals.[29] Press Secretary Tony Snow echoed the plan to appeal to Congress.[30] President George W. Bush signs into law S. 3930, the Military Commissions Act of 2006, during a ceremony on October 17, 2006 in the East Room of the White House. ... Robert Anthony Tony Snow (born June 1, 1955) was the third White House Press Secretary for President George W. Bush, succeeding Scott McClellan and Ari Fleischer in that role. ...


However, even among Senate Republicans, there were conflicting views. Senators Arlen Specter and Lindsey Graham (the latter a former military prosecutor) indicated Congress would work quickly to authorize tribunals, while influential Senator John Warner suggested a cautious and deliberative response.[31] The potential for Congressional action also provided an avenue for politicking, as Republicans threatened Democratic members of Congress with being labeled weak on terrorism if they did not authorize tribunals.[32] Arlen J. Specter (born February 12, 1930) is a United States Senator from Pennsylvania. ... Lindsey Olin Graham (born July 9, 1955) is an American politician from South Carolina. ... Judge Advocate Generals Corps, also known as JAG, can refer to the judicial arm of any of the United States armed forces, consisting of autonomous departments in the Air Force, Army, United States Coast Guard and Navy. ... John William Warner (born February 18, 1927) is an American politician, who served as Secretary of the Navy from 1972 to 1974 and has served as the Republican senior U.S. Senator from Virginia since January 2, 1979. ...


On July 7, 2006 the Secretary of Defense issued a memo "Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense".[33] This may be the basis of a July 11, 2006, statement by the Bush administration that all detainees at Guantanamo Bay and in U.S. military custody everywhere are entitled to humane treatment under the Geneva Conventions.[34] This declaration appears not to cover CIA detainees and is ambiguous with respect to the interpretation of Common Article 3 and the definition of "humane treatment".[35] is the 188th day of the year (189th in leap years) in the Gregorian calendar. ... Year 2006 (MMVI) was a common year starting on Sunday of the Gregorian calendar. ... The United States Secretary of Defense is the head of the United States Department of Defense, concerned with the armed services and The Secretary is a member of the Presidents Cabinet. ... is the 192nd day of the year (193rd in leap years) in the Gregorian calendar. ... Year 2006 (MMVI) was a common year starting on Sunday of the Gregorian calendar. ... “CIA” redirects here. ...


There were some indications that the other detainees being held at facilities throughout the world (e.g. Bagram Air Base and black sites), might use the Supreme Court's ruling to challenge their treatment. Their reasoning may be that since the Geneva Conventions afforded protection to Hamdan, its other protections might be effective for them as well. Commentators expressed mixed opinions about the strength of this argument.[36] Bagram Air Base (ICAO: OAIX) is an airport located at the ancient city of Bagram, southeast of Charikar in Parvan, Afghanistan. ... It has been suggested that this article or section be merged into CIA prison system. ...


Implications for theories of executive power

The decision may have important implications for other disputes relating to the extent of executive power and the unitary executive theory. In particular, it may undermine the Bush administration's legal arguments for domestic wiretapping by the National Security Agency without warrants as required by the Foreign Intelligence Surveillance Act.[37][38] In American political and legal discourse, the unitary executive theory is a theory of Constitutional interpretation that is based on aspects of the separation of powers. ... Teh NSA warrantless surveillance controversy concerns surveillance of persons within the United States incident to the collection of foreign intelligence by the U.S. National Security Agency (NSA) as part of the war on terror. ... An NSA electronic surveillance program that operated without judicial oversight mandated by Foreign Intelligence Surveillance Act (FISA) was named the Terrorist Surveillance Program by the George W. Bush administration[1] in response to the NSA warrantless surveillance controversy which followed the disclosure of the program. ... “NSA” redirects here. ... The Foreign Intelligence Surveillance Act (FISA) of 1978 prescribes procedures for the physical and electronic surveillance and collection of foreign intelligence information between or among foreign powers. FISA is codified in 50 U.S.C. §§1801-1811, 1821-29, 1841-46, and 1861-62. ...


Charges dismissed

On June 5, 2007, Hamdan and Canadian youth Omar Khadr, had all charges against them dismissed.[39][40][41] The judges presiding over their military commissions ruled that the Military Commissions Act did not give them the jurisdiction to try Hamdan and Khadr, because it only authorized the trial of "unlawful enemy combatants". Hamdan and Khadr's Combatant Status Review Tribunals, like those of all the other Guantanamo captives, had confirmed that they were only "enemy combatants". Omar Ahmed Khadr born September 19, 1986 in Ottawa, is a Canadian who was captured by American forces in Afghanistan when he was 15 years of age. ... Camp x-ray, Guantánamo. ...


References

  1. ^ Hamdan v. Rumsfeld, Supreme Court Syllabus, pg. 4., point 4.
  2. ^ a b c Hamdan v. Rumsfeld, Duke Law's Supreme Court Online, 2005.
  3. ^ Invisible Men : Did Lindsey Graham and Jon Kyl mislead the Supreme Court?, by Emily Bazelon — Slate Magazine
  4. ^ "In Loss for Bush, Supreme Court Blocks War-Crimes Trials at Guantanamo", Associated Press, as reported by the The New York Times, June 29, 2006
  5. ^ http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1150362316389
  6. ^ "Paper: Detainee Lawyer Must Leave Navy", AP article in Washington Post, citing Miami Herald, 2006-10-08. Retrieved on 2007-04-15. 
  7. ^ Carol Rosenberg. "Lawyer is Denied Promotion", The Miami Herald, 2006-10-08.  (url is a search result on article title; requires fee for full text)
  8. ^ Sheridan, Robert. "Lt. Cmdr. Charles Swift", Sheridan: Con-Law, 2006-10-09. Retrieved on 2007-04-15.  (contains full text of the above source article)
  9. ^ Charge Sheets for Salim Ahmed Hamdan, Department of Defense
  10. ^ Bin Laden's driver outmanoeuvres Guantanamo trials, Sydney Morning Herald, November 9, 2004
  11. ^ Court bars efforts to try terrorist before military commissions, Washington Legal Foundation, November 9, 2004
  12. ^ High Court Sidesteps Guantanamo Bay Case, Los Angeles Times, January 19, 2005
  13. ^ Hamdan v. Rumsfeld, United States Court of Appeals for the District of Columbia Circuit, July 18, 2005.
  14. ^ Supreme Court to hear challenge to Gitmo tribunals Jurist, University of Pittsburgh School of Law, November 7, 2005.
  15. ^ Hamdan, Salim v. Rumsfeld, Donald (Secy. of Defense) Medill, Northwestern University, November 11, 2005.
  16. ^ Supreme Court: Detainees' Rights—Scalia Speaks His Mind, MSNBC.com, April 3, 2006
  17. ^ "US court rejects Guantanamo trial", BBC News. 
  18. ^ a b c Hamdan v. Rumsfeld (PDF). Supreme Court of the United States.
  19. ^ "Not Live From Capitol Hill", slate.com, by Emily Bazelon, June 29, 2006
  20. ^ 126 S. Ct. at 2799.
  21. ^ Id. at 2799-2809.
  22. ^ Id. at 2804.
  23. ^ Id. at 2808.
  24. ^ Id. at 2810-2823.
  25. ^ 126 S. Ct. at 2823-49.
  26. ^ Id. at 2849-55.
  27. ^ Citing Webster's Third New International Dictionary, Alito relied on the definition of "special," "relating to a single thing;" and the definition of "regular," "uniform in course, practice, or occurrence."
  28. ^ US: Courts No Longer Open to Detainees, October 20, 2006, Matt Apuzzo, Associated Press Writer , retrieved October 20, 2006.
  29. ^ President Bush and Japanese Prime Minister Koizumi Participate in a Joint Press Availability, June 29, 2006, from www.whitehouse.gov
  30. ^ Press Gaggle by Tony Snow, June 30, 2006, www.whitehouse.gov
  31. ^ Kate Zernike Warner Is Uncertain on Legislation for Tribunals July 1, 2006 New York Times retrieved 1 July 2006
  32. ^ Michael Abramowitz and Jonathan Weisman GOP Seeks Advantage In Ruling On Trials July 1, 2006 Washington Post retrieved 1 July 2006
  33. ^ "Geneva-22 on slate.com, from Timothy Noah, July 11, 2006
  34. ^ "U.S. will give detainees Geneva rights", by Anne Plummer Flaherty, AP
  35. ^ Newsflash: Pentagon Agrees to Abide by Supreme Court Ruling -- Or Does It? Marty Lederman, July 11, 2006
  36. ^ Neil A. Lewis Detainees May Test Reach of Guantánamo Ruling July 1, 2006 New York Times retrieved 1 July 2006
  37. ^ Supreme Court’s Ruling in Hamdan Means Warrantless Eavesdropping is Clearly Illegal, Glenn Greenwald, July 9, 2006
  38. ^ Hamdan and the NSA Domestic Surveillance Program: What Next?, Marty Lederman, July 7, 2006
  39. ^ Carol Rosenberg. "Military panels hear captives' side of story", Miami Herald, June 4, 2007. Retrieved on 2007-06-04. 
  40. ^ Alberts, Sheldon. "Khadr remains in detention after all charges dropped", National Post, Canwest MediaWorks Publications Inc., 2007-06-04. Retrieved on 2007-06-04. 
  41. ^ "Stuck in Guantanamo: President Bush tried to create a new legal system for terrorism suspects. He created a quagmire instead.", Washington Post, June 7, 2007. Retrieved on 2007-06-07. 

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