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Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings Rasul v. Bush, 542 U.S. 466 (2004)'

In Rasul v. Bush, the Court held in a 6-3 ruling that the federal habeas corpus statute, 28 U.S.C. § 2241, provided federal courts with jurisdiction to consider habeas corpus petitions by or on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba. Having found that Guantanamo detainees were entitled by statute to seek habeas review of their detention, the Court did not reach the issue of whether the constitutional writ of habeas also extended to noncitizens held at Guantanamo. Congress subsequently attempted to limit the reach of the federal habeas statute to Guantanamo detainees through the enactment of the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA).

Hamdan v. Rumsfeld, 548 U.S. 557 (2006)

In Hamdan v. Rumsfeld, the Supreme Court reviewed the validity of military tribunals established pursuant to presidential order to try suspected terrorists for violations of the law of war. The petitioner Hamdan was charged with conspiracy to commit a violation of the law of war. Prior to reaching the merits of the case, the Hamdan Court first had to determine whether the DTA stripped it of jurisdiction to review habeas corpus challenges by or on behalf of Guantanamo detainees whose petitions had already been filed prior to enactment of the DTA. In a 5-3 opinion, the Court held that the DTA did not apply to such petitions. Turning to the merits of the case, the majority held that the convened tribunals did not comply with the Uniform Code of Military Justice (UCMJ) or the law of war, as incorporated in the UCMJ and embodied in 1949 Geneva Conventions, which the Court held applicable to the armed conflict with Al Qaeda. The Court held that, at a minimum, Common Article 3 of the Geneva Conventions applies to persons captured in the conflict with Al Qaeda, according to them a minimum baseline of protections, including protection from the "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." The Court held that military commissions were not "regularly constituted" because they deviated too far from the rules that apply to courts-martial, without a satisfactory explanation of the need for departing from such rules. In particular, the Court noted that the commission rules allowing the exclusion of the defendant from attending portions of his trial or hearing some of the evidence against him deviated substantially from court-martial procedures.

A four-justice plurality of the Court also recognized that for an act to be triable under the common law of war, the precedent for it being treated as an offense must be "plain and unambiguous." After examining the history of military commission practice in the United States and internationally, the plurality further concluded that conspiracy to violate the law of war was not in itself a crime under the common law of war or the UCMJ.