User:Geo Swan/Guantanamo/Hamdan v. Rumsfeld

(Slip Opinion) OCTOBER TERM, 2005

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

'''SUPREME COURT OF THE UNITED STATES

Syllabus

HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 05–184. Argued March 28, 2006—Decided June 29, 2006

Pursuant to Congress’ Joint Resolution authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided” the September 11, 2001, al Qaeda terrorist attacks(AUMF), U. S. Armed Forces invaded Afghanistan. During the hostilities, in 2001, militia forces captured petitioner Hamdan, a Yemeni national, and turned him over to the U. S. military, which, in 2002,transported him to prison in Guantanamo Bay, Cuba. Over a year later, the President deemed Hamdan eligible for trial by militarycommission for then-unspecified crimes. After another year, he was charged with conspiracy “to commit. . . offenses triable by militarycommission.” In habeas and mandamus petitions, Hamdan asserted that the military commission lacks authority to try him because (1)neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, isnot a violation of the law of war; and (2) the procedures adopted totry him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.

The District Court granted habeas relief and stayed the commission’s proceedings, concluding that the President’s authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war; that such law includes the Third Geneva Convention; that Hamdan is entitled to that Convention’s full protections until adjudged, under it, not to be a prisoner of war; and that, whether or not Hamdan is properly classified a prisoner of war, the commission convened to try him was established in violation of both the Uniform Code of Military Justice (UCMJ), 10U. S. C. §801 et seq., and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear. The D. C. Circuit reversed. Although it declined the Government’s invitation to abstain from considering Hamdan’s challenge, cf. Schlesinger v. Councilman, 420 U. S. 738, the appeals court ruled, on the merits, that Hamdan was not entitled to relief because the Geneva Conventions are not judicially enforceable. The court also concluded that Ex parte Quirin, 317 U. S. 1, foreclosed any separation-of-powers objection to the military commission’s jurisdiction, and that Hamdan’s trial before the commission would violate neither the UCMJ nor Armed Forces regulations implementing the GenevaConventions.

Held: The judgment is reversed, and the case is remanded.

415 F. 3d 33, reversed and remanded.

JUSTICE STEVENS delivered the opinion of the Court, except as to Parts V and VI–D–iv, concluding:

1. The Government’s motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied. DTA §1005(e)(1) provides that “no court. . . shall have jurisdiction to hear or consider. . . an application for. . . habeas corpus filed by. . . an alien detained. . . at Guantanamo Bay.” Section 1005(h)(2) provides that §§1005(e)(2) and(3)—which give the D. C. Circuit “exclusive” jurisdiction to review the final decisions of, respectively, combatant status review tribunals and military commissions—“shall apply with respect to any claim whose review is. . . pending on” the DTA’s effective date, as was Hamdan’s case. The Government’s argument that §§1005(e)(1) and(h) repeal this Court’s jurisdiction to review the decision below is rebutted by ordinary principles of statutory construction. A negative inference may be drawn from Congress’ failure to include §1005(e)(1)within the scope of §1005(h)(2). Cf., e.g., Lindh v. Murphy, 521 U. S. 320, 330. “If. . . Congress was reasonably concerned to ensure that[§§1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [§1005(e)(1)], unless it had the different intent that the latter [section] not be applied to the general run of pending cases.” Id., at 329. If anything, the evidence of deliberate omission is stronger here than it was in Lindh. The legislative history shows that Congress not only considered the respective temporal reaches of §§1005(e)(1), (2), and (3) together at every stage, but omitted paragraph (1) from its directive only after having rejected earlier proposed versions of the statute that would have included what is now paragraph (1) within that directive’s scope. Congress’ rejection of the very language that would have achieved the result the Government urges weighs heavily against the Government’s interpretation. See Doe v. Chao, 540 U. S. 614, 621–623. Pp. 7–20.2.

The Government argues unpersuasively that abstention is appropriate under Councilman, which concluded that, as a matter of comity, federal courts should normally abstain from intervening in pending courts-martial against service members, see 420 U. S., at740. Neither of the comity considerations Councilman identified weighs in favor of abstention here. First, the assertion that military discipline and, therefore, the Armed Forces’ efficient operation, are best served if the military justice system acts without regular interference from civilian courts, see id., at 752, is inapt because Hamdan is not a service member. Second, the view that federal courts should respect the balance Congress struck when it created “an integrated system of military courts and review procedures” is inapposite, since the tribunal convened to try Hamdan is not part of that integrated system. Rather than Councilman, the most relevant precedent is Ex parte Quirin, where the Court, far from abstaining pending the conclusion of ongoing military proceedings, expedited its review becauseof (1) the public importance of the questions raised, (2) the Court’s duty, in both peace and war, to preserve the constitutional safe-guards of civil liberty, and (3) the public interest in a decision onthose questions without delay, 317 U. S, at 19. The Government has identified no countervailing interest that would permit federal courtsto depart from their general duty to exercise the jurisdiction Congress has conferred on them. Pp. 20–25.3.

The military commission at issue is not expressly authorized byany congressional Act. Quirin held that Congress had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law of war. 317 U. S., at 28. UCMJ Art. 21, which is substantially identical to the old Art. 15, reads: “The jurisdiction [of] courts-martial shall not be construed as depriving military commissions. . . of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such. . . commissions.” 10 U. S. C. §821. Contrary to the Government’s assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions with the express condition that he and those under his command comply with the law of war. See 317 U. S., at 28–29. Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include tion. See Doe v. Chao, 540 U. S. 614, 621–623. Pp. 7–20.2. The Government argues unpersuasively that abstention is ap-propriate under Councilman, which concluded that, as a matter of comity, federal courts should normally abstain from intervening in pending courts-martial against service members, see 420 U. S., at740. Neither of the comity considerations Councilman identified weighs in favor of abstention here. First, the assertion that militarydiscipline and, therefore, the Armed Forces’ efficient operation, are best served if the military justice system acts without regular inter-ference from civilian courts, see id., at 752, is inapt because Hamdan is not a service member. Second, the view that federal courts should respect the balance Congress struck when it created “an integrated system of military courts and review procedures” is inapposite, sincethe tribunal convened to try Hamdan is not part of that integrated system. Rather than Councilman, the most relevant precedent is Ex parte Quirin, where the Court, far from abstaining pending the con-clusion of ongoing military proceedings, expedited its review becauseof (1) the public importance of the questions raised, (2) the Court’s duty, in both peace and war, to preserve the constitutional safe-guards of civil liberty, and (3) the public interest in a decision onthose questions without delay, 317 U. S, at 19. The Government has identified no countervailing interest that would permit federal courtsto depart from their general duty to exercise the jurisdiction Con-gress has conferred on them. Pp. 20–25.3. The military commission at issue is not expressly authorized byany congressional Act. Quirin held that Congress had, through Arti-cle of War 15, sanctioned the use of military commissions to try of-fenders or offenses against the law of war. 317 U. S., at 28. UCMJ Art. 21, which is substantially identical to the old Art. 15, reads: “Thejurisdiction [of] courts-martial shall not be construed as deprivingmilitary commissions. . . of concurrent jurisdiction in respect of of-fenders or offenses that by statute or by the law of war may be triedby such. . . commissions.” 10 U. S. C. §821. Contrary to the Gov-ernment’s assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissionswhenever he deems them necessary. Rather, Quirin recognized thatCongress had simply preserved what power, under the Constitutionand the common law of war, the President already had to convene military commissions—with the express condition that he and those under his command comply with the law of war. See 317 U. S., at 28–29. Neither the AUMF nor the DTA can be read to provide spe-cific, overriding authorization for the commission convened to tryHamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include