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''Hamdan v. Rumsfeld'', 548 U.S. 557 (2006), is a
case Case or CASE may refer to: Containers * Case (goods), a package of related merchandise * Cartridge case or casing, a firearm cartridge component * Bookcase, a piece of furniture used to store books * Briefcase or attaché case, a narrow box to ca ...
in which the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. Federal tribunals in the United States, federal court cases, and over Stat ...
held that
military commissions Military justice (also military law) is the legal system (bodies of law and procedure) that governs the conduct of the active-duty personnel of the armed forces of a country. In some nation-states, civil law and military law are distinct bodi ...
set up by the Bush administration to try detainees at Guantanamo Bay violated both the
Uniform Code of Military Justice The Uniform Code of Military Justice (UCMJ, 10 U.S.C. §§ 801–946 is the foundation of Military justice, military law in the United States. It was established by the United States Congress in accordance with the authority given by the United S ...
(UCMJ) and the
Geneva Conventions upright=1.15, Original document in single pages, 1864 The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conv ...
ratified by the U.S. ''Hamdan'' raises several legal issues: Whether the
United States Congress The United States Congress is the legislature of the federal government of the United States. It is Bicameralism, bicameral, composed of a lower body, the United States House of Representatives, House of Representatives, and an upper body, ...
may pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place; whether the special military commissions established by the
executive branch The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a state. In political systems ...
violated
federal law Federal law is the body of law created by the federal government of a country. A federal government is formed when a group of political units, such as states or provinces join in a federation, delegating their individual sovereignty and many ...
(including the UCMJ and treaty obligations); and whether courts can enforce the articles of the Geneva Conventions.''Hamdan v. Rumsfeld''
, '' Duke Law's Supreme Court Online'', 2005.
An unusual aspect of the case was an
amicus brief An ''amicus curiae'' (; ) is an individual or organization who is not a party to a legal case, but who is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. The decision on ...
filed by Senators
Jon Kyl Jon Llewellyn Kyl ( ; born April 25, 1942) is an American politician and lobbyist who served as a United States Senator for Arizona from 1995 to 2013 and again in 2018. A Republican, he held both of Arizona's Senate seats at different times, s ...
and
Lindsey Graham Lindsey Olin Graham (born July 9, 1955) is an American lawyer and politician serving as the senior United States senator from South Carolina, a seat he has held since 2003. A member of the Republican Party, Graham chaired the Senate Committee on ...
, which presented an "extensive colloquy" added to the Congressional record as evidence that "Congress was aware" that the
Detainee Treatment Act The Detainee Treatment Act of 2005 (DTA) is an Act of the United States Congress that was signed into law by President George W. Bush on 30 December 2005. Offered as an amendment to a supplemental defense spending bill, it contains provisions re ...
of 2005 would strip the Supreme Court of jurisdiction to hear cases brought by the Guantanamo detainees. Because these statements were not included in the December 21 debate at the time,
Emily Bazelon Emily Bazelon (born March 4, 1971) is an American journalist. She is a staff writer for ''The New York Times Magazine,'' a senior research fellow at Yale Law School, and co-host of the ''Slate'' podcast ''Political Gabfest''. She is a former sen ...
of ''
Slate Slate is a fine-grained, foliated, homogeneous metamorphic rock derived from an original shale-type sedimentary rock composed of clay or volcanic ash through low-grade regional metamorphism. It is the finest grained foliated metamorphic rock. ...
'' magazine has argued that their brief was an attempt to mislead the court. After hearing oral arguments on March 28, 2006, on June 29, 2006, the Court issued a 5–3 decision holding that it had jurisdiction; that the administration lacked either the constitutional power or congressional authorization to establish these particular military commissions; that, absent such authority, the military commissions had to comply with the "ordinary laws" of the U.S. and of war, which include the UCMJ and the Geneva Conventions incorporated therein; and that Hamdan's trial, having violated the rights and procedures under both bodies of law, was illegal.In Loss for Bush, Supreme Court Blocks War-Crimes Trials at Guantanamo
,
Associated Press The Associated Press (AP) is an American non-profit news agency headquartered in New York City. Founded in 1846, it operates as a cooperative, unincorporated association. It produces news reports that are distributed to its members, U.S. new ...
, as reported by ''
The New York Times ''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid ...
'', June 29, 2006.


Background

The plaintiff was
Salim Ahmed Hamdan Salim Ahmed Hamdan () (born February 25, 1968) is a Yemeni man, captured during the invasion of Afghanistan, declared by the United States government to be an illegal enemy combatant and held as a detainee at Guantanamo Bay from 2002 to November ...
, a citizen of
Yemen Yemen (; ar, ٱلْيَمَن, al-Yaman), officially the Republic of Yemen,, ) is a country in Western Asia. It is situated on the southern end of the Arabian Peninsula, and borders Saudi Arabia to the north and Oman to the northeast and ...
who worked as a bodyguard and chauffeur for
Osama bin Laden Osama bin Mohammed bin Awad bin Laden (10 March 1957 – 2 May 2011) was a Saudi-born extremist militant who founded al-Qaeda and served as its leader from 1988 until his death in 2011. Ideologically a pan-Islamist, his group is designated ...
. Hamdan had formerly worked in Afghanistan on an agricultural project that Bin Laden had developed. Hamdan was captured by militia forces during the
invasion of Afghanistan In late 2001, the United States and its close allies invaded Afghanistan and toppled the Taliban government. The invasion's aims were to dismantle al-Qaeda, which had executed the September 11 attacks, and to deny it a safe base of operation ...
in the fall of 2001 and turned over to the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
. In 2002, he was sent by the U.S. to its new
Guantanamo Bay detention camp The Guantanamo Bay detention camp ( es, Centro de detención de la bahía de Guantánamo) is a United States military prison located within Guantanamo Bay Naval Base, also referred to as Guantánamo, GTMO, and Gitmo (), on the coast of Gua ...
at its naval base in
Cuba Cuba ( , ), officially the Republic of Cuba ( es, República de Cuba, links=no ), is an island country comprising the island of Cuba, as well as Isla de la Juventud and several minor archipelagos. Cuba is located where the northern Caribb ...
. In July 2004, Hamdan was charged with conspiracy to commit terrorism, and the Bush administration made arrangements to try him before a military commission, established by the Department of Defense under Military Commission Order No. 1 of March 21, 2002. He was assigned a defense counsel, LCDR Charles D. Swift from the
Navy JAG A navy, naval force, or maritime force is the branch of a nation's armed forces principally designated for naval warfare, naval and amphibious warfare; namely, lake-borne, riverine, littoral zone, littoral, or ocean-borne combat operations and ...
, who with a legal team filed a petition for Hamdan in US District Court for a
writ of habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
, challenging the constitutionality of the military commission, and saying that it lacked the protections required under the
Geneva Conventions upright=1.15, Original document in single pages, 1864 The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conv ...
and United States
Uniform Code of Military Justice The Uniform Code of Military Justice (UCMJ, 10 U.S.C. §§ 801–946 is the foundation of Military justice, military law in the United States. It was established by the United States Congress in accordance with the authority given by the United S ...
. Following the U.S. Supreme Court ruling in ''
Hamdi v. Rumsfeld ''Hamdi v. Rumsfeld'', 542 U.S. 507 (2004), is a United States Supreme Court case in which the Court recognized the power of the U.S. government to detain enemy combatants, including U.S. citizens, but ruled that detainees who are U.S. citizens mu ...
'' (2004), which established that detainees had the right of ''
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, ...
'' to challenge their detention, Hamdan was granted a review before the
Combatant Status Review Tribunal The Combatant Status Review Tribunals (CSRT) were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were estab ...
. It determined that he was eligible for detention by the United States as an
enemy combatant Enemy combatant is a person who, either lawfully or unlawfully, engages in hostilities for the other side in an armed conflict. Usually enemy combatants are members of the armed forces of the state with which another state is at war. In the case ...
or person of interest. The defendants in this case included many
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
government officials allegedly responsible for Hamdan's detention; the short name of the case includes only the first-named defendant, then-
Secretary of Defense A defence minister or minister of defence is a cabinet official position in charge of a ministry of defense, which regulates the armed forces in sovereign states. The role of a defence minister varies considerably from country to country; in so ...
Donald Rumsfeld Donald Henry Rumsfeld (July 9, 1932 – June 29, 2021) was an American politician, government official and businessman who served as Secretary of Defense from 1975 to 1977 under president Gerald Ford, and again from 2001 to 2006 under Preside ...
.


District and Appeals Court rulings

After reviewing Hamdan's habeas petition, Judge James Robertson of the
United States District Court for the District of Columbia The United States District Court for the District of Columbia (in case citations, D.D.C.) is a federal district court in the District of Columbia. It also occasionally handles (jointly with the United States District Court for the District ...
ruled in the detainee's favor. He found that the United States could not hold a military commission unless it was first shown that the detainee was not a
prisoner of war A prisoner of war (POW) is a person who is held captive by a belligerent power during or immediately after an armed conflict. The earliest recorded usage of the phrase "prisoner of war" dates back to 1610. Belligerents hold prisoners of ...
. On July 15, 2005, a
United States Court of Appeals for the District of Columbia Circuit The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate co ...
three-judge panel: A. Raymond Randolph,
John Roberts John Glover Roberts Jr. (born January 27, 1955) is an American lawyer and jurist who has served as the 17th chief justice of the United States since 2005. Roberts has authored the majority opinion in several landmark cases, including '' Nat ...
and Stephen F. Williams, unanimously reversed the decision of the District Court. Judge Randolph, who wrote the decision, cited the following reasons for the legality of the military commission: # Military commissions are legitimate forums to try
enemy combatants Enemy combatant is a person who, either lawfully or unlawfully, engages in hostilities for the other side in an armed conflict. Usually enemy combatants are members of the armed forces of the state with which another state is at war. In the case ...
because they have been approved by
Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...
. # The Geneva Convention is a treaty between nations and as such it does not confer individual rights and remedies. # Even if the Geneva Convention could be enforced in U.S. courts, it would not be of assistance to Hamdan at the time because the war against
al-Qaeda Al-Qaeda (; , ) is an Islamic extremist organization composed of Salafist jihadists. Its members are mostly composed of Arabs, but also include other peoples. Al-Qaeda has mounted attacks on civilian and military targets in various countr ...
was not between two countries, and the Convention guarantees only a certain standard of judicial procedure—a "competent tribunal"—without speaking to the jurisdiction in which the prisoner must be tried. # Under the terms of the Geneva Convention, al Qaeda and its members are not covered. # Congress authorized such activity by
statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...
. # The judicial branch of the United States government cannot enforce the Convention, thus invalidating Hamdan's argument that he cannot be tried until after his prisoner-of-war status is determined.


Supreme Court decision

On November 7, 2005, the Supreme Court granted
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
to hear the case. The petition was filed on behalf of Hamdan by
Neal Katyal Neal Kumar Katyal (born March 12, 1970) is an American lawyer and academic. He is a partner at Hogan Lovells and the Paul and Patricia Saunders Professor of National Security Law at Georgetown University Law Center. During the Obama administrati ...
of
Georgetown University Law Center The Georgetown University Law Center (Georgetown Law) is the law school of Georgetown University, a private research university in Washington, D.C. It was established in 1870 and is the largest law school in the United States by enrollment and ...
and Lt. Commander Charles Swift of the
U.S. Navy The United States Navy (USN) is the maritime service branch of the United States Armed Forces and one of the eight uniformed services of the United States. It is the largest and most powerful navy in the world, with the estimated tonnage o ...
, an alumnus of
Seattle University School of Law Seattle University School of Law, or Seattle Law School, or SU Law (formerly University of Puget Sound School of Law) is the law school affiliated with Seattle University, the Northwest's largest independent university. The School is accredit ...
. The Seattle law firm
Perkins Coie Perkins Coie is an American multinational law firm headquartered in Seattle, Washington. Founded in 1912, it is recognized as an Am Law 50 firm. It is the largest law firm headquartered in the Pacific Northwest and has 20 offices across the Un ...
provided the additional legal counsel for Hamdan. The case was argued before the court on March 28, 2006. Katyal argued on behalf of Hamdan, and
Paul Clement Paul Drew Clement (born June 24, 1966) is an American lawyer who served as U.S. Solicitor General from 2004 to 2008 and is known for his advocacy before the U.S. Supreme Court. He established his own law firm, Clement & Murphy, in 2022 after l ...
, the
Solicitor General of the United States The solicitor general of the United States is the fourth-highest-ranking official in the United States Department of Justice. Elizabeth Prelogar has been serving in the role since October 28, 2021. The United States solicitor general represent ...
, argued on behalf of the government.
Chief Justice Roberts John Glover Roberts Jr. (born January 27, 1955) is an American lawyer and jurist who has served as the 17th chief justice of the United States since 2005. Roberts has authored the majority opinion in several landmark cases, including ''Nat ...
recused himself because he had previously ruled on this case as part of the three judge panel on the
United States Court of Appeals for the District of Columbia Circuit The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate co ...
. Critics called for Justice
Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
to recuse himself, since he had made allegedly improper comments about the decision of the case prior to hearing oral arguments ("I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy") but he chose not to do so. The Supreme Court announced its decision on June 29, 2006. The Court reversed the ruling of the Court of Appeals, holding that President George W. Bush did not have authority to set up the war crimes tribunals and finding the special military commissions illegal under both military justice law and the Geneva Conventions.


Stevens' opinion for the Court

Associate Justice Associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some sta ...
John Paul Stevens John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...
wrot
the opinion for the Court
which commanded a majority only in part. The Stevens opinion began with the issue of
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. J ...
, denying the U.S. government's motion to dismiss under Section 1005 of the
Detainee Treatment Act of 2005 The Detainee Treatment Act of 2005 (DTA) is an Act of the United States Congress that was signed into law by President George W. Bush on 30 December 2005. Offered as an amendment to a supplemental defense spending bill, it contains provisions re ...
(DTA), which gave the D.C. Circuit Court of Appeals "exclusive" jurisdiction to review decisions of cases being tried before military commissions. Congress did not include language in the DTA that might have precluded Supreme Court jurisdiction, making the government's argument to the Court unpersuasive. The government's argument that '' Schlesinger v. Councilman'' 420 U.S. 738 (1975) precludes Supreme Court review was similarly rejected. ''Councilman'' applied to a member of the U.S. military who was being tried before a military "
court-martial A court-martial or court martial (plural ''courts-martial'' or ''courts martial'', as "martial" is a postpositive adjective) is a military court or a trial conducted in such a court. A court-martial is empowered to determine the guilt of memb ...
". In contrast, Hamdan is not a member of the U.S. military, and would be tried before a military "commission", not a court-martial. To the court, the more persuasive precedent was '' Ex parte Quirin'', in which the court recognized its duty to enforce relevant Constitutional protections by convening a special Term and expediting review of a trial by military convention. The opinion explicitly stated that, because DTA did not bar it from considering the petition, it was unnecessary to decide whether laws unconditionally barring habeas corpus petitions would unconstitutionally violate the
Suspension Clause Article One of the United States Constitution establishes the legislative branch of the federal government, the United States Congress. Under Article One, Congress is a bicameral legislature consisting of the House of Representatives and the Sen ...
. The opinion then addressed the substantive issues of the case. It explicitly did not decide whether the President possessed the Constitutional power to convene military commissions like the one created to try Hamdan. Even if he possessed such power, those tribunals would either have to be sanctioned by the "laws of war", as codified by Congress in Article 21 of the
Uniform Code of Military Justice The Uniform Code of Military Justice (UCMJ, 10 U.S.C. §§ 801–946 is the foundation of Military justice, military law in the United States. It was established by the United States Congress in accordance with the authority given by the United S ...
(UCMJ), or authorized by statute. As to the statutory authorization, there is nothing in the Authorization for Use of Military Force (AUMF) "even hinting" at expanding the President's war powers beyond those enumerated in Art. 21. Instead, the AUMF, the UCMJ, and the DTA "at most acknowledge" the President's authority to convene military commissions only where justified by the exigencies of war, but still operating within the laws of war. As to the
laws of war The law of war is the component of international law that regulates the conditions for initiating war ('' jus ad bellum'') and the conduct of warring parties (''jus in bello''). Laws of war define sovereignty and nationhood, states and territ ...
, to the majority these necessarily include the UCMJ and the
Geneva Conventions upright=1.15, Original document in single pages, 1864 The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conv ...
, each of which require more protections than the military commission provides. The UCMJ, Art. 36 (b), requires that rules applied in courts-martial and military commissions be "uniform insofar as practicable". Stevens found several substantial deviations, including: * The defendant and the defendant's attorney may be forbidden to view certain evidence used against the defendant; the defendant's attorney may be forbidden to discuss certain evidence with the defendant; * Evidence judged to have any probative value may be admitted, including
hearsay Hearsay evidence, in a legal forum, is testimony from an under-oath witness who is reciting an out-of-court statement, the content of which is being offered to prove the truth of the matter asserted. In most courts, hearsay evidence is inadmiss ...
, unsworn live testimony, and statements gathered through torture; and * Appeals are not heard by courts, but only within the Executive Branch (with an exception not here relevant). These deviations made the commissions violate the UCMJ. The majority also found that the procedures in question violate the "at least" applicable Common Article 3 of the Geneva Conventions. It found that the D.C. Court of Appeals erred in concluding that the Conventions did not apply: # It erroneously relied on '' Johnson v. Eisentrager'', which does not legally control in Hamdan's case because there was then no deviation between the procedures used in the tribunal and those used in courts-martial; # It erroneously ruled that the Geneva Conventions do not apply because Art. 3 affords minimal protection to combatants "in the territory of" a signatory; and # Those minimal protections include being tried by a "regularly constituted court", which the military commission is not. Because the military commission does not meet the requirements of the Uniform Code of Military Justice or of the Geneva Convention, it violates the laws of war and therefore cannot be used to try Hamdan. The Court did not hear the question that had decided the district court opinion, namely that Hamdan was entitled to a GCIII Art. 5 hearing instead of a
Combatant Status Review Tribunal The Combatant Status Review Tribunals (CSRT) were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were estab ...
.


Plurality sections

Because Justice
Anthony Kennedy Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...
did not join Stevens' opinion as to several parts, largely on the grounds of judicial
parsimony Parsimony refers to the quality of economy or frugality in the use of resources. Parsimony may also refer to * The Law of Parsimony, or Occam's razor, a problem-solving principle ** Maximum parsimony (phylogenetics), an optimality criterion in p ...
(that is, having decided that the military commissions had no foundation, the core question of the case was decided and the Court did not need to go further), those sections were without a majority in support. In one of these sections, Stevens addressed the issue of whether military commissions can try conspiracy charges. He argued that military commissions are not courts of general jurisdiction, which are able to try any crime; that the court has traditionally held that offenses against the law of war are triable by military commission only when they are clearly defined as war crimes by statute or strong
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
precedent (cf. ''Quirin''). Finally, he found that there was no support in statute or court precedent for law-of-war military commissions trying charges of "
conspiracy A conspiracy, also known as a plot, is a secret plan or agreement between persons (called conspirers or conspirators) for an unlawful or harmful purpose, such as murder or treason, especially with political motivation, while keeping their agr ...
", either in the Geneva Conventions, in the earlier Hague Conventions or at the
Nuremberg Trials The Nuremberg trials were held by the Allies of World War II, Allies against representatives of the defeated Nazi Germany, for plotting and carrying out invasions of other countries, and other crimes, in World War II. Between 1939 and 1945 ...
.


Addressing the dissents

As is common in opinions to which there are dissents, Stevens' opinion addressed the major arguments in dissent. For example: * The majority opinion says that Justice Scalia's argument concerning the jurisdiction-stripping statute (section 1005e(1)) ignores the effective date provision of that very statute (section 1005(h)). * The majority opinion says that the government's contention that the war started on September 11, 2001, undercuts Justice Thomas' argument that it started in 1996. * The majority opinion notes that language in the
Congressional Record The ''Congressional Record'' is the official record of the proceedings and debates of the United States Congress, published by the United States Government Publishing Office and issued when Congress is in session. The Congressional Record Inde ...
that the Scalia dissent cites was inserted into the Record ''after'' the legislation had been enacted, by Senators
Lindsey Graham Lindsey Olin Graham (born July 9, 1955) is an American lawyer and politician serving as the senior United States senator from South Carolina, a seat he has held since 2003. A member of the Republican Party, Graham chaired the Senate Committee on ...
(R-SC) and
Jon Kyl Jon Llewellyn Kyl ( ; born April 25, 1942) is an American politician and lobbyist who served as a United States Senator for Arizona from 1995 to 2013 and again in 2018. A Republican, he held both of Arizona's Senate seats at different times, s ...
(R-AZ), and includes falsified quotations attributed to other persons.


Breyer's concurrence

Justice Breyer Stephen Gerald Breyer ( ; born August 15, 1938) is a retired American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1994 until his retirement in 2022. He was nominated by President Bill Clinton, and rep ...
wrot
a one-page concurring opinion
joined by Justices Kennedy, Souter, and Ginsburg. Breyer contended that the commissions are not necessarily categorically prohibited, as long as Congress approves them:


Kennedy's concurrence

Justice Kennedy Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States from 1988 until his retirem ...
wrot
an opinion concurring in part
joined as to parts I and II by Justices Souter, Ginsburg, and Breyer. In Part One of Kennedy's concurrence, he raises his concern for the separation of powers; specifically, how one branch can control all the elements of a case, including avenues of review and appeal. Part Two describes the differences between the procedures of the military commissions and the procedures prescribed by the UCMJ (fewer jury members, different rules of evidence, etc.). These differences demonstrate that the commissions do not operate under the rules of military courts-martial, and raise issues of neutrality with respect to the military judges involved. The negation of fairness safeguards renders the commission a judicial entity which is not a "regularly constituted court", as required in the Geneva Convention. In sum, Kennedy writes that the commission exceeds congressional bounds, though the Congress is free to re-write the law as they see fit. The third and final Part lists some of Kennedy's reservations. He would not say that the defendant must be present at all stages of the trial. There should be a reluctance to consider the applicability of Article 75 of Protocol I, since the U.S. never signed it and thus it is not binding. Kennedy writes that he feels it was not necessary to delve into the validity of the conspiracy charge, and he expresses no view on the merits of the other limitations of the commission noted in Part V of the Decision.


Scalia's dissent

Justice Scalia wrot

that focuses primarily on issues of jurisdiction, and was joined by Justices Thomas and Alito. Scalia calls the Court's conclusion to hear the case "patently erroneous". His first argument relies on the part of the
Detainee Treatment Act The Detainee Treatment Act of 2005 (DTA) is an Act of the United States Congress that was signed into law by President George W. Bush on 30 December 2005. Offered as an amendment to a supplemental defense spending bill, it contains provisions re ...
(DTA) (effective December 30, 2005) that states " court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." §1005(e)(1), 119 Stat. 2742. Scalia's opinion is that this clause suffices to deny the Supreme Court jurisdiction over the case, calling the majority's reading of the effectiveness provisions of §1005(h), a "mess". He cites '' Bruner v. United States'' and other cases granting "immediate effect in pending cases, absent an explicit statutory reservation". He wrote that in interpreting the language in the DTA, the majority ignored Supreme Court precedents which established that a statute excluding jurisdiction applies to pending cases unless it has clear language saying it does not. Scalia claimed that the majority had made this interpretation "for the flimsiest of reasons". He was referring to the majority's use of Senate floor debate records to bolster their interpretation, writing that it "makes no difference" that the language in support of his position was inserted into the Congressional Record after the law was voted upon. He also accuses the majority of ignoring the President's
signing statement A signing statement is a written pronouncement issued by the President of the United States upon the signing of a bill into law. They are usually printed along with the bill in '' United States Code Congressional and Administrative News'' (USCCAN) ...
. Furthermore, he anticipates that expanding the jurisdictions able to hear writs of habeas corpus from Guantanamo Bay would create excessive load on the court system. In addition, Scalia states that the original military tribunal was not shown to be inadequate. Regarding the application of the
Suspension Clause Article One of the United States Constitution establishes the legislative branch of the federal government, the United States Congress. Under Article One, Congress is a bicameral legislature consisting of the House of Representatives and the Sen ...
of the Constitution, Scalia points to '' Johnson v. Eisentrager''. In its second major argument, Scalia's opinion argues that petitioners such as Hamdan held outside the territorial jurisdiction of the United States lack the right to the writ of ''
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, ...
''. He points in a footnote to ''
Hamdi v. Rumsfeld ''Hamdi v. Rumsfeld'', 542 U.S. 507 (2004), is a United States Supreme Court case in which the Court recognized the power of the U.S. government to detain enemy combatants, including U.S. citizens, but ruled that detainees who are U.S. citizens mu ...
'', under which he claims Hamdan "is already subject to indefinite detention" "after an adverse determination by his
CSRT The Combatant Status Review Tribunals (CSRT) were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were estab ...
". Finally, Justice Scalia chastises the Court for taking
equity Equity may refer to: Finance, accounting and ownership *Equity (finance), ownership of assets that have liabilities attached to them ** Stock, equity based on original contributions of cash or other value to a business ** Home equity, the diff ...
jurisdiction of the case and draws an analogy with '' Schlesinger v. Councilman'', 420 U.S. 738 (1975). In that case, the Supreme Court declined passing judgment on the decision of a military
court-martial A court-martial or court martial (plural ''courts-martial'' or ''courts martial'', as "martial" is a postpositive adjective) is a military court or a trial conducted in such a court. A court-martial is empowered to determine the guilt of memb ...
before it finished its work; Scalia argues that likewise, the military commissions in Cuba have not yet ended their work regarding Hamdan and therefore should not be subject to judicial oversight.


Thomas's dissent

Justice
Clarence Thomas Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 1 ...
rea
his dissent
from the bench when the decision was announced, the first time he did so since his dissent in ''
Stenberg v. Carhart ''Stenberg v. Carhart'', 530 U.S. 914 (2000), was a landmark decision of the US Supreme Court dealing with a Nebraska law which made performing " partial-birth abortion" illegal, without regard for the health of the mother. Nebraska physicians wh ...
'', 530 U.S. 914 (2000). In his dissent he asserted that the courts had no jurisdiction for this case for the reasons described in Scalia's dissent above; that Hamdan is an illegal combatant and therefore not protected by the
Geneva convention upright=1.15, Original document in single pages, 1864 The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conve ...
; that the Geneva convention does not prohibit the special court council proposed; and that the President already had authority to set up the special court council proposed. Citing his dissent in ''
Hamdi v. Rumsfeld ''Hamdi v. Rumsfeld'', 542 U.S. 507 (2004), is a United States Supreme Court case in which the Court recognized the power of the U.S. government to detain enemy combatants, including U.S. citizens, but ruled that detainees who are U.S. citizens mu ...
'', Thomas briefly reprised the roles granted by the Constitution to the three different branches in time of war. He argued that under the framework established in '' Ex parte Quirin'' and '' Youngstown Sheet & Tube Co. v. Sawyer'', President Bush's decision to try Hamdan before a military commission "is entitled to a heavy measure of deference", inasmuch as Congress had authorized the President to use all necessary and appropriate force to prevent future acts of terrorism when it passed the Authorization for Use of Military Force. Thomas disagreed strongly with the plurality's determination that the legality of the charges against Hamdan are doubtful because he was charged "not with an
overt act In criminal law, an overt act is the one that can be clearly proved by evidence and from which criminal intent can be inferred, as opposed to a mere intention in the mind to commit a crime. Such an act, even if innocent ''per se'', can potentiall ...
for which he was caught redhanded ... but with an 'agreement' the inception of which long predated ... the elevant armed conflict. He lambasted the plurality for second-guessing the Executive's judgment, arguing that the Court's disagreement was based upon "little more than its unsupported assertions" and constituted "an unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority". Thomas further disagreed with the plurality's assumption that the date of the enactment of the AUMF constituted the start of war, suggesting that Osama bin Laden's declaration of
jihad Jihad (; ar, جهاد, jihād ) is an Arabic word which literally means "striving" or "struggling", especially with a praiseworthy aim. In an Islamic context, it can refer to almost any effort to make personal and social life conform with G ...
in August 1996 could be considered a declaration of war. Under this view, the enactment by Congress of the AUMF did not mark the beginning of the conflict with
al Qaeda Al-Qaeda (; , ) is an Islamic extremism, Islamic extremist organization composed of Salafist jihadists. Its members are mostly composed of Arab, Arabs, but also include other peoples. Al-Qaeda has mounted attacks on civilian and military ta ...
, but rather authorized the Executive to use force to combat it. Additionally, Thomas wrote that under the common law of war, which is "flexible and evolutionary in nature", war courts are permitted a degree of latitude in their jurisdiction. In holding otherwise, the plurality failed to properly defer to the judgment of the Executive and military commanders. Referring to the Court's recent decision in '' Rapanos v. United States'', Thomas noted with some incredulity that while the Justices in the instant decision "disregard dthe commander-in-chief's wartime decisions", they had no trouble deferring to the judgment of the Corps of Engineers in upholding the agency's "wildly implausible conclusion that a storm drain is a tributary of the waters of the United States". He added that "It goes without saying that there is much more at stake here than storm drains." Thomas likewise disagreed with the plurality's holding that even if the government had charged Hamdan with a crime that was clearly cognizable by military commission, the commission would still lack power to proceed because it does not comply with the terms of the UCMJ and the four Geneva Conventions signed in 1949. He again emphasized that the jurisdiction of military commissions is not prescribed by statute but is rather "adapted in each instance to the need that called it forth". Thomas argued that the Court's conclusion that Article 36 of the UCMJ amounts to an attempt by Congress to curb the Executive's power is "contrary to the text and structure of the UCMJ" and also inconsistent with prior decisions of the Court. Addressing Hamdan's claims under the Geneva Convention, Thomas argued that these are foreclosed by the Court's holding in '' Johnson v. Eisentrager'', where the majority noted that the respondents could not assert "that anything in the Geneva Convention makes them immune from prosecution or punishment for war crimes". Further, even if Hamdan's claim under Common Article 3 was not foreclosed by ''Eisentrager'', it is nevertheless meritless insofar as the President has accepted the determination of the
Department of Justice A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
that Common Article 3 of Geneva does not extend to al Qaeda detainees. Thomas asserted that the Court's duty in this instance to "defer to the President's understanding of the provision at issue" is made even more acute by the fact that he is acting pursuant to his authority as Commander-in-Chief.


Alito's dissent

I
a seven page dissent
Alito sided with Thomas and Scalia's explanation of why they believe the courts had no jurisdiction for this case. He explained why he believed the military commission in this case was legal. Alito disagreed with the holding of the Court which found that military commissions did not meet the definition of "a regularly constituted court" as required in Common Article 3 of the Geneva Conventions. Alito argued that Common Article 3 was satisfied in ''Hamdan'' because the military commissions: # qualify as courts, # were appointed and established in accordance with domestic law, and # any procedural improprieties that might occur in particular cases can be reviewed in those cases. Alito specifically disagreed with the opinions supporting the judgment which held that the military commission before which Hamdan would be tried is not "a regularly constituted court", and that the military commission is "illegal", because the commission's procedures allegedly would not comply with . Alito wrote that the military commission was "regularly" or "properly" constituted, using the example of the various types of local, state, federal and international courts and how "although these courts are 'differently constituted' and differ substantially in many other respects, they are all 'regularly constituted.'" Alito stated that Geneva Convention Common Article 3 does not specifically rule out military commissions, and further points to the commentary in Article 66, which was the article the Court used in support of its opinion. Alito argued that even if Common Article 3 recognizes a prohibition on "special tribunals", which Article 66 does prohibit, such a prohibition is not applicable to Hamdan's tribunal because the military commissions were "regular". Further, because the Bush Administration might conduct the hundreds of such tribunals according to the same procedures, Alito concluded that "it seems that petitioner's tribunal, like the hundreds of others respondents propose to conduct, is very much regular and not at all special." Alito wrote that "the commissions were appointed, set up, and established pursuant to an order of the President, just like the commission in '' Ex parte Quirin'', 317 U. S. 1 (1942), and the Court acknowledges that ''Quirin'' recognized that the statutory predecessor of 'preserved' the President's power 'to convene military commissions.'" Alito disagreed with Kennedy's assertion that "an acceptable degree of independence from the Executive is necessary to render a commission 'regularly constituted' by the standards of our Nation's system of justice", arguing that Kennedy "offers no support for this proposition (which in any event seems to be more about fairness or integrity than regularity)", and further arguing that the commission in ''Quirin'' was no different from the present case. Finally, Alito wrote that the commission procedures as a whole do not provide a basis for deeming the commissions to be illegitimate. He points to two procedural rules, which the Court found fault with: First, the rule "allowing the Secretary of Defense to change the governing rules 'from time to time; and second, the rule that "permits the admission of any evidence that would have 'probative value to a reasonable person. Alito asserts these rules cannot make the commissions illegitimate. On the first rule Alito argued that not all changes during the course of a trial
prejudice Prejudice can be an affective feeling towards a person based on their perceived group membership. The word is often used to refer to a preconceived (usually unfavourable) evaluation or classification of another person based on that person's per ...
the defendant, and that some may even help the defendant. In addition, "If a change is made and applied during the course of an ongoing proceeding and if the accused is found guilty, the validity of that procedure can be considered in the review proceeding for that case." On the second rule, Alito argued that this rule does not violate the international standard incorporated into Common Article 3, because "
rules of evidence The law of evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of f ...
differ from country to country" and "much of the world does not follow aspects of our evidence rules, such as the general prohibition against the admission of hearsay".


Reaction to the decision

The impact of the decision on the petitioner, Hamdan, was that he can still be tried; however, his trial must be in a court, such as a military court-martial, or possibly a commission that has court-like protections. Shortly thereafter, the
Military Commissions Act of 2006 The Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. The Act's stated purpose was "to authorize trial by military commission for violations of the law of ...
may have raised again the issue of which court would hear cases such as Hamdan's. The U.S. Department of Justice has filed notice with several federal judges, and given notice to hundreds of detainees, that the habeas petitions of alien unlawful enemy combatants (or those whose status is to be determined) are not within the jurisdiction of those courts. The passage and signing of the Act follows through on President Bush's expressed intention to get explicit Congressional authorization to use military tribunals. Press Secretary
Tony Snow Robert Anthony Snow (June 1, 1955 – July 12, 2008) was an American journalist, political commentator, anchor, columnist, musician, and the 25th White House Press Secretary under President George W. Bush, from May 2006 until his resignatio ...
echoed the plan to appeal to Congress. However, even among Senate Republicans, there were conflicting views. Senators
Arlen Specter Arlen Specter (February 12, 1930 – October 14, 2012) was an American lawyer, author and politician who served as a United States Senator from Pennsylvania from 1981 to 2011. Specter was a Democrat from 1951 to 1965, then a Republican fr ...
and
Lindsey Graham Lindsey Olin Graham (born July 9, 1955) is an American lawyer and politician serving as the senior United States senator from South Carolina, a seat he has held since 2003. A member of the Republican Party, Graham chaired the Senate Committee on ...
(the latter a former military prosecutor) indicated Congress would work quickly to authorize tribunals, while influential Senator
John Warner John William Warner III (February 18, 1927 – May 25, 2021) was an American lawyer and politician who served as the United States Secretary of the Navy from 1972 to 1974 and as a five-term Republican U.S. Senator from Virginia from 1979 to 20 ...
suggested a cautious and deliberative response. The potential for Congressional action also provided an avenue for politicking, as Republicans threatened Democratic members of Congress with being labeled weak on terrorism if they did not authorize tribunals. On July 7, 2006, the
Secretary of Defense A defence minister or minister of defence is a cabinet official position in charge of a ministry of defense, which regulates the armed forces in sovereign states. The role of a defence minister varies considerably from country to country; in so ...
issued a memo "Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense". This may be the basis of a July 11, 2006, statement by the Bush administration that all detainees at Guantanamo Bay and in U.S. military custody everywhere are entitled to humane treatment under the Geneva Conventions. This declaration appears not to cover
CIA The Central Intelligence Agency (CIA ), known informally as the Agency and historically as the Company, is a civilian foreign intelligence service of the federal government of the United States, officially tasked with gathering, processing, ...
detainees and is ambiguous with respect to the interpretation of Common Article 3 and the definition of "humane treatment". There were some indications that the other detainees being held at facilities throughout the world (e.g.,
Bagram Air Base Bagram Airfield-BAF, also known as Bagram Air Base , is located southeast of Charikar in the Parwan Province of Afghanistan. It is under the Afghan Ministry of Defense. Sitting on the site of the ancient Bagram at an elevation of above sea le ...
and
black sites In military terminology, a black site is a location at which an unacknowledged black operation or black project is conducted. According to the Associated Press, "Black sites are clandestine jails where prisoners generally are not charged with a ...
), might use the Supreme Court's ruling to challenge their treatment. Their reasoning may be that since the Geneva Conventions afforded protection to Hamdan, its other protections might be effective for them as well. Commentators expressed mixed opinions about the strength of this argument.


Implications for theories of executive power

The decision may have important implications for other disputes relating to the extent of executive power and the
unitary executive theory The unitary executive theory is a theory of United States constitutional law which holds that the President of the United States possesses the power to control the entire federal executive branch. The doctrine is rooted in Article Two of the U ...
. In particular, it may undermine the Bush administration's legal arguments for domestic wiretapping by the
National Security Agency The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
without warrants as required by the
Foreign Intelligence Surveillance Act The Foreign Intelligence Surveillance Act of 1978 ("FISA" , ) is a United States federal law that establishes procedures for the physical and electronic surveillance and the collection of "foreign intelligence information" between "foreign pow ...
.Supreme Court's Ruling in Hamdan Means Warrantless Eavesdropping is Clearly Illegal
,
Glenn Greenwald Glenn Edward Greenwald (born March 6, 1967) is an American journalist, author and lawyer. In 2014, he cofounded ''The Intercept'', of which he was an editor until he resigned in October 2020. Greenwald subsequently started publishing on Substac ...
, July 9, 2006.


Charges dismissed/new charges

On June 5, 2007, Hamdan and
Canadian Canadians (french: Canadiens) are people identified with the country of Canada. This connection may be residential, legal, historical or cultural. For most Canadians, many (or all) of these connections exist and are collectively the source of ...
youth
Omar Khadr Omar Ahmed Said Khadr ( ar, عمر أحمد سعيد خضر; born September 19, 1986) is a Canadian citizen who at the age of 15 was detained by the United States at Guantanamo Bay for ten years, during which he pleaded guilty to the murder of U ...
, had all charges against them dismissed. The judges presiding over their military commissions ruled that the Military Commissions Act did not give them the jurisdiction to try Hamdan and Khadr, because it only authorized the trial of "
unlawful enemy combatants An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is a person who directly engages in armed conflict in violation of the laws of war and therefore is claimed not to be protected by the Geneva Conventions. The Intern ...
". Hamdan and Khadr's Combatant Status Review Tribunals, like those of all the other Guantanamo captives, had confirmed them as "enemy combatants". In December 2007, a tribunal determined that Hamdan was an "unlawful enemy combatant". In August 2008, he was convicted by the military commission of the lesser of two charges and received a sentence of 66 months, reduced by time served to five and a half months. In November 2008, the US transferred him to Yemen, where he served his last month. After release, he joined his family in Sana. In October 2012, the US Appeals Court for the District of Columbia, overturned Hamdan's conviction, acquitting him of the charge.''The Eyes of the World: Charges, Challenges, and Guantánamo Military Commissions After Hamdan II'', by: Frohock, Christina M., National Security & Armed Conflict Law Review, 2015, Vol. 6, p1-24.


See also

*
List of United States Supreme Court cases, volume 548 This is a list of all the United States Supreme Court cases from volume 548 of the ''United States Reports The ''United States Reports'' () are the official record ( law reports) of the Supreme Court of the United States. They include rulings, ...
*
List of United States Supreme Court cases This page serves as an index of lists of United States Supreme Court cases. The United States Supreme Court is the highest federal court of the United States. By Chief Justice Court historians and other legal scholars consider each Chief J ...
* ''
Rasul v. Bush ''Rasul v. Bush'', 542 U.S. 466 (2004), was a landmark decision of the United States Supreme Court in which the Court held that foreign nationals held in the Guantanamo Bay detention camp could petition federal courts for writs of ''habeas corpu ...
'' * '' Boumediene v. Bush''


References


Further reading

*
National Security Law for Policymakers and Law Students
* Human Rights First: * . * .

of
Scott Silliman Scott Livingston Silliman (born 1943) is a Professor of the Practice of Law at Duke Law School, and Executive Director of Duke Law School's Center on Law, Ethics and National Security. He is also an adjunct professor of law at the University of No ...
on ''Hamdan v. Rumsfeld'': Establishing a Constitutional Process", U.S. Senate Committee on the Judiciary, July 11, 2006.


External links


Court documents

* *   *  
Groups File Amicus Briefs in Case Involving Osama Bin Laden's Driver
Physicians for Human Rights Physicians for Human Rights (PHR) is a US-based not-for-profit human rights NGO that uses medicine and science to document and advocate against mass atrocities and severe human rights violations around the world. PHR headquarters are in New ...

Petition for a writ of certiorari: Brief for the respondents in opposition
US Department of Justice The United States Department of Justice (DOJ), also known as the Justice Department, is a federal executive department of the United States government tasked with the enforcement of federal law and administration of justice in the United Stat ...
, December 2004. *  ,
U.S. Court of Appeals for the District of Columbia Circuit The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate cou ...
, July 15, 2005.
BRIEF OF LEGAL SCHOLARS AND HISTORIANS AS AMICI CURIAE IN SUPPORT OF PETITIONER, SALIM AHMED HAMDAN, v DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al., No. 05-184


Pentagon documents


Department of Defense Military Commission Order No. 1, March 21, 2002


News reports, commentary



''
Washington Post ''The Washington Post'' (also known as the ''Post'' and, informally, ''WaPo'') is an American daily newspaper published in Washington, D.C. It is the most widely circulated newspaper within the Washington metropolitan area and has a large na ...
'', June 29, 2006.
''Hamdan v. Rumsfeld'': The Supreme Court Affirms International Law
JURIST A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal qualification in law and often a legal practitioner. In the U ...
, June 30, 2006.
Hamdan, Common Article 3 and the True Spirit of the Law of War
JURIST A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal qualification in law and often a legal practitioner. In the U ...
, July 3, 2006.
U.S. Charges Yemeni Described as Bin Laden Bodyguard
''
Washington Post ''The Washington Post'' (also known as the ''Post'' and, informally, ''WaPo'') is an American daily newspaper published in Washington, D.C. It is the most widely circulated newspaper within the Washington metropolitan area and has a large na ...
'', July 14, 2004.
Fourth Guantanamo Detainee Is Charged
''
Washington Post ''The Washington Post'' (also known as the ''Post'' and, informally, ''WaPo'') is an American daily newspaper published in Washington, D.C. It is the most widely circulated newspaper within the Washington metropolitan area and has a large na ...
'', July 14, 2004.
Bin Laden driver charged in first Guantanamo hearing
''
USA Today ''USA Today'' (stylized in all uppercase) is an American daily middle-market newspaper and news broadcasting company. Founded by Al Neuharth on September 15, 1982, the newspaper operates from Gannett's corporate headquarters in Tysons, Virgini ...
'', August 25, 2004.
Court permits terrorists to be tried by military commissions
Washington Legal Foundation The Washington Legal Foundation (WLF) is a non-profit legal organization located at 2007-2009 Massachusetts Avenue NW, on Embassy Row in Washington, D.C. Founded in 1977, the Foundation's stated goal is "to defend and promote the principles of f ...
, July 15, 2005.
Protecting America's Freedom: National Security and Defense
Washington Legal Foundation, July 15, 2005.

''
FindLaw FindLaw is a business of Thomson Reuters Thomson Reuters Corporation ( ) is a Canadian multinational media conglomerate. The company was founded in Toronto, Ontario, Canada, where it is headquartered at the Bay Adelaide Centre. Thom ...
'', July 20, 2005.
Understanding ''Hamdan v. Rumsfeld''

Why Hamdan is Right about Conspiracy Liability
JURIST A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal qualification in law and often a legal practitioner. In the U ...

Why the Court Said No
David D. Cole David D. Cole is the National Legal Director of the American Civil Liberties Union (ACLU). Before joining the ACLU in July 2016, Cole was the Hon. George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center fro ...
, ''
New York Review of Books New is an adjective referring to something recently made, discovered, or created. New or NEW may refer to: Music * New, singer of K-pop group The Boyz Albums and EPs * ''New'' (album), by Paul McCartney, 2013 * ''New'' (EP), by Regurgitator ...
'', August 10, 2006. * {{DEFAULTSORT:Hamdan v. Rumsfeld 2006 in United States case law Donald Rumsfeld litigation Extrajudicial prisoners of the United States George W. Bush administration controversies Guantanamo Bay captives legal and administrative procedures Human rights case law United States military case law United States Supreme Court cases United States Supreme Court cases of the Roberts Court