Hamdan v. Rumsfeld

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Hamdan v. Rumsfeld
Supreme Court logo
Decided
June 29, 2006
Rubrum : Salim Ahmed Hamdan versus Donald H. Rumsfeld , Secretary of Defense et al.
Reference: Docket #: 05-184
Facts: Appellation to the Supreme Court after detention for detention in the Guantanamo Bay camp
before: Release granted by District Court for DC : 344 F. Supp. 2d 152 (2004); repealed by the appellate court for DC: 415 F. 3d 33 (2005) ; accepted for decision 126 S. Ct. 622 (2006)
following: Enactment of a law on military commissions in 2006 and indictment before a newly constituted military commission: USA against Hamdan , which, however, dismissed the case in June 2007 for lack of jurisdiction
statement
With the anti-terrorism laws, Congress has given the President neither blanket authorization nor the authority to set up military commissions in place of ordinary courts. A prisoner in Guantanamo Bay cannot be tried or tried by a military commission. This violates the constitution and the law of war, namely the applicable law on the unified military jurisdiction (UCMJ) or the applicable Geneva Conventions .
Judge
Presiding judge: John Roberts , who declared himself biased and did not participate in the decision
Associate Judges: John Paul Stevens , Antonin Scalia , Anthony Kennedy , David Souter , Clarence Thomas , Ruth Bader Ginsburg , Stephen Breyer , Samuel Alito
Positions
per curiam : Stevens
approving: Kennedy, Souter, Ginsburg, z. Sometimes different: Breyer (I - IV, VI - VI-D-iii, VI-Dv, VII); approving him and z. Partly different: Souter, Ginsburg, Breyer (V, VI-D-iv)
completely different: Scalia, Thomas, Alito
Applied Law
United States Constitution; Art. 2 and 3 of the Geneva Conventions; Art. 21 and 36 UCMJ; §1005 Law on Detained Persons 2005 (DTA); Congress resolution on the use of military force (AUMF)

The decision of the Supreme Court of the United States in the case v Hamdan. Rumsfeld is the third precedent judgment on US government action in the so-called " war on terror " against people detained as illegal combatants . It prohibits the US government's practice of massively restricting the procedural and material rights of prisoners, and states that there is no legal basis for special courts in the form of “military commissions”.

background

Salim Ahmed Hamdan , born in 1970, is a Yemeni citizen and was apprehended by US troops during the invasion of Afghanistan and then imprisoned in the prison camp of the US naval base in Guantanamo in Cuba. He is said to have admitted that he was the personal chauffeur and bodyguard of Osama bin Laden , but claims that he has nothing to do with the terrorist attacks on September 11, 2001 in the USA or the al-Qaeda network . Since July 2004, US agencies have accused him of participating in terrorism and conspiracy . In another ruling, the Supreme Court has requested that the combatant status of those detained in Guantanamo be examined by tribunals . Hamdan was then again classified as an unlawful combatant by such a tribunal.

He should be put before a so-called military commission with the character of a committee. This should consist of members of the US armed forces and based on the Military Commission Order No. 1 . Your decision should, if necessary, be reviewed by the President and be outside of ordinary jurisdiction.

Hamdan petitioned the Washington, DC District Court for the seat of the federal government, alleging that he would be detained without due process , without charge, and ultimately dismissed from his legal judge . The court granted his detention request. However, the government appealed to the appellate court against the granting decision. That court then set aside the contested decision. His assessor was Judge Roberts, who has been appointed to the Supreme Court since September 2005 and therefore declared himself biased in the last trial. With his further appeal to the Supreme Court, Hamdan is pursuing his petition for a detention review.

The decision

The Supreme Court declared military commissions to try cases of prisoners at the Guantanamo naval base inadmissible as a substitute for regular courts. The decision is based on formal and material statements:

Formal statements

  • As a result, it can remain open whether the president has the constitutional authority to set up military commissions. Even if he had them, they would have to comply with martial law , as the Congress has legally stipulated in Art. 15 UCMJ , or he would have to be separately empowered by law.
  • There is also no such authorization in the Authorization for Use of Military Force Against Terrorists . Although this resolution is very general and very broad and gives a flexible authorization, it cannot be interpreted to mean that existing laws of the Congress are restricted or inapplicable for this reason or that the President or the government are no longer binding. Nor can it be interpreted to the effect that existing competences of state organs have been suspended or that presidential actions - be it express or implied  - may be rejected.
  • Neither is there such authorization under the 2005 Law on the Treatment of Detained Persons (DTA) .

The aforementioned provisions of martial law are final. Nothing has extended the President's powers beyond this legal framework. At most, the special circumstances of a war could justify special measures and military commissions, but even then these would have to move within the previously established legal framework.

Material statements

In material terms, martial law essentially includes the UCMJ and the Geneva Conventions . Either of these two codifications grants more protection for prisoners than the established military commissions, which do not adhere to fundamental minimum standards:

  • The defendant's right to sift through evidence is largely restricted. This also applies to the sighting by his defender. This means that under certain circumstances only evidence can be gathered that has only very little evidential value. This also limits the defense's ability to present better evidence for its part, as it is unaware of the need for evidence in certain circumstances. The same applies to the determination of further evidence in order to ensure precise and objective research into the truth (→ request for evidence, research evidence ).
  • The principle of immediacy , according to which evidence must be presented directly to the court and in its original form, has been replaced by the option of an affidavit , a guaranteeing certificate from the law enforcement authorities or the Ministry of Defense. This simply makes it impossible to verify the existence of evidence. Furthermore, the court and defense cannot judge the quality of the evidence, which leads to problems with sentencing . As a result, the military commission process replaces judicial conviction with judicial trust.
  • Appeals and complaints are not heard by the regular courts, but by the Ministry of Defense or, if applicable, the President.

Such deviations are inadmissible: even if special circumstances of a war require the extraordinary establishment of military commissions, these must correspond as closely as possible to the ordinary courts-martial (Art. 36 b UCMJ).

In addition, the proceedings before the established military commissions violate the principles of the Geneva Conventions. The decision of the Court of Appeal in the second instance found that the Geneva Conventions were not applicable at all, and based this view on three main arguments; however, it is erroneous:

  • It relied on the Johnson v. Eisentrager case , the principles of which are not applicable to the present case: in this case, no military commissions were set up whose procedures differed from those of courts-martial.
  • The application of the conventions cannot be denied either, because in the common Article 3 of the Geneva Conventions minimum standards for the protection of prisoners “in the territory” of a signatory state are to be granted.
  • According to these minimum standards, prisoners must be brought before "properly established courts", which the military commissions per se are not.

Dissenting opinion of Judge Kennedy

Judge Kennedy supports the decision in the result, but deviates on one point from the opinion of the court. He sees a fourth material reason in the fact that military commissions are fundamentally unsuitable for negotiating conspiracy charges. The constant case law of the court recognizes that commissions can only replace courts if this is standardized by strict statutory law or if the principles of a solidified precedent are to be specifically implemented. Principles of such quality can be seen in the Quirin case . However, that is not what this is about.

Dissenting opinion of the judges Breyer, Kennedy, Souter and Ginsburg

The judges share the decision with the result, but deviate from the court's opinion on one point that cannot be reached by a majority. Despite the irregularities in the DTA legislative process and divergent draft legislation, the court cannot establish a blanket authorization in favor of the President. Should he consider the establishment of military commissions indispensable, he is in no way denied the possibility of introducing a proposal to Congress and requesting authorization. They also anticipate the criticism of their colleagues who do not support the decision:

“Congress has not issued the Executive a“ blank check ”… Nothing prevents the President from returning to Congress to seek the authority he believes necessary ... Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our nation's ability to deal with danger. To the contrary, that insistence strengthens the nation's ability to determine — through democratic means — how best to do so. The constitution places its faith in those democratic means. Our Court today simply does the same. "

- Stephen Breyer

“ Congress has not given the executive a blank check. Nothing prevents the President from going back to Congress for the authorization he deems necessary ... If, as in this case, there is no emergency that makes it impossible to consult Congress, the judicial one weakens Insisting on such questioning does not affect our nation's ability to deal with danger. On the contrary, this tenacity strengthens our nation's ability to determine how best to do this - through democratic means. The constitution trusts in these democratic means. Like our dish. "

Dissenting opinion of Judges Scalia, Thomas and Alito

The other judges, who do not support the decision, justify this primarily with aspects of the territorial scope of jurisdiction of the Supreme Court. In particular, they base this on the Act on the Treatment of Detained Persons (DTA) , which came into force on December 30, 2005:

"[N] o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba."

- § 1005 (e) (1) DTA, 119 Stat. 2742

“ No court, chief judge, or other judge has jurisdiction to hear or review a review petition made by or on behalf of a foreigner interned by the Ministry of Defense in Guantanamo, Cuba. "

They criticize the fact that the majority in the court nevertheless come to the obviously erroneous conclusion that it is the “very natural” reading of such a law that pending proceedings like this continue to be pursued and decided. The wording that uses the word “justice”, a term specifically for the members of the Supreme Court, weighs particularly heavily. Also, according to the constant jurisprudence of the court, an exception can only be made for old cases and this can only be completed if the law expressly standardizes such a jurisdiction regulation.

In addition, the majority used documents and materials from the legislative process to interpret the law, specifically cited Senate materials.

In a further step, the majority opinion misjudges that applicants like Hamdan have no right to judicial protection through a detention review if they are outside the USA, since in this case they would no longer be under American sovereignty.

Finally, an analogy should be drawn with the decision in the Schlesinger v Councilman case , according to which the court should not rule on decisions of military tribunals before their work is finished, which is obviously the case in this case.

Other dissenting opinions

Judges Thomas and Alito have also attached dissenting opinions to the decision to emphasize that they do not agree with the majority view on other points.

Reactions to the decision

Main article: Military Commissions Act

In mid-July 2006, the US government circulated a bill entitled the Military Commissions Act of 2006 to implement the requirements of the decision, among other things. The establishment of military commissions should therefore be retained, ordinary civil or military courts should not have jurisdiction. Appeals can only be directed against the final decision; the Federal Court of Appeal for the District of Columbia and, in the 2nd instance, the Supreme Court should have exclusive jurisdiction for them.

However, experts in and outside the civil service criticize key points of the draft:

  • the Geneva Conventions are to be excluded as an applicable source of law
  • the term “unlawful combatant” is legally defined, but broader than the accepted definition in the Quirin Decision
  • the law should also be applicable to US citizens, although the constitution guarantees them constitutional procedural rights as fundamental rights in contrast to non-citizens
  • the UCMJ rules of procedure do not apply accordingly
  • Evidence obtained under torture within the meaning of 18 USC 2340, should not be recycled, but the military commissioners can allow or reject evidence which were obtained under the influence of coercion, for it is no fundamental to admissible evidence apply
  • Prohibition and precautions against self-incriminating the accused should be fundamentally excluded (→ right to refuse to testify , prohibition of evidence , fruit of the poisonous tree )
  • Hearsay evidence should be admissible, the law does not contain evaluations with regard to the probative value - a violation of the principle of immediacy (see above) and problems with sentencing are seen here
  • Exclusion of the defense from sifting through evidence that is based on knowledge that is kept secret or that is officially kept secret for other reasons; at most, a summary of the findings can be made available if the law enforcement authorities can create one without secret details
  • the proceedings should be feasible in the absence of the defendant when a defense attorney is present, so that the defendant would not have the right to ask questions and submit evidence

On August 2, the Senate Legal Committee heard Justice Minister Alberto R. Gonzales on this matter. The civil rights organization ACLU called for political protest against the draft; however, could not prevent Congress from approving the law and it came into effect on October 17, 2006.

Individual evidence

  1. ^ Next to Rasul versus Bush , docket no. 03–334, references: 542 US 466 ; 124 S. Ct. 2686; 159 L. Ed. 2d 548; 2004 US LEXIS 4760; 72 USLW 4596; 2004 Fla. L. Weekly Fed. P. 457 and Hamdi versus Rumsfeld docket no. 03-6696, references: 542 US 507 ; 124 S. Ct. 2633; 159 L. Ed. 2d 578; 2004 US LEXIS 4761; 72 USLW 4607; 2004 Fla. L. Weekly Fed. P. 486
  2. ↑ Cover sheet of the indictment (PDF; 113 kB)
  3. ↑ Combatant Status Review Tribunals, which operated from July 8, 2004 to March 29, 2005
  4. ^ Military Commission Order No. 1 (PDF; 103 kB)
  5. ^ Petition for a writ of habeas corpus
  6. ↑ United States District Court for the District of Columbia
  7. ^ United States Court of Appeals for the District of Columbia Circuit
  8. ↑ Law on the Uniform Code of Military Justice (UCMJ)
  9. ↑ Authorization for Use of Military Force (AUMF)
  10. ↑ a b Detainee Treatment Act of 2005 (DTA)
  11. ↑ Louis A. Johnson, Secretary of Defense, et al. versus Eisentrager, alias Ehrhardt, et al. 339 U.S. 763 (1950) ; thereafter, prisoners in German prisons under American sovereignty had no access to regular American courts in the USA
  12. ↑ Regularly can in the English text of the contract, both in terms of properly as of usual be understood
  13. ↑ plurality opinion
  14. ↑ "inherently unable"
  15. ↑ see Richard Quirin and Operation Pastorius
  16. ↑ ex parte Quirin , 317 US 1 (1942) , afterwards the conviction of German saboteurs was upheld by the military courts and a distinction was drawn between prisoners of war and illegal combatants: prisoners of war are opposing combatants who are apprehended and held in captivity until the conflict has been resolved, but who oppose it Unlawful combatants Persons who additionally violate the rules of war and are specifically prosecuted and punished for this violation
  17. ↑ concurring opinion
  18. ↑ Arthur Schlesinger, Jr., Secretary of Defense, et al. v. Bruce R. Councilman 420 US 738 (1975)
  19. ↑ ACLU Action Center  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: dead link / secure.aclu.org  

See also

literature

  • Jason Callen: Unlawful Combatants and the Geneva Conventions , in: Virginia Journal of International Law 44 (2003/2004) pp. 1025-1072.
  • Margaret Kohn: Due Process and Empire's Law: Hamdan v. Rumsfeld , in: Dissent Magazine, Winter 2007.
  • Steven Solomon, David Kaye: The International Law of Hamdan v. Rumsfeld , in: Yearbook of International Humanitarian Law 8 (2005) pp. 179-207.
  • Judith Wieczorek: Unlawful combatants and international humanitarian law . Berlin 2005. ISBN 3-428-11770-0 .
  • Helen Keller, Magdalena Forowicz: “A new era for the Supreme Court after Hamdan v. Rumsfeld? ”, In: Journal for Foreign Public Law and Völkerrecht 67 (2007), pp. 1–42.
  • Frakt, David JR APPLYING INTERNATIONAL FAIR TRIAL STANDARDS TO THE MILITARY COMMISSIONS OF GUANTANAMO . Southern Illinois University Law Journal, 2013, Vol. 37 Issue 3, p551-597.
  • KELLER, Helen; FOROWICZ, Magdalena. A new era for the [US] Supreme Court after Hamdan v. Rumsfeld? , Journal of Comparative Public Law and International Law, 2007, Vol. 67 Issue 1, p1-92.

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