Edited Text © Matthew Woessner 2006
Hamdan v. Rumsfeld (2006) Majority
Majority Opinion
No. 05-184
SUPREME COURT OF THE UNITED STATES
2006
March 28, 2006, Argued
June 29, 2006, Decided
OPINIONBY: STEVENS
OPINION: [*20]
JUSTICE STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, Parts VI through VI-D-iii, Part VI-D-v, and Part VII, and an opinion with respect to Parts V and VI-D-iv, in which JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join.
Petitioner Salim Ahmed Hamdan, a Yemeni national, is in
custody at an American prison in
Hamdan filed petitions for writs of habeas corpus and mandamus to challenge the Executive Branch's intended means of prosecuting this charge. He concedes that a court-martial constituted in accordance with the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 801 [*21] et seq. (2000 ed. and Supp. III), would have authority to try him. His objection is that the military commission the President has convened lacks such authority, for two principal reasons: First, neither congressional Act nor the common law of war supports trial by this commission for the crime of conspiracy -- an offense that, Hamdan says, is not a violation of the law of war. Second, Hamdan contends, the procedures that the President has adopted to try him violate the most basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.
The District Court granted Hamdan's request for a writ of
habeas corpus. 344 F. Supp. 2d 152 (DC 2004). The Court of Appeals for the
District of Columbia Circuit reversed. 415 F.3d 33 (2005). Recognizing, as we
did over a half-century ago, that trial by military commission is an
extraordinary measure raising important questions about the balance of powers
in our constitutional structure, Ex parte Quirin, 317 U.S. 1, 19 (1942), we
granted certiorari. 546
For the reasons that follow, we
conclude that the [*22] military
commission convened to try Hamdan lacks power to proceed because its structure
and procedures violate both the UCMJ and the Geneva Conventions. Four of us
also conclude, see Part V, infra, that the offense with which Hamdan has been
charged is not an "offense that by . . . the law of war may be tried by
military commissions." 10 U.S.C. § 821.
I
On September 11, 2001, agents of the al Qaeda terrorist
organization hijacked commercial airplanes and attacked the
Congress responded by adopting a Joint Resolution
authorizing the President to "use all necessary and appropriate force
against those nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks . . . in order to prevent
any future acts of international terrorism against the United States by such
nations, organizations or persons." Authorization for Use of Military
Force (AUMF), 115 Stat. 224, note following 50 U.S.C. § 1541 [*23] (2000 ed., Supp. III). Acting pursuant to the
AUMF, and having determined that the Taliban regime had supported al Qaeda, the
President ordered the Armed Forces of the
On November 13, 2001, while the United States was still
engaged in active combat with the Taliban, the President issued a comprehensive
military order intended to govern the "Detention, Treatment, and Trial of
Certain Non-Citizens in the War Against Terrorism," 66 Fed. Reg. 57833
(hereinafter November 13 Order or Order). Those subject to the November 13
Order include any noncitizen for whom the President determines "there is
reason to believe" that he or she (1) "is or was" a member of al
Qaeda or (2) has engaged or participated in terrorist activities aimed at or
harmful to the United States.
On July 3, 2003, the President announced his determination
that Hamdan and five other detainees at
The charging document, which is unsigned, contains 13 numbered paragraphs. The first two paragraphs recite the asserted bases for the military commission's jurisdiction -- namely, the November 13 Order and the President's July 3, 2003, declaration that Hamdan is eligible for trial by military commission. The next nine paragraphs, collectively entitled "General Allegations," describe al Qaeda's activities from its inception in 1989 through 2001 and identify Osama bin Laden as the group's leader. Hamdan is not mentioned in these paragraphs.
Only the final two paragraphs,
entitled "Charge: Conspiracy," contain allegations against Hamdan.
Paragraph 12 charges that "from on or about February 1996 to on or about
November 24, 2001," Hamdan "willfully and knowingly joined an
enterprise of persons who shared a common criminal purpose and conspired and
agreed with [named members of al Qaeda] to commit the following offenses
triable by military commission: attacking civilians; attacking civilian
objects; murder by an unprivileged belligerent; and terrorism." App. to
Pet. for Cert. 65a. There is no allegation [*26] that Hamdan had any command responsibilities,
played a leadership role, or participated in the planning of any activity.
Paragraph 13 lists four "overt
acts" that Hamdan is alleged to have committed sometime between 1996 and
November 2001 in furtherance of the "enterprise and conspiracy": (1)
he acted as Osama bin Laden's "bodyguard and personal driver,"
"believing" all the while that bin Laden "and his associates
were involved in" terrorist acts prior to and including the attacks of
September 11, 2001; (2) he arranged for transportation of, and actually
transported, weapons used by al Qaeda members and by bin Laden's bodyguards
(Hamdan among them); (3) he "drove or accompanied Osama bin Laden to
various al Qaida-sponsored training camps, press conferences, or
lectures," at which bin Laden encouraged attacks against Americans; and
(4) he received weapons training at al Qaeda-sponsored camps.
After this formal charge was filed, the United States
District Court for the Western District of Washington transferred Hamdan's habeas
and mandamus petitions to the United States District Court for the
On November 8, 2004, however, the District Court granted Hamdan's petition for habeas corpus and stayed the commission's proceedings. It concluded that the President's authority to establish military commissions extends only to "offenders [*28] or offenses triable by military [commission] under the law of war," 344 F. Supp. 2d, at 158; that the law of war includes the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U.S. T. 3316, T. I. A. S. No. 3364 (Third Geneva Convention); that Hamdan is entitled to the full protections of the Third Geneva Convention until adjudged, in compliance with that treaty, not to be a prisoner of war; and that, whether or not Hamdan is properly classified as a prisoner of war, the military commission convened to try him was established in violation of both the UCMJ and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear. 344 F. Supp. 2d, at 158-172.
The Court of Appeals for the District of Columbia Circuit
reversed. Like the District Court, the Court of Appeals declined the
Government's invitation to abstain from considering Hamdan's challenge. Cf.
Schlesinger v. Councilman, 420
On November 7, 2005, we granted
certiorari to decide whether the military commission convened to try Hamdan has
authority to do so, and whether Hamdan may rely on the Geneva Conventions in
these proceedings.
II
On February 13, 2006, the Government filed a motion to
dismiss the writ of certiorari. The ground cited for dismissal was the recently
enacted Detainee Treatment Act of 2005 (DTA), Pub. L. 109-148, 119 Stat. 2739.
We postponed our ruling on that motion pending argument on the merits, [*30]
546
The DTA, which was signed into law
on December 30, 2005, addresses a broad swath of subjects related to detainees.
It places restrictions on the treatment and interrogation of detainees in
Subsection (e) of § 1005, which is
entitled "JUDICIAL REVIEW OF DETENTION OF ENEMY COMBATANTS," supplies
the basis for the Government's jurisdictional argument. The subsection contains
three numbered paragraphs. The first paragraph amends the judicial code as
follows:
"(1) IN GENERAL. -- Section
2241 of title 28, United States Code, is amended by adding at the end the
following:
. . . . [*31]
"'(e) Except as provided in
section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge
shall have jurisdiction to hear or consider --
"'(1) 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; or
"'(2) any other action against
the United States or its agents relating to any aspect of the detention by the
Department of Defense of an alien at Guantanamo Bay, Cuba, who --
"'(A) is currently in military
custody; or
"'(B) has been determined by
the United States Court of Appeals for the District of Columbia Circuit in
accordance with the procedures set forth in section 1005(e) of the Detainee
Treatment Act of 2005 to have been properly detained as an enemy
combatant.'" § 1005(e), id., at 2741-2742.
Paragraph (2) of subsection (e) vests in the Court of Appeals for the District of Columbia Circuit the "exclusive jurisdiction to determine the validity of any final decision of a [CSRT] that an alien is properly designated as an enemy combatant." Paragraph (2) also delimits the scope of that review. See §§ 1005(e)(2)(C)(i)-(ii), id., at 2742.
Paragraph (3) mirrors [*32] paragraph (2) in structure, but governs judicial review of final decisions of military commissions, not CSRTs. It vests in the Court of Appeals for the District of Columbia Circuit "exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order)." § 1005(e)(3)(A), id., at 2743. n2 Review is as of right for any alien sentenced to death or a term of imprisonment of 10 years or more, but is at the Court of Appeals' discretion in all other cases. The scope of review is limited to the following inquiries:
"(i) whether the final decision [of the military commission] was consistent with the standards and procedures specified in the military order referred to in subparagraph (A); and
"(ii) at the extent the Constitution and laws of the
Finally, § 1005 contains an "effective date" provision, which reads as follows:
"(1) IN GENERAL. -- This section shall take effect on the date of the enactment of this Act.
"(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS. -- Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act." § 1005(h), id., at 2743-2744. n3
The Act is silent about whether
paragraph (1) of subsection (e) "shall apply" to claims pending on
the date of enactment.
The Government argues that §§ 1005(e)(1) and 1005(h) had the immediate effect, upon enactment, of repealing [*34] federal jurisdiction not just over detainee habeas actions yet to be filed but also over any such actions then pending in any federal court -- including this Court. Accordingly, it argues, we lack jurisdiction to review the Court of Appeals' decision below.
Hamdan objects to this theory on both constitutional and
statutory grounds. Principal among his constitutional arguments is that the
Government's preferred reading raises grave questions about Congress' authority
to impinge upon this Court's appellate jurisdiction, particularly in habeas cases.
Support for this argument is drawn from Ex parte Yerger, 8 Wall. 85 (1869), in
which, having explained that "the denial to this court of appellate
jurisdiction" to consider an original writ of habeas corpus would
"greatly weaken the efficacy of the writ," id., at 102-103, we held that Congress would not be presumed to have effected
such denial absent an unmistakably clear statement to the contrary. See
id., at 104-105; see also Felker v. Turpin, 518 U.S. 651 (1996); Durousseau v.
We find it unnecessary to reach
either of these arguments. Ordinary principles of statutory construction
suffice to rebut the Government's theory -- at least insofar as this case,
which was pending at the time the DTA was enacted, is concerned.
The Government acknowledges that only paragraphs (2) and (3) of subsection (e) are expressly made applicable to pending cases, see § 1005(h)(2), 119 Stat. 2743-2744, but argues that the omission of paragraph (1) from the scope of that express statement is of no moment. This is so, we are told, because Congress' failure to expressly reserve federal courts' jurisdiction over pending cases erects a presumption against jurisdiction, and that presumption is rebutted by neither the text nor the legislative history of the DTA.
The first part of this argument is not entirely without
support in our precedents. We have in the past "applied intervening
statutes conferring or ousting jurisdiction, whether or not jurisdiction lay
when the underlying conduct occurred or when the suit was filed." Landgraf
v. USI Film Products, 511
That does not mean, however, that all jurisdiction-stripping
provisions -- or even all such provisions that truly lack retroactive effect --
must apply to cases pending [*39] at the
time of their enactment. n7 "
A like inference follows a fortiori from Lindh in this case.
"If . . . Congress was reasonably concerned to ensure that [§§ 1005(e)(2)
and (3)] be applied to pending cases, it should have been just as concerned
about [§ 1005(e)(1)], unless it had the different intent that the latter
[section] not be applied to the general run of pending cases."
The Government nonetheless offers two reasons why, in its
view, no negative inference may be drawn in favor of jurisdiction. First, it
asserts that Lindh is inapposite because "Section 1005(e)(1) and (h)(1)
remove jurisdiction, while Section 1005(e)(2), (3) and (h)(2) create an
exclusive review mechanism and define the nature of that review." Reply
Brief in Support of Respondents' Motion to Dismiss 4. Because the provisions
being contrasted "address wholly distinct subject matters," Martin v.
Hadix, 527
This argument must fail because it rests on a false distinction between the "jurisdictional" nature of subsection (e)(1) and the "procedural" character of subsections (e)(2) and (e)(3). In truth, all three provisions govern jurisdiction over detainees' claims; subsection (e)(1) addresses jurisdiction in habeas cases and other actions "relating to any aspect of the detention," while subsections (e)(2) and (3) vest exclusive, n11 but limited, jurisdiction in the Court of Appeals for the District of Columbia Circuit to review "final decisions" of CSRTs [*46] and military commissions.
That subsection (e)(1) strips jurisdiction while subsections
(e)(2) and (e)(3) restore it in limited form is hardly a distinction upon which
a negative inference must founder. JUSTICE SCALIA, in arguing to the contrary,
maintains that Congress had "ample reason" to provide explicitly for
application of subsections (e)(2) and (e)(3) to pending cases because
"jurisdiction-stripping" provisions like subsection (e)(1) have been
treated differently under our retroactivity jurisprudence than
"jurisdiction-conferring"
[*47] ones like subsections (e)(2)
and (e)(3). Post, at 8 (dissenting opinion); see also Reply Brief in Support of
Respondents' Motion to Dismiss 5-6. That theory is insupportable. Assuming
arguendo that subsections (e)(2) and (e)(3) "confer new jurisdiction (in
the D. C. Circuit) where there was none before," post, at 8 (emphasis in
original); but see Rasul v. Bush, 542 U.S. 466 (2004), and that our precedents
can be read to "strongly indicate" that jurisdiction-creating
statutes raise special retroactivity concerns not also raised by
jurisdiction-stripping statutes, post, at 8, n12 subsections (e)(2) and (e)(3)
"confer" jurisdiction in a manner that cannot conceivably give rise
to retroactivity questions under our precedents. The provisions impose no
additional liability or obligation on any private party or even on the
The Government's second objection is that applying subsections (e)(2) and (e)(3) but not (e)(1) to pending cases "produces an absurd result" because it grants (albeit only temporarily) dual jurisdiction over detainees' cases in circumstances where the statute plainly envisions that the District of Columbia Circuit will have "exclusive" and immediate jurisdiction over such cases. Reply Brief in Support of Respondents' Motion to Dismiss 7. But the premise here is faulty; subsections (e)(2) and (e)(3) grant jurisdiction only over actions to "determine the validity of any final decision" of a CSRT or commission. Because Hamdan, at least, is not contesting any "final decision" of a CSRT or military commission, his action does not fall within the scope of subsection (e)(2) or (e)(3). There is, then, no absurdity. n14
The Government's more general suggestion that Congress can have had no good reason for preserving habeas jurisdiction over cases that had been brought by detainees prior to enactment of the DTA not only is belied by the legislative history, see n. 10, supra, but is otherwise without merit. There is nothing absurd about a scheme under which pending habeas actions -- particularly those, like this one, that challenge the very legitimacy of the tribunals whose judgments Congress would like to have reviewed -- are preserved, and more routine challenges to final decisions rendered by those tribunals are carefully channeled to a particular court and through a particular lens of review.
Finally, we cannot leave unaddressed JUSTICE SCALIA's contentions that the "meaning of § 1005(e)(1) is entirely clear," post, at 6, and that "the plain import of a statute repealing jurisdiction is to eliminate the power to consider and render judgment -- in an already pending case no less than in a case yet to be filed," post, at 3 (emphasis in original). Only by treating the Bruner rule as an inflexible trump (a thing it has never been, see n. 7, supra) and ignoring both the rest [*51] of § 1005's text and its drafting history can one conclude as much. Congress here expressly provided that subsections (e)(2) and (e)(3) applied to pending cases. It chose not to so provide -- after having been presented with the option -- for subsection (e)(1). The omission is an integral part of the statutory scheme that muddies whatever "plain meaning" may be discerned from blinkered study of subsection (e)(1) alone. The dissent's speculation about what Congress might have intended by the omission not only is counterfactual, cf. n. 10, supra (recounting legislative history), but rests on both a misconstruction of the DTA and an erroneous view our precedents, see supra, at 17, and n. 12.
For these reasons, we deny the Government's motion to dismiss. n15
III
Relying on our decision in
Councilman, 420 U.S. 738, the Government argues that, even if we have statutory
jurisdiction, we should apply the "judge-made rule that civilian courts
should await the final outcome of on-going military proceedings before
entertaining an attack on those proceedings." Brief for Respondents 12.
Like the District Court and the Court of Appeals before us, we reject this
argument.
In Councilman, an army officer on active duty was referred
to a court-martial for trial on charges that he violated the UCMJ by selling,
transferring, and possessing marijuana. 420
We granted certiorari and reversed.
Councilman identifies two
considerations of comity that together favor abstention pending completion of
ongoing court-martial proceedings against service personnel. See New v. Cohen,
129 F.3d 639, 643 (CADC 1997); see also 415 F.3d at 36-37 (discussing
Councilman and New). First, military discipline and, therefore, the efficient
operation of the Armed Forces are best served if the military justice system
acts without regular interference from civilian courts. See Councilman, 420
The same cannot be said here;
indeed, neither of the comity considerations identified in Councilman weighs in
favor of abstention in this case. First, Hamdan is not a member of our Nation's
Armed Forces, so concerns about military discipline do not apply. Second, the
tribunal convened to try Hamdan is not part of the integrated system of
military courts, complete with independent review panels, that Congress has
established. Unlike the officer in Councilman, Hamdan has no right to appeal
any conviction to the civilian judges of the Court of Military Appeals (now
called the United States Court of Appeals for the Armed Forces, see Pub. L.
103-337, 108 Stat. 2831). Instead, under Dept. of Defense Military Commission
Order No. 1 (Commission Order No. 1), which was issued by the President on
March 21, 2002, and amended most recently on August 31, 2005, and which governs
the procedures for Hamdan's commission, any conviction would be reviewed by a
panel consisting of three military officers designated by the Secretary of
Defense. Commission Order No. 1 § 6(H)(4). Commission Order No. 1 provides that
appeal of a review panel's decision may be had only to the Secretary of Defense
[*57] himself, § 6(H)(5), and then,
finally, to the President, § 6(H)(6). n18
We have no doubt that the various
individuals assigned review power under Commission Order No. 1 would strive to
act impartially and ensure that Hamdan receive all protections to which he is
entitled. Nonetheless, these review bodies clearly lack the structural
insulation from military influence that characterizes the Court of Appeals for
the Armed Forces, and thus bear insufficient conceptual similarity to state
courts to warrant invocation of abstention principles. n19
In sum, neither of the two comity
considerations underlying our decision to abstain in Councilman applies to the
circumstances of this case. Instead, this Court's decision in Quirin is the
most relevant precedent. In Quirin, seven German saboteurs were captured upon
arrival by submarine in
As the Court of Appeals here recognized, Quirin
"provides a compelling historical precedent for the power of civilian
courts to entertain challenges that seek to interrupt the processes of military
commissions." 415 F.3d at 36. n20 The circumstances of this case, like
those in Quirin, simply do not implicate the "obligations of comity"
that, under appropriate circumstances, justify abstention. Quackenbush v.
Allstate Ins. Co., 517
Finally, the Government has identified no other
"important countervailing interest" that would permit federal courts
to depart from their general "duty to exercise the jurisdiction that is
conferred upon them by Congress."
IV
The military commission, a tribunal neither mentioned in the
Constitution nor created by statute, was born of military necessity. See W.
Winthrop, Military Law and Precedents 831 [*61]
(rev. 2d ed. 1920) (hereinafter
When the exigencies of war next gave rise to a need for use
of military commissions, during the Civil War, the dual system favored by
General Scott was not adopted. Instead, a single tribunal often took
jurisdiction over ordinary crimes, war crimes, and breaches of military orders
alike. As further discussed below, each aspect of that seemingly broad
jurisdiction was in fact supported by a separate military exigency. Generally,
though, [*62] the need for military commissions during this
period -- as during the Mexican War -- was driven largely by the then very
limited jurisdiction of courts-martial: "The occasion for the military
commission arises principally from the fact that the jurisdiction of the
court-martial proper, in our law, is restricted by statute almost exclusively
to members of the military force and to certain specific offences defined in a
written code."
Exigency alone, of course, will not justify the
establishment and use of penal tribunals not contemplated by Article I, § 8 and
Article III, § 1 of the Constitution unless some other part of that document
authorizes a response to the felt need. See Ex parte Milligan, 4 Wall. 2, 121
(1866) ("Certainly no part of the judicial power of the country was
conferred on [military commissions]"); Ex parte Vallandigham, 1 Wall. 243,
251 (1864); see also Quirin, 317
The Constitution makes the President the "Commander in Chief" of the Armed Forces, Art. II, § 2, cl. 1, but vests in Congress the powers to "declare War . . . and make Rules concerning Captures on Land and Water," Art. I, § 8, cl. 11, to "raise and support Armies," id., cl. 12, to "define and punish . . . Offences against the Law of Nations," id., cl. 10, and "To make Rules for the Government and Regulation of the land and naval Forces," id., cl. 14. The interplay between these powers was described by Chief Justice Chase in the seminal case of Ex parte Milligan:
"The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President . . . . Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without [*64] the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature." 4 Wall., at 139-140. n21
Whether Chief Justice Chase was correct in suggesting that the President may constitutionally convene military commissions "without the sanction of Congress" in cases of "controlling necessity" is a question this Court has not answered definitively, and need not answer today. For we held in Quirin that Congress had, through Article of [*65] War 15, sanctioned the use of military commissions in such circumstances. 317 U.S., at 28 ("By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases"). Article 21 of the UCMJ, the language of which is substantially identical to the old Article 15 and was preserved by Congress after World War II, n22 reads as follows:
"Jurisdiction of courts-martial not exclusive.
"The provisions of this code conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such military commissions, provost courts, or other military tribunals." 64 Stat. 115.
We have no occasion to revisit
Quirin's controversial characterization of Article of War 15 as congressional
authorization for military commissions. Cf. Brief for Legal Scholars and
Historians as Amici Curiae 12-15. Contrary to the Government's assertion,
however, even Quirin did not view the authorization as a sweeping mandate for
the President to "invoke military commissions when he deems them
necessary." Brief for Respondents 17. Rather, the
The Government would have us dispense with the inquiry that
the
Likewise, the DTA cannot be read to
authorize this commission. Although the DTA, unlike either Article 21 or the
AUMF, was enacted after the President had convened Hamdan's commission, it
contains no language authorizing that tribunal or any other at
Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the "Constitution and laws," including the law of war. Absent a more specific congressional authorization, the task of this Court is, as it was in Quirin, to decide whether [*69] Hamdan's military commission is so justified. It is to that inquiry we now turn.
V
The common law governing military commissions may be gleaned
from past practice and what sparse legal precedent exists. Commissions historically
have been used in three situations. See Bradley & Goldsmith, Congressional
Authorization and the War on Terrorism, 118 Harv. L. Rev. 2048, 2132-2133
(2005); Winthrop 831-846; Hearings on H. R. 2498 before the Subcommittee of the
House Committee on Armed Services, 81st Cong., 1st Sess., 975 (1949). First,
they have substituted for civilian courts at times and in places where martial
law has been declared. Their use in these circumstances has raised
constitutional questions, see
The third type of commission, convened as an "incident
to the conduct of war" when there is a need "to seize and subject to
disciplinary measures those enemies who in their attempt to thwart or impede
our military effort have violated the law of war," Quirin, 317
Quirin is the model the Government invokes most frequently
to defend the commission convened to try Hamdan. That is both appropriate and
unsurprising. Since
The classic treatise penned by Colonel William Winthrop,
whom we have called "the 'Blackstone of Military Law,'" Reid v.
Covert, 354 U.S. 1, 19, n. 38 (1957) (plurality opinion), describes at least
four preconditions for exercise of jurisdiction by a tribunal of the type
convened to try Hamdan. First, "[a] military commission, (except where
otherwise authorized by statute), can legally assume jurisdiction only of
offenses committed within the field of the command of the convening
commander."
All parties agree that Colonel Winthrop's treatise
accurately describes the common law governing military commissions, and that
the jurisdictional limitations he identifies were incorporated in Article of
War 15 and, later, Article 21 of the UCMJ. It also is undisputed that Hamdan's
commission lacks jurisdiction to try him unless the charge "properly sets
forth, not only the details of the act charged, but the circumstances
conferring jurisdiction."
The charge against Hamdan, described
in detail in Part I, supra, alleges a conspiracy extending over a number of
years, from 1996 to November 2001. n30 All but two months of that more than
5-year-long period preceded the attacks of September 11, 2001, and the enactment
of the AUMF -- the Act of Congress on which the Government relies for exercise
of its war powers and thus for its authority to convene military commissions.
n31 Neither the purported agreement with Osama bin Laden and others to commit
war crimes, nor a single [*76] overt
act, is alleged to have occurred in a theater of war or on any specified date
after September 11, 2001. None of the overt acts that Hamdan is alleged to have
committed violates the law of war.
These facts alone cast doubt on the
legality of the charge and, hence, the commission; as
There is no suggestion that Congress has, in exercise of its
constitutional authority to "define and punish . . . Offences against the
Law of Nations," U.S. Const., Art. I, § 8, cl. 10, positively identified
"conspiracy" as a war crime. n33 As we explained in Quirin, that is
not necessarily fatal to the Government's claim of authority to try the alleged
offense by military commission; Congress, through Article 21 of the UCMJ, has
"incorporated by reference" the common law of war, which may render
triable by military commission certain offenses not defined by statute. 317
This high standard was met in Quirin; the violation there alleged was, by "universal agreement and practice" both in this country and internationally, recognized as an offense against the law of war. 317 U.S., at 30; see id., at 35-36 ("This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War" (footnote omitted)). Although the picture arguably was less clear in Yamashita, compare 327 U.S., at 16 (stating that the provisions of the Fourth Hague Convention of 1907, 36 Stat. 2306, "plainly" required the defendant to control the troops under his command), with 327 U.S., at 35 (Murphy, J., dissenting), the disagreement between the majority and the dissenters in that case concerned whether the historic and textual evidence constituted clear precedent -- not whether clear precedent was required to justify trial by law-of-war military commission.
At a minimum, the [*81]
Government must make a substantial showing that the crime for which it
seeks to try a defendant by military commission is acknowledged to be an
offense against the law of war. That burden is far from satisfied here. The crime of "conspiracy" has rarely if ever been
tried as such in this country by any law-of-war military commission not
exercising some other form of jurisdiction, n35 and does not appear in either
the Geneva Conventions or the Hague Conventions -- the major treaties on the
law of war. n36 Winthrop explains that under the common law governing
military commissions, it is not enough to intend to violate the law of war and
commit overt acts in furtherance of that intention unless the overt acts either
are themselves offenses against the law of war or constitute steps sufficiently
substantial to qualify as an attempt. See
The Government cites three sources that it says show
otherwise. First, it points out that the Nazi saboteurs in Quirin were charged
with conspiracy. See Brief for Respondents 27. Second, it observes that
That the defendants in Quirin were charged with conspiracy is not persuasive, since the Court declined to address whether the offense actually qualified as a violation of the law of war -- let alone one triable by military commission. The Quirin defendants were charged with the following offenses:
"[
"[II.] Violation of Article 81 of the Articles of War, defining the offense of relieving or attempting to relieve, or corresponding with or giving intelligence to, the enemy.
"[III.] Violation of Article 82, defining the offense of spying.
"[IV.] Conspiracy to commit the offenses alleged in
charges [I, II, and III]." 317
The Government, defending its charge, argued that the
conspiracy alleged "constituted an additional violation of the law of
war."
Turning to the other charges alleged, the Court explained
that "since the first specification of Charge I sets forth a violation of the
law of war, we have no occasion to pass on the adequacy of the second
specification of Charge I, or to construe the 81st and 82nd Articles of War for
the purpose of ascertaining whether the specifications under Charges II and III
allege violations of those Articles or whether if so construed they are
constitutional."
If anything, Quirin supports Hamdan's argument that
conspiracy is not a violation of the law of war. Not only did the Court
pointedly omit any discussion of the conspiracy charge, but its analysis of
Charge I placed special emphasis on the completion of an offense; it took
seriously the saboteurs' argument that there can be no violation of a law of
war -- at least not one triable by military commission -- without the actual
commission of [*86] or attempt to commit
a "hostile and warlike act."
That limitation makes eminent sense when one considers the
necessity from whence this kind of military commission grew: The need to
dispense swift justice, often in the form of execution, to illegal belligerents
captured on the battlefield. See S. Rep. No. 130, 64th Cong., 1st Sess., p. 40
(1916) (testimony of Brig. Gen. Enoch H. Crowder) (observing that Article of
War 15 preserves the power of "the military commander in the field in time
of war" to use military commissions (emphasis added)). The same urgency
would not have been felt vis-A-vis enemies who had done little more than agree
to violate the laws of war. Cf. 31 Op. Atty. Gen. 356, 357, 361 (1918) (opining
that a German spy could not be tried by military commission because, having
been apprehended before entering "any camp, fortification or other
military premises of the United States," he had "committed [his
offenses] outside of the field of military operations"). The
Winthrop and Howland are only superficially more helpful to
the Government. Howland, granted, lists "conspiracy by two or more to
violate the laws of war by destroying life or property in aid of the
enemy" as one of over 20 "offenses against the laws and usages of
war" "passed upon and punished by military commissions." Howland
1071. But while the records of cases that Howland cites following his list of
offenses against the law of war support inclusion of the other offenses
mentioned, they provide no support for the inclusion of conspiracy as a
violation of the law of war. See ibid. (citing Record Books of the Judge Advocate
General Office, R. 2, 144; R. 3, 401, 589, 649; R. 4, 320; R. 5, 36, 590; R. 6,
20; R. 7, 413; R. 8, 529; R. 9, 149, 202, 225, 481, 524, 535; R. 10, 567; R.
11, 473, 513; R. 13, 125, 675; R. 16, 446; R. 21, 101, 280).
As we have seen, the military commissions convened during
the Civil War functioned at once as martial law or military government
tribunals and as law-of-war commissions. See n. 27, supra. Accordingly, they
regularly tried war crimes and ordinary crimes together. Indeed, as Howland
observes, "not infrequently the crime, as charged and found, was a
combination of the two species of offenses." Howland 1071; see also Davis
310, n. 2; Winthrop 842. The example he gives is "'murder in violation of
the laws of war. [*89] '" Howland
1071-1072.
JUSTICE THOMAS cites as evidence that conspiracy is a
recognized violation of the law of war the Civil War indictment against Henry
Wirz, which charged the defendant with "'maliciously, willfully, and
traitorously . . . combining, confederating, and conspiring [with others] to
injure the health and destroy the lives of soldiers in the military service of the
United States . . . to the end that the armies of the United States might be
weakened and impaired, in violation of the laws and customs of war.'"
Post, at 24-25 (dissenting opinion) (quoting H. R. Doc. No. 314, 55th [*90] Cong., 3d Sess., 785 (1865); emphasis
deleted). As shown by the specification supporting that charge, however, Wirz
was alleged to have personally committed a number of atrocities against his
victims, including torture, injection of prisoners with poison, and use of
"ferocious and bloodthirsty dogs" to "seize, tear, mangle, and
maim the bodies and limbs" of prisoners, many of whom died as a result.
Finally, international sources confirm that the crime
charged here is not a recognized violation of the law of war. n38 As observed
above, see supra, at 40, none of the major treaties governing the law of war
identifies conspiracy as a violation thereof. And the only
"conspiracy" crimes that have been recognized by international war
crimes tribunals (whose jurisdiction often extends beyond war crimes proper to
crimes against humanity and crimes against the peace) are conspiracy to commit
genocide and common plan to wage aggressive war, which is a crime against the
peace and requires for its commission actual participation in a "concrete
plan to wage war." 1 Trial of the Major War Criminals Before the
International Military Tribunal:
In sum, the sources that the
Government and JUSTICE THOMAS rely upon to show that conspiracy to violate the
law of war is itself a violation of the law of war in fact demonstrate quite
the opposite. Far from making the requisite substantial showing, the Government
has failed even to offer a "merely colorable" case for inclusion of
conspiracy among those offenses cognizable by law-of-war military commission.
Cf. Quirin, 317
The charge's shortcomings are not merely formal, but are
indicative of a broader inability on the Executive's part here to satisfy the
most basic precondition -- at least in the absence of specific congressional
authorization -- for establishment of military commissions: military necessity.
Hamdan's tribunal was appointed not by a military commander in the field of
battle, but by a retired major general stationed away from any active
hostilities. Cf. Rasul v. Bush, 542
VI
Whether or not the Government has charged Hamdan with an
offense against the law of war cognizable by military commission, the
commission lacks power to proceed. The UCMJ conditions the President's use of
military commissions on compliance not only with the American common law of
war, but also with the rest of the UCMJ itself, insofar as applicable, and with
the "rules and precepts of the law of nations," Quirin, 317 U.S., at
28 -- including, inter alia, the four Geneva Conventions signed in 1949. See
Yamashita, 327
A
The commission's procedures are set
forth in Commission Order No. 1, which was amended most recently on August 31,
2005 -- after Hamdan's trial had already begun. Every commission established
pursuant to Commission Order No. 1 must have a presiding officer and at least
three other members, all of whom must be commissioned officers. § 4(A)(1). The presiding
officer's job is to rule on questions of law and other evidentiary and
interlocutory issues; the other members make findings and, if applicable, [*97]
sentencing decisions. § 4(A)(5). The accused is entitled to appointed
military counsel and may hire civilian counsel at his own expense so long as
such counsel is a U.S. citizen with security clearance "at the level
SECRET or higher." §§ 4(C)(2)-(3). The accused also is entitled to a copy
of the charge(s) against him, both in English and his own language (if
different), to a presumption of innocence, and to certain other rights
typically afforded criminal defendants in civilian courts and courts-martial.
See §§ 5(A)-(P). These rights are subject, however, to one glaring condition:
The accused and his civilian counsel may be excluded from, and precluded from
ever learning what evidence was presented during, any part of the proceeding
that either the Appointing Authority or the presiding officer decides to
"close." Grounds for such closure "include the protection of
information classified or classifiable . . .; information protected by law or
rule from unauthorized disclosure; the physical safety of participants in
Commission proceedings, including prospective witnesses; intelligence and law
enforcement sources, methods, or activities; and other national security
interests." § 6(B)(3). [*98] n42 Appointed military defense counsel must
be privy to these closed sessions, but may, at the presiding officer's
discretion, be forbidden to reveal to his or her client what took place
therein. Ibid.
Another striking feature of the
rules governing Hamdan's commission is that they permit the admission of any
evidence that, in the opinion of the presiding officer, "would have
probative value to a reasonable person." § 6(D)(1). Under this test, not
only is testimonial hearsay and evidence obtained through coercion fully
admissible, but neither live testimony nor witnesses' written statements need
be sworn. See §§ 6(D)(2)(b), (3). Moreover, the accused and his civilian
counsel may be denied access to evidence in the form of "protected
information" (which includes classified information as well as
"information protected by law or rule from unauthorized disclosure"
and "information concerning other [*99]
national security interests," §§ 6(B)(3), 6(D)(5)(a)(v)), so long
as the presiding officer concludes that the evidence is "probative"
under § 6(D)(1) and that its admission without the accused's knowledge would
not "result in the denial of a full and fair trial." § 6(D)(5)(b).
n43 Finally, a presiding officer's determination that evidence "would not
have probative value to a reasonable person" may be overridden by a
majority of the other commission members. § 6(D)(1).
Once all the evidence is in, the
commission members (not including the [*100]
presiding officer) must vote on the accused's guilt. A two-thirds vote
will suffice for both a verdict of guilty and for imposition of any sentence
not including death (the imposition of which requires a unanimous vote). §
6(F). Any appeal is taken to a three-member review panel composed of military
officers and designated by the Secretary of Defense, only one member of which
need have experience as a judge. § 6(H)(4). The review panel is directed to
"disregard any variance from procedures specified in this Order or
elsewhere that would not materially have affected the outcome of the trial
before the Commission." Ibid. Once the panel makes its recommendation to
the Secretary of Defense, the Secretary can either remand for further proceedings
or forward the record to the President with his recommendation as to final
disposition. § 6(H)(5). The President then, unless he has delegated the task to
the Secretary, makes the "final decision." § 6(H)(6). He may change
the commission's findings or sentence only in a manner favorable to the
accused. Ibid.
B
Hamdan raises both general and particular objections to the procedures set forth in Commission Order No. 1. His general objection [*101] is that the procedures' admitted deviation from those governing courts-martial itself renders the commission illegal. Chief among his particular objections are that he may, under the Commission Order, be convicted based on evidence he has not seen or heard, and that any evidence admitted against him need not comply with the admissibility or relevance rules typically applicable in criminal trials and court-martial proceedings.
The Government objects to our consideration of any procedural challenge at this stage on the grounds that (1) the abstention doctrine espoused in Councilman, 420 U.S. 738, precludes pre-enforcement review of procedural rules, (2) Hamdan will be able to raise any such challenge following a "final decision" under the DTA, and (3) "there is . . . no basis to presume, before the trial has even commenced, that the trial will not be conducted in good faith and according to law." Brief for Respondents 45-46, nn. 20-21. The first of these contentions was disposed of in Part III, supra, and neither of the latter two is sound.
First, because Hamdan apparently is not subject to the death penalty (at least as matters now stand) and may receive a sentence [*102] shorter than 10 years' imprisonment, he has no automatic right to review of the commission's "final decision" n44 before a federal court under the DTA. See § 1005(e)(3), 119 Stat. 2743. Second, contrary to the Government's assertion, there is a "basis to presume" that the procedures employed during Hamdan's trial will violate the law: The procedures are described with particularity in Commission Order No. 1, and implementation of some of them has already occurred. One of Hamdan's complaints is that he will be, and indeed already has been, excluded from his own trial. See Reply Brief for Petitioner 12; App. to Pet. for Cert. 45a. Under these circumstances, review of the procedures in advance of a "final decision" -- the timing of which is left entirely to the discretion of the President under the DTA -- is appropriate. We turn, then, to consider the merits of Hamdan's procedural challenge.
C
In part because the difference
between military commissions and courts-martial originally was a difference of
jurisdiction alone, and in part to protect against abuse and ensure
evenhandedness under the pressures of war, the procedures governing trials by military
commission historically have been the same as those governing courts-martial.
See, e.g., 1 The War of the Rebellion 248 (2d series 1894) (General Order 1
issued during the Civil War required military commissions to "be
constituted in a similar manner and their proceedings be conducted according to
the same general rules as courts-martial in order to prevent abuses which might
otherwise arise"). Accounts of commentators from
There is a glaring historical
exception to this general rule. The procedures and evidentiary rules used to
try General Yamashita near the end of World War II deviated in significant
respects from those then governing courts-martial. See 327
Yamashita, from late 1944 until September 1945, was
Commanding General of the Fourteenth Army Group of the Imperial Japanese Army,
which had exercised control over the Philippine Islands. On September 3, 1945,
after American forces regained control of the
The procedures and rules of evidence employed during
Yamashita's trial departed so far from those used in courts-martial that they
generated an unusually long and vociferous critique from two Members of this
Court. See id., at 41-81 (Rutledge, J., joined by Murphy, J., dissenting). n46
Among the dissenters' primary concerns was that the commission had free rein to
consider all evidence "which in the commission's [*106] opinion 'would be of assistance in proving or
disproving the charge,' without any of the usual modes of authentication."
The majority, however, did not pass on the merits of Yamashita's procedural challenges because it concluded [*107] that his status disentitled him to any protection under the Articles of War (specifically, those set forth in Article 38, which would become Article 36 of the UCMJ) or the Geneva Convention of 1929, 47 Stat. 2021 (1929 Geneva Convention). The Court explained that Yamashita was neither a "person made subject to the Articles of War by Article 2" thereof, 327 U.S., at 20, nor a protected prisoner of war being tried for crimes committed during his detention, id., at 21.
At least partially in response to subsequent criticism of General Yamashita's trial, the UCMJ's codification of the Articles of War after World War II expanded the category of persons subject thereto to include defendants in Yamashita's (and Hamdan's) position, n47 and the Third Geneva Convention of 1949 extended prisoner-of-war protections to individuals tried for crimes committed before their capture. See 3 Int'l Comm. of Red Cross, n48 Commentary: Geneva Convention Relative to the Treatment of Prisoners of War 413 (1960) (hereinafter GCIII Commentary) (explaining that Article 85, which extends the Convention's protections to "prisoners of war prosecuted under the laws of the Detaining Power [*108] for acts committed prior to capture," was adopted in response to judicial interpretations of the 1929 Convention, including this Court's decision in Yamashita). The most notorious exception to the principle of uniformity, then, has been stripped of its precedential value.
The uniformity principle is not an inflexible one; it does
not preclude all departures from the procedures dictated for use by
courts-martial. But any departure must be tailored to the exigency that necessitates
it. See
"(a) The procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.
"(b) All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress." 70A Stat. 50.
Article 36 places two restrictions on the President's power to promulgate rules of procedure for courts-martial and military commissions alike. First, no procedural rule he adopts may be "contrary to or inconsistent with" the UCMJ -- however practical it may seem. Second, [*110] the rules adopted must be "uniform insofar as practicable." That is, the rules applied to military commissions must be the same as those applied to courts-martial unless such uniformity proves impracticable.
Hamdan argues that Commission Order No. 1 violates both of these restrictions; he maintains that the procedures described in the Commission Order are inconsistent with the UCMJ and that the Government has offered no explanation for their deviation from the procedures governing courts-martial, which are set forth in the Manual for Courts-Martial, United States (2005 ed.) (Manual for Courts-Martial). Among the inconsistencies Hamdan identifies is that between § 6 of the Commission Order, which permits exclusion of the accused from proceedings and denial of his access to evidence in certain circumstances, and the UCMJ's requirement that "all . . . proceedings" other than votes and deliberations by courts-martial "shall be made a part of the record and shall be in the presence of the accused." 10 U.S.C. A. § 839(c) (Supp. 2006). Hamdan also observes that the Commission Order dispenses with virtually all evidentiary rules applicable in courts-martial.
The Government [*111] has three responses. First, it argues, only 9 of the UCMJ's 158 Articles -- the ones that expressly mention "military commissions" n49 -- actually apply to commissions, and Commission Order No. 1 sets forth no procedure that is "contrary to or inconsistent with" those 9 provisions. Second, the Government contends, military commissions would be of no use if the President were hamstrung by those provisions of the UCMJ that govern courts-martial. Finally, the President's determination that "the danger to the safety of the United States and the nature of international terrorism" renders it impracticable "to apply in military commissions . . . the principles of law and rules of evidence generally recognized in the trial of criminal cases in the United States district courts," November 13 Order § 1(f), is, in the Government's view, explanation enough for any deviation from court-martial procedures. See Brief for Respondents 43-47, and n. 22.
Hamdan has the better of this argument. Without reaching the question whether any provision of Commission Order No. 1 is strictly "contrary to or inconsistent with" other provisions of the UCMJ, we conclude that the "practicability" determination the President has made is insufficient to justify variances from the procedures governing courts-martial. Subsection (b) of Article 36 was added after World War II, and requires a different showing of impracticability from the one required by subsection (a). Subsection (a) requires that the rules the President promulgates for courts-martial, provost courts, and military commissions alike conform to those that govern procedures in Article III courts, "so far as he considers practicable." 10 U.S.C. § 836(a) (emphasis added). Subsection (b), by contrast, demands that the rules applied in courts-martial, provost courts, and military commissions -- whether or not they conform with the Federal Rules of Evidence -- be "uniform insofar as practicable." § 836(b) (emphasis added). Under the latter provision, then, the rules set forth in the Manual for Courts-Martial must apply to military commissions unless impracticable. [*113] n50
The President here has determined,
pursuant to subsection (a), that it is impracticable to apply [*114] the rules and principles of law that govern
"the trial of criminal cases in the
Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any [*115] logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President's Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism. n52 Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan's trial, any variance from the rules that govern courts-martial.
The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: the right to be present. See 10 U.S.C. A. § 839(c) (Supp. 2006). Whether or not that departure technically is "contrary to or inconsistent with" the terms of the UCMJ, 10 U.S.C. § 836(a), the jettisoning of so basic a right cannot lightly be excused as "practicable."
Under the circumstances, then, the rules applicable in courts-martial must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Article 36(b).
The Government's objection that requiring compliance with
the court-martial rules imposes an undue burden both ignores the plain meaning
of Article 36(b) and misunderstands the purpose and the history of military
commissions. The military commission was not born of a desire to dispense a
more summary form of justice than is afforded by courts-martial; it developed,
rather, as a tribunal of [*117] necessity
to be employed when courts-martial lacked jurisdiction over either the accused
or the subject matter. See
D
The procedures adopted to try Hamdan also violate the Geneva
Conventions. The Court of Appeals dismissed Hamdan's
Geneva Convention challenge on three independent grounds: (1) the Geneva
Conventions are not judicially enforceable; (2) Hamdan in any event is not
entitled to their protections; and (3) even if he is entitled to their
protections, Councilman abstention is appropriate. Judge Williams,
concurring, rejected the second ground but agreed with the majority respecting
the first and the last. As we explained in Part III, supra, the abstention rule
applied in Councilman, 420
i
The Court of Appeals relied on Johnson v. Eisentrager, 339
U.S. 763 (1950), to hold that Hamdan could not invoke the Geneva Conventions to
challenge the Government's plan to prosecute him in accordance with Commission
Order No. 1. Eisentrager involved a challenge by 21 German nationals to their
1945 convictions for war crimes by a military tribunal convened in
Buried in a footnote of the opinion, however, is this curious statement suggesting that the Court lacked power even to consider the merits of the Geneva Convention argument:
"We are not holding that these
prisoners have no right which the military authorities are bound to respect.
The United States, [*121] by the Geneva Convention of July 27, 1929, 47
Stat. 2021, concluded with forty-six other countries, including the German
Reich, an agreement upon the treatment to be accorded captives. These prisoners
claim to be and are entitled to its protection. It is, however, the obvious
scheme of the Agreement that responsibility for observance and enforcement of
these rights is upon political and military authorities. Rights of alien enemies
are vindicated under it only through protests and intervention of protecting
powers as the rights of our citizens against foreign governments are vindicated
only by Presidential intervention."
The Court of Appeals, on the strength of this footnote, held that "the 1949 Geneva Convention does not confer upon Hamdan a right to enforce its provisions in court." 415 F.3d at 40.
Whatever else might be said about the Eisentrager footnote,
it does not control this case. We may assume that "the obvious
scheme" of the 1949 Conventions is identical in all relevant respects to
that of the 1929 Convention, n57 and even that that scheme would, absent some
other provision of law, preclude Hamdan's invocation of the Convention's [*122] provisions as an independent source of law
binding the Government's actions and furnishing petitioner with any enforceable
right. n58 For, regardless of the nature of the rights conferred on Hamdan, cf.
ii
For the Court of Appeals, acknowledgment of that condition
was no bar to Hamdan's trial by commission. As an alternative to its holding
that Hamdan could not invoke the Geneva Conventions at all, the Court of
Appeals concluded that the Conventions did not in any event apply to the armed
conflict during which Hamdan was captured. The court accepted the Executive's
assertions that Hamdan was captured in connection with the
The conflict with al Qaeda is not, according to the
Government, a conflict to which the full protections afforded detainees under
the 1949 Geneva Conventions apply because Article 2 of those Conventions (which
appears in all four Conventions) renders the full protections applicable only
to "all cases of declared war or of any other armed conflict which may
arise between two or more of the High Contracting Parties." 6
We need not decide the merits of
this argument because there is at least one provision of the Geneva Conventions
that applies here even if the relevant conflict is not one between signatories.
n61 Article 3, often referred to as Common Article 3 because, like Article 2,
it appears in [*125] all four Geneva
Conventions, provides that in a "conflict not of an international
character occurring in the territory of one of the High Contracting Parties,
each Party n62 to the conflict shall be bound to apply, as a minimum,"
certain provisions protecting "persons taking no active part in the hostilities,
including members of armed forces who have laid down their arms and those
placed hors de combat by . . . detention."
The Court of Appeals thought, and the Government asserts,
that Common Article 3 does not apply to Hamdan because the conflict with al
Qaeda, being "'international in scope,'" does not qualify as a
"'conflict not of an international character.'" 415 F.3d at 41. That
reasoning is erroneous. The term "conflict not of an international character"
is used here in contradistinction to a conflict between nations. So much is
demonstrated by the "fundamental logic [of] the Convention's provisions on
its application."
Although the official commentaries
accompanying Common Article 3 indicate that an important purpose of the
provision was to furnish minimal protection to rebels involved in one kind of
"conflict not of an international character," i.e., a civil war, see
GCIII Commentary 36-37, the commentaries also make clear "that the scope
of the Article must be as wide as possible," id., at 36. n63 In fact,
limiting language that would have rendered Common Article 3 applicable
"especially [to] cases of civil war, colonial conflicts, or wars of
religion," was omitted from the final version of the Article, which
coupled broader scope of application with a narrower range of rights than did
earlier proposed iterations. See GCIII Commentary 42-43.
iii
Common Article 3, then, is applicable here and, as indicated
above, requires that Hamdan be tried by a "regularly constituted court
affording all the judicial guarantees which are recognized as indispensable by
civilized peoples." 6
The Government offers only a cursory
defense of Hamdan's military commission in light of Common Article 3. See Brief
for Respondents 49-50. As JUSTICE KENNEDY explains, that defense fails because
"the regular military courts in our system are the courts-martial
established by congressional statutes." Post, at 8 (opinion concurring in
part). At a minimum, a military commission "can be 'regularly constituted'
by the standards of our military justice system only if some [*131] practical need explains deviations from court-martial
practice." Post, at 10. As we have explained, see Part VI-C, supra, no
such need has been demonstrated here. n65
iv
Inextricably intertwined with the question of regular
constitution is the evaluation of the procedures governing the tribunal and
whether they afford "all the judicial guarantees which are recognized as
indispensable by civilized peoples." 6
We agree with JUSTICE KENNEDY that the procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by any "evident practical need," post, at 11, and for that reason, at least, fail to afford the requisite guarantees. See post, at 8, 11-17. We add only that, as noted in Part VI-A, supra, various provisions of Commission Order No. 1 dispense with the principles, articulated in Article 75 and indisputably part of the customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him. See §§ 6(B)(3), (D). n67 That the Government has a compelling interest in denying Hamdan access to certain sensitive information is not doubted. Cf. post, at 47-48 (THOMAS, J., dissenting). But, at least absent express statutory provision to the contrary, information used to convict a person of a crime must be disclosed to him.
v
Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.
VII
We have assumed, as we must, that the allegations made in the Government's charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge -- viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings. [*135]
It is so ordered.
THE CHIEF JUSTICE took no part in the consideration or decision of this case.
CONCURBY: BREYER; KENNEDY (In Part)
CONCUR: JUSTICE BREYER, with whom JUSTICE KENNEDY, JUSTICE SOUTER, and JUSTICE GINSBURG join, concurring.
The dissenters say that today's decision would "sorely
hamper the President's ability to confront and defeat a new and deadly
enemy." Post, at 29 (opinion of THOMAS, J.). They suggest that it undermines
our Nation's ability to "prevent future attacks" of the grievous sort
that we have already suffered. Post, at 48. That claim leads me to state
briefly what I believe the majority sets forth both explicitly and implicitly
at greater length. The Court's conclusion ultimately rests upon a single
ground: Congress has not issued the Executive a "blank check." Cf.
Hamdi v. Rumsfeld, 542
Where, as here, no emergency
prevents consultation with Congress, judicial [*136] 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.
JUSTICE KENNEDY, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join as to Parts I and II, concurring in part.
Military Commission Order No. 1, which governs the military commission established to try petitioner Salim Hamdan for war crimes, exceeds limits that certain statutes, duly enacted by Congress, have placed on the President's authority to convene military courts. This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President's authority. Where a statute provides the conditions for the exercise of governmental [*137] power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.
These principles seem vindicated here, for a case that may be of extraordinary importance is resolved by ordinary rules. The rules of most relevance here are those pertaining to the authority of Congress and the interpretation of its enactments.
It seems appropriate to recite these rather fundamental points because the Court refers, as it should in its exposition of the case, to the requirement of the Geneva Conventions of 1949 that military tribunals be "regularly constituted" ante, at 69 -- a requirement that controls here, if for no other reason, because Congress requires that military commissions like the ones at issue conform to the "law of war," 10 U.S.C. § 821. Whatever the substance and content of the term "regularly constituted" as interpreted in this and any [*138] later cases, there seems little doubt that it relies upon the importance of standards deliberated upon and chosen in advance of crisis, under a system where the single power of the Executive is checked by other constitutional mechanisms. All of which returns us to the point of beginning -- that domestic statutes control this case. If Congress, after due consideration, deems it appropriate to change the controlling statutes, in conformance with the Constitution and other laws, it has the power and prerogative to do so.
I join the Court's opinion, save Parts V and VI-D-iv. To state my reasons for this reservation, and to show my agreement with the remainder of the Court's analysis by identifying particular deficiencies in the military commissions at issue, this separate opinion seems appropriate.
I
Trial by military commission raises separation-of-powers
concerns of the highest order. Located within a single branch, these courts
carry the risk that offenses will be defined, prosecuted, and adjudicated by
executive officials without independent review. Cf. Loving v.
The proper framework for assessing whether Executive actions
are authorized is the three-part scheme used by Justice Jackson in his opinion
in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). "When
the President acts pursuant to an express or implied authorization of Congress,
his authority is at its maximum, for it includes all that he possesses in his
own right plus all that Congress can delegate."
In this case, as the Court observes, the [*140] President has acted in a field with a history of congressional participation and regulation. Ante, at 28-30, 55-57. In the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 801 et seq., which Congress enacted, building on earlier statutes, in 1950, see Act of May 5, 1950, ch. 169, 64 Stat. 107, and later amended, see, e.g., Military Justice Act of 1968, 82 Stat. 1335, Congress has set forth governing principles for military courts. The UCMJ as a whole establishes an intricate system of military justice. It authorizes courts-martial in various forms, 10 U.S.C. §§ 816-820 (2000 ed. and Supp. III); it regulates the organization and procedure of those courts, e.g., §§ 822-835, 851-854; it defines offenses, §§ 877-934, and rights for the accused, e.g., §§ 827(b)-(c), 831, 844, 846, 855 (2000 ed.); and it provides mechanisms for appellate review, §§ 859-876b (2000 ed. and Supp. III). As explained below, the statute further recognizes that special military commissions may be convened to try war crimes. See infra, at 5-6; § 821 (2000 ed.). While these laws provide authority for certain forms of military courts, they also [*141] impose limitations, at least two of which control this case. If the President has exceeded these limits, this becomes a case of conflict between Presidential and congressional action -- a case within Justice Jackson's third category, not the second or first.
One limit on the President's authority is contained in § 836 of the UCMJ. That section provides:
"(a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.
"(b) All rules and regulations made under this article shall be uniform insofar as practicable." 10 U.S.C. § 836 (2000 ed.).
In this provision the statute allows the President to implement and build on the UCMJ's framework by adopting procedural regulations, [*142] subject to three requirements: (1) Procedures for military courts must conform to district-court rules insofar as the President "considers practicable"; (2) the procedures may not be contrary to or inconsistent with the provisions of the UCMJ; and (3) "insofar as practicable" all rules and regulations under § 836 must be uniform, a requirement, as the Court points out, that indicates the rules must be the same for military commissions as for courts-martial unless such uniformity is impracticable, ante, at 57, 59, and n. 50.
As the Court further instructs, even assuming the first and second requirements of § 836 are satisfied here -- a matter of some dispute, see ante, at 57-59 -- the third requires us to compare the military-commission procedures with those for courts-martial and determine, to the extent there are deviations, whether greater uniformity would be practicable. Ante, at 59-62. Although we can assume the President's practicability judgments are entitled to some deference, the Court observes that Congress' choice of language in the uniformity provision of 10 U.S.C. § 836(b) contrasts with the language of § 836(a). This difference suggests, [*143] at the least, a lower degree of deference for § 836(b) determinations. Ante, at 59-60. The rules for military courts may depart from federal-court rules whenever the President "considers" conformity impracticable, § 836(a); but the statute requires procedural uniformity across different military courts "insofar as [uniformity is] practicable," § 836(b), not insofar as the President considers it to be so. The Court is right to conclude this is of relevance to our decision. Further, as the Court is also correct to conclude, ante, at 60, the term "practicable" cannot be construed to permit deviations based on mere convenience or expedience. "Practicable" means "feasible," that is, "possible to practice or perform" or "capable of being put into practice, done, or accomplished." Webster's Third New International Dictionary 1780 (1961). Congress' chosen language, then, is best understood to allow the selection of procedures based on logistical constraints, the accommodation of witnesses, the security of the proceedings, and the like. Insofar as the "pretrial, trial, and post-trial procedures" for the military commissions at issue deviate from court-martial practice, the deviations [*144] must be explained by some such practical need.
In addition to § 836, a second UCMJ provision, 10 U.S.C. § 821, requires us to compare the commissions at issue to courts-martial. This provision states:
"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."
In § 821 Congress has addressed the possibility that special
military commissions -- criminal courts other than courts-martial -- may at
times be convened. At the same time, however, the President's authority to
convene military commissions is limited: It extends only to "offenders or
offenses" that "by statute or by the law of war may be tried by"
such military commissions. Ibid.; see also ante, at 28-29. The Government does
not claim to base the charges against Hamdan on a statute; instead it invokes
the law of war. That law, as the Court explained in Ex parte Quirin, 317 U.S. 1
(1942), [*145] derives from "rules
and precepts of the law of nations"; it is the body of international law
governing armed conflict.
The Court is correct to concentrate on one provision of the
law of war that is applicable to our Nation's armed conflict with al Qaeda in
The dissent by JUSTICE THOMAS argues that Common Article 3
nonetheless is irrelevant to this case because in Johnson v. Eisentrager, 339
U.S. 763 (1950), it was said to be the "obvious scheme" of the 1929
Geneva Convention that "rights of alien enemies are vindicated under it
only through protests and intervention of protecting powers," i.e.,
signatory states, id., at 789, n. 14. As the Court explains, ante, at 63-65,
this language from Eisentrager is not controlling here. Even assuming the
Eisentrager analysis has some bearing upon the analysis of the broader 1949
Conventions and that, in consequence, rights are vindicated "under [those
Conventions]" only through protests and intervention, 339 U.S., at 789, n.
14, [*147] Common Article 3 is
nonetheless relevant to the question of authorization under § 821. Common
Article 3 is part of the law of war that Congress has directed the President to
follow in establishing military commissions. Ante, at 66-67. Consistent with
that view, the
In another military commission case, In re Yamashita, 327
U.S. 1 (1946), the Court likewise considered on the merits -- without any
caveat about remedies under the Convention -- a claim that an alleged violation
of the 1929 Convention "established want of authority in the commission to
proceed with the trial."
Assuming the President has authority to establish a special military commission to try Hamdan, the commission must satisfy Common Article 3's requirement of a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," 6 U.S. T., at 3318. [*148] The terms of this general standard are yet to be elaborated and further defined, but Congress has required compliance with it by referring to the "law of war" in § 821. The Court correctly concludes that the military commission here does not comply with this provision.
Common Article 3's standard of a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," ibid., supports, at the least, a uniformity principle similar to that codified in § 836(b). The concept of a "regularly constituted court" providing "indispensable" judicial guarantees requires consideration of the system of justice under which the commission is established, though no doubt certain minimum standards are applicable. See ante, at 69-70; 1 Int'l Committee of the Red Cross, Customary International Humanitarian Law 355 (2005) (explaining that courts are "regularly constituted" under Common Article 3 if they are "established and organised in accordance with the laws and procedures already in force in a country").
The regular military courts in our system are the
courts-martial established by congressional statutes. Acts of Congress confer
[*149] on those courts the jurisdiction
to try "any person" subject to war crimes prosecution. 10 U.S.C. §
818. As the Court explains, moreover, while special military commissions have
been convened in previous armed conflicts -- a practice recognized in § 821 --
those military commissions generally have adopted the structure and procedure
of courts-martial. See, e.g., 1 The War of the Rebellion: A Compilation of the
Official Records of the Union and Confederate Armies 248 (2d series 1894)
(Civil War general order requiring that military commissions "be
constituted in a similar manner and their proceedings be conducted according to
the same general rules as courts-martial in order to prevent abuses which might
otherwise arise"); W. Winthrop, Military Law and Precedents 835, n. 81
(rev. 2d ed. 1920) ("Military commissions are constituted and composed,
and their proceedings are conducted, similarly to general courts-martial");
1 United Nations War Crimes Commission, Law Reports of Trials of War Criminals
116-117 (1947) (reprint 1997) (hereinafter Law Reports) (discussing post-World
War II regulations requiring that military commissions "have regard
for" rules of [*150] procedure and
evidence applicable in general courts-martial); see also ante, at 53-57; post,
at 31, n. 15 (THOMAS, J., dissenting). Today, moreover, § 836(b) -- which took
effect after the military trials in the World War II cases invoked by the
dissent, see Madsen v. Kinsella, 343 U.S. 341, 344-345, and n. 6 (1952);
Yamashita, supra, at 5; Quirin, 317 U.S., at 23 -- codifies this presumption of
uniformity at least as to "pretrial, trial, and post-trial
procedures." Absent more concrete statutory guidance, this historical and
statutory background -- which suggests that some practical need must justify
deviations from the court-martial model -- informs the understanding of which
military courts are "regularly constituted" under
In addition, whether or not the possibility, contemplated by the regulations here, of midtrial procedural changes could by itself render a military commission impermissibly irregular, ante, at 70, n. 65; see also Military Commission Order No. 1, § 11 (Aug. 31, 2005), App. to Brief for Petitioner 46a-72a (hereinafter MCO), an acceptable degree of independence from the [*151] Executive is necessary to render a commission "regularly constituted" by the standards of our Nation's system of justice. And any suggestion of Executive power to interfere with an ongoing judicial process raises concerns about the proceedings' fairness. Again, however, courts-martial provide the relevant benchmark. Subject to constitutional limitations, see Ex parte Milligan, 4 Wall. 2 (1866), Congress has the power and responsibility to determine the necessity for military courts, and to provide the jurisdiction and procedures applicable to them. The guidance Congress has provided with respect to courts-martial indicates the level of independence and procedural rigor that Congress has deemed necessary, at least as a general matter, in the military context.
At a minimum a military commission like the one at issue -- a commission specially convened by the President to try specific persons without express congressional authorization -- can be "regularly constituted" by the standards of our military justice system only if some practical need explains deviations from court-martial practice. In this regard the standard of Common Article 3, applied here in conformity with [*152] § 821, parallels the practicability standard of § 836(b). Section 836, however, is limited by its terms to matters properly characterized as procedural -- that is, "pretrial, trial, and post-trial procedures" -- while Common Article 3 permits broader consideration of matters of structure, organization, and mechanisms to promote the tribunal's insulation from command influence. Thus the combined effect of the two statutes discussed here -- §§ 836 and 821 -- is that considerations of practicability must support departures from court-martial practice. Relevant concerns, as noted earlier, relate to logistical constraints, accommodation of witnesses, security of the proceedings, and the like, not mere expedience or convenience. This determination, of course, must be made with due regard for the constitutional principle that congressional statutes can be controlling, including the congressional direction that the law of war has a bearing on the determination.
These principles provide the framework for an analysis of the specific military commission at issue here.
II
In assessing the validity of Hamdan's military commission
the precise circumstances of this case bear emphasis. The allegations
[*153] against Hamdan are undoubtedly
serious. Captured in Afghanistan during our Nation's armed conflict with the
Taliban and al Qaeda -- a conflict that continues as we speak -- Hamdan stands
accused of overt acts in furtherance of a conspiracy to commit terrorism:
delivering weapons and ammunition to al Qaeda, acquiring trucks for use by
Osama bin Laden's bodyguards, providing security services to bin Laden, and
receiving weapons training at a terrorist camp. App. to Pet. for Cert. 65a-67a.
Nevertheless, the circumstances of Hamdan's trial present no exigency requiring
special speed or precluding careful consideration of evidence. For roughly four
years, Hamdan has been detained at a permanent
Against this background, the Court is correct to conclude that the military commission the President has convened to try Hamdan is unauthorized. Ante, at 62, 69-70, 72. The following analysis, which expands on the Court's discussion, explains my reasons for reaching this conclusion. [*154]
To begin with, the structure and composition of the military commission deviate from conventional court-martial standards. Although these deviations raise questions about the fairness of the trial, no evident practical need explains them.
Under the UCMJ, courts-martial are organized by a
"convening authority" -- either a commanding officer, the Secretary
of Defense, the Secretary concerned, or the President. 10 U.S.C. §§ 822-824
(2000 ed. and Supp. III). The convening authority refers charges for trial,
Manual for Courts-Martial,
Against the background of these significant [*156] powers for the Appointing Authority, which in
certain respects at least conform to ordinary court-martial standards, the
regulations governing the commissions at issue make several noteworthy
departures. At a general court-martial -- the only type authorized to impose
penalties of more than one year's incarceration or to adjudicate offenses
against the law of war, R. C. M. 201(f); 10 U.S.C. §§ 818-820 (2000 ed. and
Supp. III) -- the presiding officer who rules on legal issues must be a
military judge. R. C. M. 501(a)(1), 801(a)(4)-(5); 10 U.S.C. § 816(1) (2000
ed., Supp. III); see also R. C. M. 201(f)(2)(B)(ii) (likewise requiring a
military judge for certain other courts-martial); 10 U.S.C. § 819 (2000 ed. and
Supp. III) (same). A military judge is an officer who is a member of a state or
federal bar and has been specially certified for judicial duties by the Judge
Advocate General for the officer's Armed Service. R. C. M. 502(c); 10 U.S.C. §
826(b). To protect their independence, military judges at general
courts-martial are "assigned and directly responsible to the Judge
Advocate General or [*157] the Judge
Advocate General's designee." R. C. M. 502(c). They must be detailed to
the court, in accordance with applicable regulations, "by a person assigned
as a military judge and directly responsible to the Judge Advocate General or
the Judge Advocate General's designee." R. C. M. 503(b); see also 10
U.S.C. § 826(c); see generally Weiss v.
The Appointing Authority, moreover, exercises supervisory powers that continue during trial. Any interlocutory question "the disposition of which would effect a termination of proceedings with respect to a charge" is subject to decision not by the presiding officer, but by the Appointing Authority. § 4(A)(5)(e) (stating that the presiding officer "shall certify" such questions to the Appointing Authority). Other interlocutory questions [*158] may be certified to the Appointing Authority as the presiding officer "deems appropriate." Ibid. While in some circumstances the Government may appeal certain rulings at a court-martial -- including "an order or ruling that terminates the proceedings with respect to a charge or specification," R. C. M. 908(a); see also 10 U.S.C. § 862(a) -- the appeals go to a body called the Court of Criminal Appeals, not to the convening authority. R. C. M. 908; 10 U.S.C. § 862(b); see also R. C. M. 1107 (requiring the convening authority to approve or disapprove the findings and sentence of a court-martial but providing for such action only after entry of sentence and restricting actions that increase penalties); 10 U.S.C. § 860 (same); cf. § 837(a) (barring command influence on court-martial actions). The Court of Criminal Appeals functions as the military's intermediate appeals court; it is established by the Judge Advocate General for each Armed Service and composed of appellate military judges. R. C. M. 1203; 10 U.S.C. § 866. This is another means in which, by structure and tradition, the court-martial [*159] process is insulated from those who have an interest in the outcome of the proceedings.
Finally, in addition to these powers with respect to the presiding officer, the Appointing Authority has greater flexibility in appointing commission members. While a general court-martial requires, absent a contrary election by the accused, at least five members, R. C. M. 501(a)(1); 10 U.S.C. § 816(1) (2000 ed. and Supp. III), the Appointing Authority here is free, as noted earlier, to select as few as three. MCO No. 1, § 4(A)(2). This difference may affect the deliberative process and the prosecution's burden of persuasion.
As compared to the role of the convening authority in a court-martial, the greater powers of the Appointing Authority here -- including even the resolution of dispositive issues in the middle of the trial -- raise concerns that the commission's decisionmaking may not be neutral. If the differences are supported by some practical need beyond the goal of constant and ongoing supervision, that need is neither apparent from the record nor established by the Government's submissions.
It is no answer that, at the end of
the day, the Detainee Treatment Act [*160]
of 2005 (DTA), 119 Stat. 2739, affords military-commission defendants
the opportunity for judicial review in federal court. As the Court is correct
to observe, the scope of that review is limited, DTA § 1005(e)(3)(D), id., at
2743; see also ante, at 8-9, and the review is not automatic if the defendant's
sentence is under 10 years, § 1005(e)(3)(B), ibid. Also, provisions for review
of legal issues after trial cannot correct for structural defects, such as the
role of the Appointing Authority, that can cast doubt on the factfinding
process and the presiding judge's exercise of discretion during trial. Before
military-commission defendants may obtain judicial review, furthermore, they
must navigate a military review process that again raises fairness concerns. At
the outset, the Appointing Authority (unless the Appointing Authority is the
Secretary of Defense) performs an "administrative review" of
undefined scope, ordering any "supplementary proceedings" deemed
necessary. MCO No. 1 § 6(H)(3). After that the case is referred to a
three-member Review Panel composed of officers selected by the Secretary of
Defense. § 6(H)(4); MCI No. 9, § 4(B) (Oct. 11, 2005), available [*161] at www.defenselink.mil/news/Oct2005/
d20051014MCI9.pdf. Though the Review Panel may return the case for further
proceedings only if a majority "forms a definite and firm conviction that
a material error of law occurred," MCO No. 1, § 6(H)(4); MCI No. 9, §
4(C)(1)(a), only one member must have "experience as a judge," MCO
No. 1, § 6(H)(4); nothing in the regulations requires that other panel members
have legal training. By comparison to the review of court-martial judgments
performed by such independent bodies as the Judge Advocate General, the Court
of Criminal Appeals, and the Court of Appeals for the Armed Forces, 10 U.S.C.
§§ 862, 864, 866, 867, 869, the review process here lacks structural
protections designed to help ensure impartiality.
These structural differences between the military
commissions and courts-martial -- the concentration of functions, including
legal decisionmaking, in a single executive official; the less rigorous
standards for composition of the tribunal; and the creation of special review
procedures in place of institutions created and regulated by Congress -- remove
safeguards that are important to the fairness of the proceedings [*162] and the independence of the court. Congress
has prescribed these guarantees for courts-martial; and no evident practical
need explains the departures here. For these reasons the commission cannot be
considered regularly constituted under
Apart from these structural issues, moreover, the basic procedures for the commissions deviate from procedures for courts-martial, in violation of § 836(b). As the Court explains, ante, at 51, 61, the Military Commission Order abandons the detailed Military Rules of Evidence, which are modeled on the Federal Rules of Evidence in conformity with § 836(a)'s requirement of presumptive compliance with district-court rules.
Instead, the order imposes just one evidentiary rule: "Evidence shall be admitted if . . . the evidence would have probative value to a reasonable person," MCO No. 1, § 6(D)(1). Although it is true some military commissions applied an amorphous evidence standard in the past, see, e.g., 1 Law Reports 117-118 (discussing World War II military commission orders); Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942) [*163] (order convening military commission to try Nazi saboteurs), the evidentiary rules for those commissions were adopted before Congress enacted the uniformity requirement of 10 U.S.C. § 836(b) as part of the UCMJ, see Act of May 5, 1950, ch. 169, 64 Stat. 107, 120, 149. And while some flexibility may be necessary to permit trial of battlefield captives like Hamdan, military statutes and rules already provide for introduction of deposition testimony for absent witnesses, 10 U.S.C. § 849(d); R. C. M. 702, and use of classified information, Military Rule Evid. 505. Indeed, the deposition-testimony provision specifically mentions military commissions and thus is one of the provisions the Government concedes must be followed by the commission at issue. See ante, at 58. That provision authorizes admission of deposition testimony only if the witness is absent for specified reasons, § 849(d) -- a requirement that makes no sense if military commissions may consider all probative evidence. Whether or not this conflict renders the rules at issue "contrary to or inconsistent with" the UCMJ under § 836(a), it creates a uniformity problem under § [*164] 836(b).
The rule here could permit admission of multiple hearsay and other forms of evidence generally prohibited on grounds of unreliability. Indeed, the commission regulations specifically contemplate admission of unsworn written statements, MCO No. 1, § 6(D)(3); and they make no provision for exclusion of coerced declarations save those "established to have been made as a result of torture," MCI No. 10, § 3(A) (Mar. 24, 2006), available at www. defenselink.mil/news/Mar2006/d20060327MCI10.pdf; cf. Military Rule Evid. 304(c)(3) (generally barring use of statements obtained "through the use of coercion, unlawful influence, or unlawful inducement"); 10 U.S.C. § 831(d) (same). Besides, even if evidence is deemed nonprobative by the presiding officer at Hamdan's trial, the military-commission members still may view it. In another departure from court-martial practice the military commission members may object to the presiding officer's evidence rulings and determine themselves, by majority vote, whether to admit the evidence. MCO No. 1, § 6(D)(1); cf. R. C. M. 801(a)(4), (e)(1) (providing that the military judge at a court-martial determines all questions of [*165] law).
As the Court explains, the Government has made no demonstration of practical need for these special rules and procedures, either in this particular case or as to the military commissions in general, ante, at 59-61; nor is any such need self-evident. For all the Government's regulations and submissions reveal, it would be feasible for most, if not all, of the conventional military evidence rules and procedures to be followed.
In sum, as presently structured, Hamdan's military commission exceeds the bounds Congress has placed on the President's authority in §§ 836 and 821 of the UCMJ. Because Congress has prescribed these limits, Congress can change them, requiring a new analysis consistent with the Constitution and other governing laws. At this time, however, we must apply the standards Congress has provided. By those standards the military commission is deficient.
III
In light of the conclusion that the military commission here is unauthorized under the UCMJ, I see no need to consider several further issues addressed in the plurality opinion by JUSTICE STEVENS and the dissent by JUSTICE THOMAS.
First, I would not decide whether Common Article 3's
standard -- a "regularly [*166]
constituted court affording all the judicial guarantees which are
recognized as indispensable by civilized peoples," 6 U.S. T., at 3320
(P(1)(d)) -- necessarily requires that the accused have the right to be present
at all stages of a criminal trial. As JUSTICE STEVENS explains, Military
Commission Order No. 1 authorizes exclusion of the accused from the proceedings
if the presiding officer determines that, among other things, protection of
classified information so requires. See §§ 6(B)(3), (D)(5); ante, at 50.
JUSTICE STEVENS observes that these regulations create the possibility of a
conviction and sentence based on evidence Hamdan has not seen or heard -- a
possibility the plurality is correct to consider troubling. Ante, at 71-72, n.
67 (collecting cases); see also In re Oliver, 333
As the dissent by JUSTICE THOMAS points out, however, the regulations bar the presiding officer from admitting secret evidence if doing so would deprive the accused of a "full and fair trial." MCO No. 1, § 6(D)(5)(b); [*167] see also post, at 47. This fairness determination, moreover, is unambiguously subject to judicial review under the DTA. See § 1005(e)(3)(D)(i), 119 Stat. 2743 (allowing review of compliance with the "standards and procedures" in Military Commission Order No. 1). The evidentiary proceedings at Hamdan's trial have yet to commence, and it remains to be seen whether he will suffer any prejudicial exclusion.
There should be reluctance, furthermore, to reach unnecessarily the question whether, as the plurality seems to conclude, ante, at 70, Article 75 of Protocol I to the Geneva Conventions is binding law notwithstanding the earlier decision by our Government not to accede to the Protocol. For all these reasons, and without detracting from the importance of the right of presence, I would rely on other deficiencies noted here and in the opinion by the Court -- deficiencies that relate to the structure and procedure of the commission and that inevitably will affect the proceedings -- as the basis for finding the military commissions lack authorization under 10 U.S.C. § 836 and fail to be regularly constituted under Common Article 3 and § 821.
I likewise [*168] see
no need to address the validity of the conspiracy charge against Hamdan -- an
issue addressed at length in Part V of JUSTICE STEVENS' opinion and in Part
II-C of JUSTICE THOMAS' dissent. See ante, at 36-49; post, at 12-28. In light
of the conclusion that the military commissions at issue are unauthorized Congress
may choose to provide further guidance in this area. Congress, not the Court,
is the branch in the better position to undertake the "sensitive task of
establishing a principle not inconsistent with the national interest or
international justice." Banco Nacional de Cuba v. Sabbatino, 376
Finally, for the same reason, I express no view on the merits of other limitations on military commissions described as elements of the common law of war in Part V of JUSTICE STEVENS' opinion. See ante, at 31-36, 48-49; post, at 6-12.
With these observations I join the
Court's opinion with the exception of Parts V and VI-D-iv.
SALIM AHMED HAMDAN, PETITIONER v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, ET AL.