Hamdan v. Rumsfeld

As I write this post, the Supreme Court of the United States is hearing oral argument in Hamdan v. Rumsfeld, an important case involving the president’s constitutional and statutory authority in times of war, and the legality of military commissions set up to try detainees captured in the war on terror. The facts of the case:

Petitioner Salid Ahmed Hamdan is a detainee being held at Guantanamo Bay, Cuba. He was captured in Afghanistan in November 2001 and admits to being a personal bodyguard and driver to Osama bin Laden. He was charged with conspiring to commit acts of terrorism, and was to be tried before a military commission, which is a special adjudicatory body created by Presidential order to try individuals accused of war crimes. [Link]

The procedural history, or how the present case made its way to the Supreme Court:

Before trial, Hamdan challenged the lawfulness of the military commission that was to try him, and in November 2004, the D.C. District Court enjoined the military commission proceedings as illegal under the Geneva Convention and the Uniform Code of Military Justice (UCMJ). The Court of Appeals for the D.C. Circuit reversed, holding that military commissions had been duly authorized by Congress; that relief was unavailable under the Geneva Convention because it did not create privately enforceable rights and because it did not apply to Al Qaeda; and that the UCMJ did not preclude HamdanÂ’s trial before military commissions. [Link]

Hamdan appealed to the Supreme Court and in November 2005, the Supreme Court agreed to review the case. Chief Justice John Roberts recused himself, as he served on the D.C. Circuit Court panel that upheld the war crimes tribunals. (Some are calling for Justice Antonin Scalia to step aside as well because of comments he recently made in Switzerland, see here.)

Respected desi law professor Neal Katyal is arguing the case on behalf of Hamdan. There are two questions (.pdf) before the Supreme Court. The first is a threshold inquiry regarding the Court’s jurisdiction to hear the case. The government contends that the Court should dismiss the case on jurisdictional grounds:

[The government] argue[s] that the Detainee Treatment Act of 2005 (DTA), enacted by Congress after the Supreme Court granted certiorari in this case, preclude pre-trial review by establishing an exclusive post-trial review process for all Guantanamo detainees. In addition, the Government has argued, even absent the DTA, the Court should withhold ruling on the merits until a final decision has been reached in accordance with traditional abstention doctrine. Petitioner, on the other hand, argues that Congress specifically modified the effective date provisions of the DTA to ensure that the Supreme Court could decide this case.[Link]

Second, as to the merits:

petitioner argues [in part] that the military commission that seeks to try him is not authorized to do so under U.S. law. [H]e argues that such authorization must be explicitly provided by Congress. Respondents dispute whether such explicit authorization is required, pointing to the historical practice of the President convening military commissions as evidence of his inherent “Commander-in-Chief” power to do so. [Link]

The Supreme Court issued a statement noting that it will expedite the release of the audio transcript of today’s hearings. If any SM readers have any thoughts on the case, before or after listening to argument, please post them in the comments section. (Some legal commentators are already speculating that the case may come out tied, 4-4 (with Chief Justice Roberts not participating, as noted above). As expected, others disagree, arguing that the government will prevail.) I hope to share my reaction to the argument with you as soon as I listen to the audio of the proceedings.

For court documents and further information on the background of and arguments in this case, please visit this site, which is apparently operated by counsel for Hamdan.

Related topics: The “Devils” Advocates; The art of the book review.

12 thoughts on “Hamdan v. Rumsfeld

  1. Here’s something of interest regarding this case as well.


    Today the Supreme Court will hear oral arguments in the case of Hamdan v. Rumsfeld. The Court will be called upon to determine–among other things–whether a provision in last year’s Detainee Treatment Act (“DTA”) effectively strips the Court of jurisdiction to hear Hamdan’s case. The Government contends that it does and in support of this position, Republican Senators Lindsey Graham and John Kyl have filed an amicus brief with the Court. This amicus brief argues that the legislative history of the DTA supports the Government’s position. Specifically, the brief cites a lengthy colloquy between Senators Kyl and Graham themselves which purportly took place during a Senate floor debate just prior to passage of the bill.
    Sounds harmless, huh? Here’s the catch:
    Apparently this entire 8 page colloquy–which is scripted to read as if it were delivered live on the floor of the Senate, complete with random interruptions from other Senators–never took place.
  2. Rage, Justice Scalia did participate in today’s hearings and, according to one analysis of the arguments, Justice Scalia “provid[ed] the only clearcut signs of unstinting support for the federal government’s arguments.” This suggests that Professor Katyal performed extremely well today:

    The overall tone of the hearings seemed significantly in favor of the challenge to the new tribunals. [I]t appeared that Justice Anthony M. Kenney might well emerge as holding the decisive vote. At one point, he suggested openly to the detainees’ lawyer, Georgetown law professor Neal Katyal, that the Court might well “think there is merit” in his argument that the tribunals were not “properly constituted.” [Link]
  3. Members of al-queda are 1)not signatory to the geneva conventions 2)not a free standing army in a sense and 3) not an army that limits its attacks to military installations. Under what circumstances are they to be given these rights?

  4. I’m not an attorney, but it strikes me as common sense that the Hamdan case should either be tried as a civilian criminal case, or adherent to the Unified Military Code of Justice. If al-Qaeda is not a signatory of the Geneva War Convention, and not a free standing army, then captured members should be indicted and given their day in court, and not be suspended of habeas corpus. It’s mindboggling to see the Bush administration designate captured members with the emergent title of enemy combatant, and then suspend all due process, both civilian and military jurisprudence. If it is a war, and enemy members are captured, as a signatory the United States is compelled to observe the Geneva War Convention. If it is not a war, then the captured members should be tried in a civilian court. They can’t conveniently cherry-pick portions of the law that facilitates their agenda.

  5. Members of al-queda are 1)not signatory to the geneva conventions 2)not a free standing army in a sense and 3) not an army that limits its attacks to military installations. Under what circumstances are they to be given these rights?

    Damn right! Why should we be civilized when others aren’t!!?!! Just because we believe in laws, rights, and such shouldn’t mean that others deserve it; We got the torture down and killing more than 30,000 civilians; it’s time their human rights were completely taken away…

  6. The only people who have guaranteed access to civilian courts by the constitution are those here in the US. That’s why Jose Padilla should have been transferred immeadietly to civilian criminal court. Al-Queda is conducting warfare and is not a signatory to Genevea protections. What law, and we are looking for one, says they should be given such protection? And sluggo, your self-righeousness doesn’t translate into intelligence. When Al-Queda decides to cease attacking civilians and wage war on military targets alone they may have a case to have Geneva protection. However, there is no rule that says a terrorist must be tried in either a civilian court or be given Geneva protections. Let me put it to in another way: if American soldiers are captured by Zarquaqi, what is most likely outcome? And if you have the gall to say their eventual beheading is a REACTION to our policies, you are as deluded as you are dumb.

  7. howdy vikram,

    From this comment and other comments you’ve posted, your attitude towards the law seems to be that the state should be able to mess with whomever it wants as long as there isn’t a law preventing it.


    What law, and we are looking for one, says they should be given such protection?

    What law which has stood up in court (and I am looking for one) says that they shouldn’t be given such protection, and instead should be locked up indefinitely without being charged? The intent behind the Constitution was to provide for a broad set of rights upon which the state could not easily infringe – not the other way around. Your attitude towards the law puts us squarely on the path to becoming a police state.

  8. Right, a police state that lets you challenge its views of the law before multiple courts. Sounds like Nazi Germany to me. And no one seems to get this point: They are actors in an organization conducting warfare againt the US. I never said the state should be able to mess with whomever it wants. If you read clearly, I said the state has no authority when it comes to people defined by the constitution or the geneva conventions. Al-Queada does not fit either description. Therefore the government can establish new rules for them, and in this case they are severe as they should be.

  9. Most of the combatants captured in Afghanistan were Taliban, not Al-queda. Prior to the invasion of Afghanistan the Taliban was the official government and army of the sovereign state of Afghanistan, which would make those combatants subject to Geneva Convention protections.