|
BookStudyVol.I: VIII. Foreign Affairs
Perpich v. Department of Defense (1990)
https://www.oyez.org/cases/1989/89-542
Medellín v. Texas (2008)
https://www.oyez.org/cases/2007/06-984
Dames & Moore v. Regan (1981)
https://www.oyez.org/cases/1980/80-2078
Hamdi v. Rumsfeld (2004)
http://www.oyez.org/cases/2000-2009/2003/2003_03_6696
Hamdan v. Rumsfeld (2005)
http://www.oyez.org/cases/2000-2009/2005/2005_05_184
Perpich v. Department of Defense (1990)
Syllabus
Since 1933, federal law has provided that persons enlisting in a state National Guard unit simultaneously enlist in the National Guard of the United States, a part of the Army. The enlistees retain their status as state Guard members unless and until ordered to active federal duty, and revert to state status upon being relieved from federal service. The authority to order the Guard to federal duty was limited to periods of national emergency until 1952, when Congress broadly authorized orders "to active duty or active duty for training" without any emergency requirement, but provided that such orders could not be issued without the consent of the governor of the State concerned. After two State Governors refused to consent to federal training missions abroad for their Guard units, the gubernatorial consent requirement was partially repealed in 1986 by the "Montgomery Amendment," which provides that a governor cannot withhold consent with regard to active duty outside the United States because of any objection to the location, purpose, type, or schedule of such duty. Petitioner, Governor of Minnesota, filed a complaint for injunctive relief, alleging, inter alia, that the Montgomery Amendment had prevented him from withholding his consent to a 1987 federal training mission in Central America for certain members of the state Guard, and that the Amendment violates the Militia Clauses of Article I, § 8, of the Constitution, which authorize Congress to provide for (1) calling forth the militia to execute federal law, suppress insurrections, and repel invasions, and (2) organizing, arming, disciplining, and governing such part of the militia as may be employed in the federal service, reserving to the States the appointment of officers and the power to train the militia according to the discipline prescribed by Congress. The District Court rejected the Governor's challenge, holding that the federal Guard was created pursuant to Congress' Article I, § 8, power to raise and support armies; that the fact that Guard units also have an identity as part of the state militia does not limit Congress' plenary authority to train the units as it sees fit when the Guard is called to active federal service; and that, accordingly, the Constitution neither required the gubernatorial veto nor prohibited its withdrawal. The Court of Appeals affirmed.
Page 496 U. S. 335
Held: Article I's plain language, read as a whole, establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States without either the consent of a state governor or the declaration of a national emergency. Pp. 496 U. S. 347-355.
(a) The unchallenged validity of the dual enlistment system means that Guard members lose their state status when called to active federal duty, and, if that duty is a training mission, the training is performed by the Army. During such periods, the second Militia Clause is no longer applicable. Pp. 496 U. S. 347-349.
(b) This view of the constitutional issue was presupposed by the Selective Draft Law Cases, 245 U. S. 366, 245 U. S. 375, 245 U. S. 377, 245 U. S. 381-384, which held that the Militia Clauses do not constrain Congress' Article I, § 8, powers to provide for the common defense, raise and support armies, make rules for the governance of the Armed Forces, and enact necessary and proper laws for such purposes, but in fact provide additional grants of power to Congress. Pp. 496 U. S. 349-351.
(c) This interpretation merely recognizes the supremacy of federal power in the military affairs area, and does not significantly affect either the State's basic training responsibility or its ability to rely on its own Guard in state emergency situations. Pp. 496 U. S. 351-352.
(d) In light of the exclusivity of federal power over many aspects of military affairs, See Tarble's Case, 13 Wall. 397, the powers allowed to the States by existing statutes are significant. Pp. 496 U. S. 353-354.
(e) Thus, the Montgomery Amendment is not inconsistent with the Militia Clauses. Since the original gubernatorial veto was not constitutionally compelled, its partial repeal by the Amendment is constitutionally valid. Pp. 496 U. S. 354-355.
880 F.2d 11 (CA 8 1989), affirmed.
Medellín v. Texas (2008) Facts of the case
Jose Medellin, a Mexican national, was convicted and sentenced to death for participating in the gang rape and murder of two teenage girls in Houston. Medellin raised a post-conviction challenge arguing that the state had violated his rights under the Vienna Convention, a treaty to which the United States is a party. Article 36 of the Vienna Convention gives any foreign national detained for a crime the right to contact his consulate. After his petition was ultimately dismissed by the Supreme Court (see Medellin v. Dretke ), Medellin's case returned to the Texas Court of Criminal Appeals. Medellin's argument rested in part on a ruling of the International Court of Justice (ICJ) holding that the U.S. had violated the Vienna Convention rights of 51 Mexican nationals (including Medellin) and that their convictions must be reconsidered. Medellin argued that the Vienna Convention granted him an individual right that state courts must respect, a possibility left open by the Supreme Court's 2006 decision in Sanchez-Llamas v. Oregon. Medellin also cited a memorandum from the President of the United States that instructed state courts to comply with the ICJ's rulings by rehearing the cases. Medellin argued that the Constitution gives the President broad power to ensure that treaties are enforced, and that this power extends to the treatment of treaties in state court proceedings.
The Texas Court of Criminal Appeals rejected each of Medellin's arguments and dismissed his petition. The court interpreted Sanchez-Llamas as standing for the principle that rulings of the ICJ are not binding on state courts. The Texas court stood by its position that allowing Medellin to raise the Vienna Convention issue after his trial would violate state procedural rules, and that those rules were not supplanted by the Convention. The President had no authority to order the enforcement in state court of an ICJ ruling, because that would imply a law-making power not allocated to him by the Constitution.
Question
1. Did the President act within his constitutional and statutory foreign affairs authority when he determined that states must comply with the U.S. treaty obligation under the Vienna Convention by enforcing a decision of the International Court of Justice?
2. Does the Constitution require state courts to honor the treaty obligation of the U.S. by enforcing a decision of the International Court of Justice?
사건의 사실 멕시코 국적의 호세 메데인은 휴스턴에서 두 명의 십대 소녀를 집단 강간하고 살해한 혐의로 유죄 판결을 받고 사형을 선고받았습니다. Medellin은 미국이 당사국인 조약인 비엔나 협약에 따라 국가가 자신의 권리를 침해했다고 주장하면서 유죄 판결 후 이의를 제기했습니다. 비엔나 협약 제 36은 범죄로 구금 된 외국인에게 영사관에 연락 할 권리를 부여합니다. 그의 청원이 대법원에 의해 궁극적으로 기각된 후(Medellin v. Dretke 참조), Medellin의 사건은 텍사스 형사 항소 법원으로 돌아갔습니다. 메데인의 주장은 부분적으로 미국이 51명의 멕시코 국민(메데인 포함)의 비엔나 협약 권리를 침해했으며 그들의 유죄 판결을 재고해야 한다고 주장하는 국제사법재판소(ICJ)의 판결에 근거했습니다. 메데인은 비엔나 협약이 자신에게 주 법원이 존중해야 하는 개인의 권리를 부여했다고 주장했으며, 이는 2006년 대법원의 산체스-라마스 대 오레곤 판결에 의해 열려 있는 가능성입니다. Medellin은 또한 주 법원에 사건을 재심리하여 ICJ의 판결을 준수하도록 지시한 미국 대통령의 각서를 인용했습니다. Medellin은 헌법이 대통령에게 조약이 집행되도록 보장하는 광범위한 권한을 부여하고 있으며 이 권한은 주 법원 절차에서 조약의 처리까지 확장된다고 주장했습니다. 텍사스 형사 항소 법원은 Medellin의 각 주장을 기각하고 그의 청원을 기각했습니다. 법원은 산체스-라마스가 ICJ의 판결이 주 법원에 구속력이 없다는 원칙을 지지하는 것으로 해석했다. 텍사스 법원은 메데인이 재판 후 비엔나 협약 문제를 제기하도록 허용하는 것은 주 절차 규칙을 위반하는 것이며 이러한 규칙은 협약으로 대체되지 않는다는 입장을 고수했습니다. 대통령은 ICJ 판결에 대해 주 법원에서 집행을 명령할 권한이 없었는데, 이는 헌법에 의해 그에게 할당되지 않은 입법 권한을 의미하기 때문입니다.
질문 대통령은 국가가 국제 사법 재판소의 결정을 집행함으로써 비엔나 협약에 따른 미국 조약 의무를 준수해야 한다고 결정했을 때 헌법 및 법적 외교 권한 내에서 행동했습니까? 헌법은 주 법원이 국제 사법 재판소의 결정을 집행함으로써 미국의 조약 의무를 존중하도록 요구합니까?
Conclusion
The Court upheld the rulings of the Texas Court of Criminal Appeals in a 6-3 opinion written by Chief Justice John G. Roberts. The Court held that the signed Protocol of the Vienna Convention did not make the treaty self-executing and, therefore, the treaty is not binding upon state courts until it is enacted into law by Congress. Furthermore, Chief Justice Roberts characterized the presidential memorandum as an attempt by the executive branch to enforce a non-self executing treaty without the necessary Congressional action, giving it no binding authority on state courts. Justice John Paul Stevens concurred in the opinion and Justice Stephen Breyer, joined by Justices David Souter and Ruth Bader Ginsburg, authored a dissent.
법원은 John G. Roberts 대법원장이 작성한 6-3 의견에서 텍사스 형사 항소 법원의 판결을 지지했습니다. 법원은 서명된 비엔나 협약 의정서가 조약을 자체 집행하지 않았으므로 조약은 의회에서 법률로 제정될 때까지 주 법원에 구속력이 없다고 판결했습니다. 더욱이 로버츠 대법원장은 대통령 각서를 필요한 의회 조치 없이 자체 집행 조약을 시행하려는 행정부의 시도로 규정하여 주 법원에 구속력 있는 권한을 부여하지 않았습니다. 존 폴 스티븐스(John Paul Stevens) 대법관은 이 의견에 동의했고, 스티븐 브라이어(Stephen Breyer) 대법관은 데이비드 소터(David Souter) 대법관과 루스 베이더 긴즈버그(Ruth Bader Ginsburg) 대법관과 함께 반대 의견을 작성했습니다.
Medellín v. Texas
Opinion Announcement - March 25, 2008
John G. Roberts, Jr.
I have the opinion of the Court in Case 06-984, Medellin versus Texas.
The United States is a party to a treaty known as the Vienna Convention.
That treaty provides that if a foreign citizen is arrested, he has the right to get help from the representative of his home country and to be told of that right.
In this case, petitioner Medellin was arrested in Texas in connection with the brutal gang rape and murder of two girls aged 14 and 16.
He had lived in the United States since preschool, but was a citizen of Mexico.
Upon arrest, Medillin was advised of his Miranda rights, waived them in writing and gave a detailed confession.
He was not, however, advised of his rights under the Vienna Convention.
Medillin was convicted and sentenced to death.
After his conviction became final, Medillin argued that it should be set aside because of the Vienna Convention violation.
The state courts rejected that argument on the ground that it had not been raised in a timely manner under state law.
Meanwhile, the government of Mexico brought a complaint on behalf of Medillin and 50 other similarly situated Mexican citizens seeking relief for the violation of their Vienna Convention rights.
Mexico brought this complaint against the United States in the International Court of Justice.
The International Court of Justice, or ICJ, is an international tribunal located in The Hague that was established pursuant to the United Nations Charter.
The ICJ found in favor of Mexico ruling that the United States should require a reconsideration of Medillin's Vienna Convention claim despite his failure to comply with state procedural rules governing such challenges.
In the case of Sanchez-Llamas versus Oregon, decided in this Court less than two years ago, we confronted a claim by foreign nationals not included in the ICJ's judgment who similarly argued that the Vienna Convention required that state law be set aside in their cases.
We rejected that claim, disagreeing with the ICJ's interpretation of the Vienna Convention, holding instead that the Convention does not trump state procedural rules.
Now, following the ICJ's decision and notwithstanding our decision in Sanchez-Llamas, Medillin filed another application for relief in Texas state court.
He argued that because the United States agreed to the jurisdiction of the ICJ when it signed the Vienna Convention, the ICJ judgment was itself automatically federal law that required Texas to set aside its contrary state rules no matter what this Court had said in Sanchez-Llamas.
The Texas courts rejected that claim we granted review.
Going all the way back to an opinion by Chief Justice John Marshall, this Court has explained that there are two types of treaties.
The President can negotiate and the Senate can ratify a treaty that on its terms specifies that its provisions can automatically become federal law.
Such a treaty is called self-executing and it does indeed trump contrary state and even federal law.
The other type is a treaty that is not self-executing and its provisions become federal law only if Congress passes and the President signs, implementing legislation, giving that effect to them.
We conclude that the ICJ judgment did not automatically become federal law, overriding state law under the Supremacy Clause because the treaties pursuant to which the United States agreed to ICJ jurisdiction do not provide that ICJ judgments would be self-executing.
For example, the UN Charter says that member states will "undertake to comply" with ICJ judgments, which is different from saying they are automatically effective as domestic law.
The relevant treaties provide that ICJ judgments were to be enforced through the UN Security Council and the United States knew that it could always block enforcement if it disagreed with an ICJ judgment by exercising its Security Council veto.
That right would be taken away if ICJ judgments were automatically enforceable as federal law without more.
There are currently 47 nations that have submitted to ICJ jurisdiction in this area.
Not one treats ICJ judgments as binding law in their courts as Medillin argues we should.
For these and other reasons set forth in our opinion, we hold that the ICJ decision does not require Texas to set aside its state law and reconsider Medillin's conviction, but there is more to the case.
After the ICJ decision, the President sent a memorandum to the Attorney General stating that the United States would discharge its international obligations under the ICJ decision "by having state courts give effect to the decision."
Medillin argues that even if the ICJ judgment does not by itself require Texas to reconsider his Vienna Convention claim, the President's memorandum does.
The Solicitor General agrees.
We do not.
In this area, federal law that displaces state law can be created in one of two ways.
First, Congress can pass a law that the President signs or whose veto is overridden, or second, the President can make and the Senate can ratify a self-executing treaty.
You will notice that there's something about each of these options.
Each requires action by both the Executive and the Legislative Branches.
As a general manner, the framers did not trust one branch, acting alone, to create federal law.
Here, the argument is that the President acting alone created federal law that displaces state law.
We do not accept that proposition under the circumstances before us.
Accordingly, neither the ICJ judgment nor the President's memorandum give rise -- gives rise to federal law that displaces the application of Texas state law.
The decision below is affirmed.
Justice Stevens has written an opinion concurring in the judgment.
Justice Breyer has written a dissenting opinion in which Justices Souter and Ginsburg joined.
Dames & Moore v. Regan (1981) Facts of the case
In reaction to the seizure of the U.S. embassy and American nationals in Iran, President Jimmy Carter invoked the International Emergency Economic Powers Act (IEEPA) and froze Iranian assets in the United States. When the hostages were released in 1981, Treasury Secretary Donald Regan affirmed the agreements made the Carter administration that terminated all legal proceedings against the Iranian government and created an independent Claims Tribunal. Dames & Moore attempted to recover over $3 million owed to it by the Iranian government and claimed the executive orders were beyond the scope of presidential power.
Question
Did the president have the authority to transfer Iranian funds and to nullify legal claims against Iran?
Conclusion
The Court held that the International Emergency Economic Powers Act constituted a specific congressional authorization for the President to order the transfer of Iranian assets. The Court further held that although the IEEPA itself did not authorize the presidential suspension of legal claims, previous acts of Congress had "implicitly approved" of executive control of claim settlement. The Court emphasized the narrowness of its ruling, limiting the decision to the facts of the case.
사건의 사실 지미 카터 대통령은 이란 주재 미국 대사관과 미국 국민을 압수한 데 대응하여 국제비상경제권한법(IEEPA)을 발동하고 미국 내 이란 자산을 동결했습니다. 1981년 인질이 석방되었을 때 재무장관 도널드 레이건은 이란 정부에 대한 모든 법적 절차를 종료하고 독립적인 청구 재판소를 창설한 카터 행정부의 합의를 확인했습니다. Dames & Moore는 이란 정부가 빚진 300만 달러 이상을 회수하려고 시도했으며 행정 명령이 대통령 권한의 범위를 벗어났다고 주장했습니다.
질문 대통령은이란 자금을 이체하고이란에 대한 법적 청구를 무효화 할 권한이 있었습니까?
결론 법원은 국제비상경제권한법이 대통령이 이란 자산의 이전을 명령할 수 있는 특정 의회 권한을 구성한다고 판결했습니다.
법원은 또한 IEEPA 자체가 법적 청구에 대한 대통령의 정지를 승인하지 않았지만 이전 의회 행위는 청구 해결에 대한 집행 통제를 "암묵적으로 승인"했다고 판결했습니다. 법원은 판결의 협소함을 강조하면서 사건의 사실로 결정을 제한했습니다.
Hamdi v. Rumsfeld (2004)
Facts of the case
In the fall of 2001, Yaser Hamdi, an American citizen, was detained by the United States military in Afghanistan. He was accused of fighting for the Taliban against the U.S., declared an "enemy combatant," and was held in Guantanamo Bay. Upon learning he was an American citizen, he was transferred to a military prison in Virginia. Hamdi’s father, Esam Fouad Hamdi, filed a petition for a writ of habeas corpus naming himself as Hamdi’s “next friend,” in an attempt to have Hamdi’s detention declared unconstitutional. The district court granted Hamdi’s petition, and appointed the Federal Public Defender for the Eastern District of Virginia, Frank Dunham, Jr., as counsel for the petitioners. He argued that the government had violated Hamdi's Fifth Amendment right to Due Process by holding him indefinitely and not giving him access to an attorney or a trial. The government countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States "enemy combatants" and thus restrict their access to the court system.
The district court refused to answer the question of whether the declaration of "enemy combatant" was sufficient to justify his detention without review of materials and criteria used in making the determination. It ordered the government to produce these materials for a review by the court. Not wanting to produce these materials, the government appealed. The Fourth Circuit Court of Appeals panel reversed, finding that the separation of powers required federal courts to practice restraint during wartime because "the executive and legislative branches are organized to supervise the conduct of overseas conflict in a way that the judiciary simply is not." The panel therefore found that it should defer to the Executive Branch's "enemy combatant" determination.
Question
Did the government violate Hamdi's Fifth Amendment right to Due Process by holding him indefinitely, without access to an attorney, based solely on an Executive Branch declaration that he was an "enemy combatant" who fought against the United States? Does the separation of powers doctrine require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"?
사건의 사실 2001 년 가을, 미국 시민 인 야세르 함디 (Yaser Hamdi)는 아프가니스탄에서 미군에 의해 구금되었습니다. 그는 미국에 대항하여 탈레반을 위해 싸운 혐의로 기소되어 "적 전투원"으로 선언되어 관타나모 만에 수감되었습니다. 그가 미국 시민이라는 것을 알게 된 그는 버지니아에 있는 군 교도소로 이송되었습니다. 함디의 아버지 에삼 푸아드 함디(Esam Fouad Hamdi)는 함디의 구금이 위헌이라고 선언하기 위해 자신을 함디의 "다음 친구"로 지명한 인신보호영장에 청원서를 제출했다. 지방 법원은 Hamdi의 청원을 승인하고 버지니아 동부 지역의 연방 국선 변호인인 Frank Dunham, Jr.를 청원인의 변호인으로 임명했습니다. 그는 정부가 함디를 무기한으로 구금하고 변호사나 재판에 대한 접근을 허용하지 않음으로써 적법 절차에 대한 제5차 수정안의 권리를 침해했다고 주장했습니다. 정부는 행정부가 전시 중에 미국에 맞서 싸우는 사람들을 "적 전투원"으로 선언하여 법원 시스템에 대한 접근을 제한할 권리가 있다고 반박했습니다. 지방 법원은 결정을 내리는 데 사용된 자료와 기준을 검토하지 않고 "적 전투원"의 선언이 그의 구금을 정당화하기에 충분한지에 대한 질문에 대답을 거부했습니다. 법원은 법원의 검토를 위해 정부에 이러한 자료를 제출하도록 명령했습니다. 이러한 재료를 생산하기를 원하지 않는 정부는 호소했습니다. 제4 순회 항소 법원 패널은 권력 분립으로 인해 연방 법원이 전시 중에 자제해야 한다고 판단하여 "행정부와 입법부가 사법부가 단순히 그렇지 않은 방식으로 해외 분쟁의 수행을 감독하기 위해 조직되어 있기 때문"이라고 판결했습니다. 따라서 패널은 행정부의 "적 전투원" 결정을 따라야 한다고 판단했습니다.
질문 정부는 Hamdi가 미국에 맞서 싸운 "적군 전투원"이라는 행정부의 선언만을 근거로 변호사를 만나지 않고 무기한 구금함으로써 적법 절차에 대한 Hamdi의 제 5 차 수정안을 위반 했습니까?
권력 분립 원칙은 연방 법원이 미국 시민이 "적 전투원"이라는 행정부의 결정을 연기하도록 요구합니까?
Conclusion
Yes and no. In an opinion backed by a four-justice plurality and partly joined by two additional justices, Justice Sandra Day O'Connor wrote that although Congress authorized Hamdi's detention, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decisionmaker. The plurality rejected the government's argument that the separation-of-powers prevents the judiciary from hearing Hamdi's challenge. Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality that Hamdi had the right to challenge in court his status as an enemy combatant. Souter and Ginsburg, however, disagreed with the plurality's view that Congress authorized Hamdi's detention. Justice Antonin Scalia issued a dissent joined by Justice John Paul Stevens. Justice Clarence Thomas dissented separately.
그렇기도 하고 그렇지 않기도 하고. 산드라 데이 오코너(Sandra Day O'Connor) 대법관은 4명의 대법관 다수결로 지지되고 2명의 추가 대법관이 부분적으로 합류한 의견에서 의회가 함디의 구금을 승인했지만 제5차 수정헌법 적법 절차 보장은 적군 전투원으로 미국에 억류된 시민에게 중립적인 의사 결정자 앞에서 구금에 이의를 제기할 권리를 부여한다고 썼습니다. 다수결은 권력 분립이 사법부가 함디의 도전을 듣지 못하게 한다는 정부의 주장을 거부했다. David H. Souter 판사는 Ruth Bader Ginsburg 판사와 함께 Hamdi가 법정에서 적 전투원으로서의 지위에 이의를 제기할 권리가 있다는 다수결에 동의했습니다. 그러나 Souter와 Ginsburg는 의회가 Hamdi의 구금을 승인했다는 다수의 견해에 동의하지 않았습니다. 안토닌 스칼리아 대법관은 존 폴 스티븐스 대법관과 함께 반대 의견을 발표했습니다. 클래런스 토마스 대법관은 별도로 반대 의견을 냈다.
Hamdi v. Rumsfeld Opinion Announcement - June 28, 2004 William H. Rehnquist
The opinion of the Court in No. 03-6696, Hamdi versus Rumsfeld will be announced by Justice O’Connor.
Sandra Day O'Connor
This case comes here on certiorari to the United States Court of Appeals for the Fourth Circuit.
One week after the al Qaeda terrorist network used highjacked commercial airliners to attack prominent targets in the United States, Congress passed a resolution known as the Authorization for Use of Military Force, the acronym is -- I do not know how to pronounce it -- AUMF.
By its terms, the AUMF authorize the President to “use all necessary and appropriate force against those nations, organizations, or persons he determined planned, authorized, commited, or aided the terrorist attacks.”
Soon thereafter, the President ordered the United States Armed Forces to Afghanistan to subdue al Qaeda and the quell that is supporting Taliban regime.
The petitioner, Yaser Esam Hamdi is an American citizen whom the government has classified as an enemy combatant for allegedly taking up arms with the Taliban during this conflict.
He is being detained at a naval brig in South Carolina.
Hamdi’s father filed a present habeas petition on his behalf alleging, among other things, that the government is holding his son in violation of the Fifth and Fourteenth Amendments.
Although the petition did not elaborate on the factual circumstances of Hamdi’s capture and detention, his father has asserted elsewhere that Hamdi went to Afghanistan to do relief work less than two months before September 11th and could not have received military training.
The government attached its response to the habeas petition a declaration from defense department official, Michael Mobbs.
The Mobbs' declaration alleges various details regarding Hamdi’s trip to Afghanistan, his affiliation there with a Taliban unit during a time when the Taliban was battleling US allies, and his subsequent surrender of an assault riffle.
The District Court found that the Mobbs' declaration standing alone did not support Hamdi’s detention and ordered the government to turn over numerous additional materials for its review.
The Fourth Circuit Court of Appeals reversed stressing that because it was undisputed that Hamdi was captured in an active combat zone, no factual inquiry or evidentiary hearing allowing him to be heard or to rebut the government’s assertion was necessary or proper, concluding that the factual averments in the Mobbs' declaration, if accurate, provided a sufficient basis upon which to conclude that the President has constitutionally detained Hamdi, the Court of Appeals ordered the habeas petition dismissed.
We now vacate that judgment and remand the case for further proceedings.
Eight members of the Court agreed that judgment must be vacated or reversed but we are divided on the reasons.
The plurality opinion joined by the Chief Justice, Justice Kennedy, Justice Breyer, and myself concludes that Congress in the AUMF resolution has authorized the detention of enemy combatants in the narrow circumstances alleged in this case, but that due process demands that a United State citizen held in the United States as an enemy combatant must be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.
The first of our conclusions that detention is authorized is based on the necessary and appropriate force language of the AUMF.
It is been long recognized that preventive detention for the duration of the act of hostilities on a traditional battle field is a necessary and appropriate incident of war.
At least as to enemy combatants of the sort the government seeks to detain in this case, namely individual who were part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in armed conflict against the United States.
And as the Court held in Ray Huron, the case of an American citizen who acted as a Nazi spy during World War II, there is no bar to this nation’s holding one of its own citizens as an enemy combatant.
Although he disagrees with the plurality’s reasoning, Justice Thomas in a separate opinion agrees that Congress has authorize such detention.
The second of our conclusions, that Hamdi is entitled to further fact finding rejects the Fourth Circuit’s conclusion that further process is unnecessary based on what it labeled undisputed fact.
Hamdi was held entirely incommunicado and denied access to counsel until very recently.
The record does not disclose that he has conceided the fact as to the circumstances surrounding his seizure.
The statement in his habeas petition that he resided in Afghanistan when he was seized is not a confession that he was part of or supporting forces hostile to the United States and engaged in an armed conflict against the United States.
The government urges us to hold that further factual exploration is nevertheless unwarranted in light of the constitutional interest at stake, and that so long as it puts forth some evidence supporting its classification of Hamdi as an enemy combatant, he should have no greater chance to challenge that determination.
We disagree although, we recognize the legitimacy of some of the government’s concerns.
Using the balancing test set forth in Mathews versus Eldridge, we determine the process that is due in this circumstance by weighing the citizen’s fundamental liberty interest in being free from involuntary confinement against the way the government interest in insuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.
Ultimately, we conclude that a citizen detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification and a fair opportunity to rebut the government’s factual assertions before a neutral decision maker.
At the same time, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the executive at a time of ongoing military conflict.
Aside from unspecified screening processes in military interrogations in which the government suggest Hamdi could have told his side of the story, Hamdi has received no process to date.
We therefore vacate and remand for further proceedings.
There are other opinions, two of which I believe will be announced this morning.
Justice Thomas has filed a dissenting opinion.
David H. Souter
Justice Ginsburg and I have an opinion that agrees with part of the opinion Justice O’Connor has delivered for a plurality of Justices, but disagrees and dissents in part and that explains why we nonetheless join with the plurality to make a majority for the judgment of the Court.
We agree, as eight justices agreed, that the position taken by the government is untenable.
We could not possibly disagree with the plurality that Hamdi is entitled to representation by counsel or the judicial inquiry in any habeas corpus proceeding at the behest of Americans.
An American citizen may extend beyond the extremely limited scope conceited by the government.
Justice Ginsburg and I do disagree with the plurality however on the need to conduct any evidentiary inquiry in this case, but we conclude that on the record before us right now, the government is detaining Hamdi in violation of the law, and that if the government comes up with nothing further, Hamdi is entitled to be released.
In coming to this conclusion, we do not even reach a constitutional claim on Hamdi’s behalf or decide a constitutional issue.
For our view of the records, that the record supports Hamdi’s release rest on a statute of the United States, 18 United States Code 4001(a), known as the Non-detention Act.
That statute is short and its terms are uncompromising.
It reads that no citizen shall be imprisoned or otherwise detained except pursuant to an active Congress.
In other words, the government must have statutory authority before it may lock up an American citizen.
In our judgment, the government has shown no statutory authority to support its detention of Hamdi.
In our opinion, we explained that the Non-Detention Act should be read to require the government to show clear statutory authority.
The burden rests on the government.
The government’s best argument for statutory authority is the resolution passed by Congress in the aftermath of the 2001 terrorist attacks known as the Force Resolution.
But the Force Resolution speaks of using military force and says nothing about imprisoning or detaining citizens.
Although the government argues that authority to use military force is authority to detain enemy combatants including citizens in accordance with the customary laws of war.
The government has not shown that it is acting in accordance with the treaties and internationally recognized usages governing the conduct of war, and in fact, the record raises doubt on this point, and of course the government does not even argue that it can detain Hamdi for trial on criminal charges for it has held him largely incommunicado for over two years without charging him with any crime at all.
On this record, Hamdi is entitled to be released under the terms of the Non-Detention Act.
A majority of the Court does not agree on this disposition however, and in order to vacate the judgment of the Court of Appeals on the terms closest to the ones we would order, it is necessary for Justice Ginsburg and me to join with the plurality of the Court.
The case will therefore, be sent back for a habeas corpus proceeding in which Hamdi will have an opportunity to present evidence for the purpose of proving his claim that he is not an enemy combatant as the government says he is.
At the very least in our view, Hamdi is entitled to this opportunity.
Antonin Scalia
I have filed a dissent in this case with which Justice Stevens has joined.
The plurality opinion today, which has become the judgment of the Court, permits the imprisonment for what the constitution defines as treason without jury trial of an American citizen who protests his innocence of that effects.
In our view, this contradicts a long tradition of Anglo-American law and sets a dangerous precedent for the future.
Two provisions of the constitution are relevant: the first guarantees that no person shall be deprived of his liberty without due process of law; where the deprivation of liberty consists of incarceration for acts that the law makes criminal as opposed to, for example, quarantine for communicable disease or commitment for insanity, due process has always required the finding of guilt beyond a reasonable doubt in a public trial before a jury.
Where the government has sought to imprison the citizen without that due process, a second provision of the constitution has come into play, the guarantee of the great writ, the writ of habeas corpus.
That is the traditional means by which those imprisoned without due process have obtained their freedom.
The central question in the present case is whether there is a different special procedure for imprisonment of a citizen accused of wrongdoing by fighting on the enemy’s side in war time.
A plurality of this Court asserts the captured enemy combatants have traditionally been detained until the cessation of hostilities and then released.
That is an accurate description of war time practice with respect to enemy aliens.
The tradition with respect to American citizens however, has been quite different.
Citizens aiding the enemy have been treated as traitors subject to the criminal process.
In England, as early as 1350, the statute of treason made at the crime to levy War against the King.
Subjects accused of doing so were routinely prosecuted for treason.
The founders inherited that tradition, which is why our constitution contains a Treason Clause.
This defines treason, as among other things, levying war against the United States, and it provides that no person shall be convicted of that crime unless on the testimony of two witnesses to the same overt act or on confession in open court.
Quite clearly, a citizen’s levying war against the United States was to be punished criminal.
There are undoubtedly times when military exigency requires detention of a citizen without criminal charge.
In England, before the founding, parliament on numerous occasions passed temporary suspensions of the writ of habeas corpus in times of threatened invasion or rebellion including, during the American Revolution.
Our federal constitutions guarantee of habeas corpus contains a provision explicitly permitting suspension but limiting the situations in which it may be invoked.
It reads “the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion, the public safety may require it.”
This Suspension Clause was used for the first time during the Civil War when Congress passed a law authorizing executive suspension of the writ and it has been used on several occasions since.
And that is in a nutshell what this case is about.
Whether in the current war time circumstances, the constitutionally prescribed emergency means of enabling detention of citizens without criminal charge shall be adhered to, or whether the executive alone or the executive with the approval of this Court can device some other means of meeting the emergency.
The government justifies the detention of Hamdi on principles of the law of war.
It made the same claim that it could ignore the common law requirement of criminal trial with respect to an alleged traitor captured during the Civil War.
This Court’s reply in a famous case called Ex parte Milligan was as follows: if it was dangerous in the distracted condition of affairs to leave Milligan unrestrained of his liberty because he conspired against the government, afforded aid and comfort to rebels and insighted the people to insurrection, the law said to arrest him, confine him closely, render him powerless to do further mischief, and then present his case to the grand jury of the district with proofs of his guilt, and if indicted, try him according to the course of the common law.
I frankly do not know whether in the current emergency, criminal prosecution is sufficient to meet the government’s security needs including the need to obtain intelligence through interrogation.
It is far beyond my competence or the court’s competence to determine that, but it is not beyond Congress’.
If the situation demands it, the executive can ask Congress to authorize suspension of the writ which can be made subject to whatever conditions Congress seems appropriate including even the procedural novelties invented by the plurality today.
To be sure, suspension is limited by the constitution to cases of rebellion or invasion, but whether the attacks of September 11, 2001 constitute an invasion and whether those attacks still justify suspension several years later are questions for Congress rather than this Court.
If civil rights are to be curtailed during war time, it must be done openly and democratically as the constitution requires rather than by silent erosion through an opinion of this Court.
I will conclude with an opinion from the famous commentaries on the laws of England written by Blackstone about 11 years before the American Revolution.
He said, "To bereave a man of life or by violence to confiscate his estate without accusation or trial would be so gross and notorious an act of despotism as must at once conveye the alarm of tyranny throughout the kingdom.
But confinement of the person by secretly hurrying him off to jail where his sufferings are unknown or forgotten is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."
"To make imprisonment lawful, it must either be by process from the courts of judicature or by warrant from some legal officer having authority to commit to prison which warrant must express the causes of commitment in order to be examined into if necessary upon a habeas corpus.
If there will be no cause expressed, the jailer is not bound to detain the prisoner for the law judges, in this respect, that it is unreasonable to send a prisoner and not to signify with all the crimes alleged against him."
This passage was well-known to the framers.
It was quoted by Hamilton in federal list No. 84.
Hamdan v. Rumsfeld (2005)
Facts of the case
Salim Ahmed Hamdan, Osama bin Laden's former chauffeur, was captured by Afghan forces and imprisoned by the U.S. military in Guantanamo Bay. He filed a petition for a writ of habeas corpus in federal district court to challenge his detention. Before the district court ruled on the petition, he received a hearing from a military tribunal, which designated him an enemy combatant.
A few months later, the district court granted Hamdan's habeas petition, ruling that he must first be given a hearing to determine whether he was a prisoner of war under the Geneva Convention before he could be tried by a military commission. The Circuit Court of Appeals for the District of Columbia reversed the decision, however, finding that the Geneva Convention could not be enforced in federal court and that the establishment of military tribunals had been authorized by Congress and was therefore not unconstitutional.
Question
May the rights protected by the Geneva Convention be enforced in federal court through habeas corpus petitions? Was the military commission established to try Hamdan and others for alleged war crimes in the War on Terror authorized by the Congress or the inherent powers of the President?
Conclusion
Yes and no. The Supreme Court, in a 5-to-3 decision authored by Justice John Paul Stevens, held that neither an act of Congress nor the inherent powers of the Executive laid out in the Constitution expressly authorized the sort of military commission at issue in this case. Absent that express authorization, the commission had to comply with the ordinary laws of the United States and the laws of war. The Geneva Convention, as a part of the ordinary laws of war, could therefore be enforced by the Supreme Court, along with the statutory Uniform Code of Military Justice. Hamdan's exclusion from certain parts of his trial deemed classified by the military commission violated both of these, and the trial was therefore illegal. Justices Scalia, Thomas, and Alito dissented. Chief Justice John Roberts, who participated in the case while serving on the DC Circuit Court of Appeals, did not take part in the decision.
사건의 사실 오사마 빈 라덴의 전 운전사였던 살림 아메드 함단(Salim Ahmed Hamdan)은 아프간군에 체포되어 관타나모 만에서 미군에 의해 투옥되었습니다. 그는 자신의 구금에 이의를 제기하기 위해 연방 지방 법원에 인신 보호 영장을 신청했습니다. 지방 법원이 청원에 대한 판결을 내리기 전에 그는 군사 재판소로부터 심리를 받았고 그를 적군 전투원으로 지정했습니다. 몇 달 후, 지방 법원은 함단의 인신 보호 청원을 승인하여 군사위원회에서 재판을 받기 전에 제네바 협약에 따라 전쟁 포로인지 여부를 결정하기 위해 먼저 청문회를 받아야한다고 판결했습니다. 그러나 컬럼비아 특별구 순회 항소 법원은 제네바 협약이 연방 법원에서 집행 될 수 없으며 군사 재판소의 설립이 의회에 의해 승인되었으므로 위헌이 아니라고 판결하면서 결정을 뒤집었다.
질문 제네바 협약에 의해 보호되는 권리가 인신 보호 영장 청원을 통해 연방 법원에서 집행 될 수 있습니까? 군사위원회는 의회 또는 대통령의 고유 한 권한에 의해 승인 된 테러와의 전쟁에서 전쟁 범죄 혐의로 함단과 다른 사람들을 재판하기 위해 설립 되었습니까?
결론 그렇기도 하고 그렇지 않기도 하고. 대법원은 존 폴 스티븐스(John Paul Stevens) 대법관이 작성한 5대 3 판결에서 의회의 행위나 헌법에 명시된 행정부의 고유한 권한이 이 사건에서 문제가 되는 일종의 군사 위원회를 명시적으로 승인하지 않았다고 판결했습니다. 그러한 명시적인 승인이 없었기 때문에 위원회는 미국의 일반법과 전쟁법을 준수해야 했습니다. 따라서 일반 전쟁법의 일부인 제네바 협약은 법정 통일 군사 사법 법전과 함께 대법원에 의해 시행 될 수 있습니다. 군사위원회가 기밀로 간주한 재판의 특정 부분에서 함단을 배제한 것은 이 두 가지를 모두 위반한 것이므로 재판은 불법이었습니다. 스캘리아 대법관, 토마스 대법관, 알리토 대법관은 반대 의견을 냈다. DC 순회 항소 법원에서 근무하는 동안이 사건에 참여한 존 로버츠 대법원장은 결정에 참여하지 않았습니다.
Hamdan v. Rumsfeld Opinion Announcement - June 29, 2006 John Paul Stevens
I have the disposition to announce in No. 05-184, Hamdan against Rumsfeld.
Petitioner, a foreign national held in custody in an American prison at Guantanamo, has been charged with one count of conspiracy to commit, offenses triable by military commission."
He concedes that a court-martial convened in accordance with the Uniform Code of Military Justice or, of course, a civilian court would have jurisdiction to try him; but he contends that the military commission convened by the President lacks such authority, because the charge does not allege a violation of the law of war, and the commission's procedures violate both the UCMJ and the Geneva Conventions.
The District Court granted him relief, the Court of Appeals reversed, and we now reverse the Court of Appeals.
Our judgment is supported by three opinions.
My opinion speaks for the Court on the jurisdictional and certain merits systems; Justice Kennedy has filed an opinion concurring in part, primarily addressing the UCMJ and Geneva Convention issues; he is joined by Justices Souter, Ginsburg and Breyer; and Justice Breyer, joined by Justices Kennedy, Souter and Ginsburg, has filed a brief concurring opinion, pointing out that the concerns expressed by our dissenting colleagues merely require the President to seek Congressional authorization for the use of the type of military commission that he has established by Executive Order.
Justice Scalia has filed a dissenting opinion addressing the jurisdictional issues; Justice Thomas has filed a dissenting opinion addressing the merits; and Justice Alito has filed a dissenting opinion explaining why he believes that the commission is a regularly constituted court under the Geneva Conventions.
The Chief Justice has taken no part in our consideration or decision of the case.
Our opinions are quite long -- mine has 73 pages -- but I will try to be brief in this summary.
First with respect to jurisdiction, after we granted review in this case, Congress enacted a statute called the Detainee Treatment Act, or DTA.
One section of the DTA addresses the jurisdiction of federal courts to consider claims brought by individuals like Hamdan, who are being detained in Guantanamo Bay and elsewhere.
The first paragraph of that jurisdictional section purports to prevent any federal court from hearing a habeas corpus petition brought by a detainee.
The other two paragraphs of the same section channel review of, "final judgments," issued by combatant status-review tribunals and military commissions to the D.C. Circuit and also defined the scope of that review.
These latter two provisions are expressly made applicable to cases that were pending on the date of enactment of the DTA -- that is, on December 31, 2005 -- but the provision repealing habeas jurisdiction is not.
Shortly after the DTA was enacted, the Government moved to dismiss Hamdan's case on the ground that the new statute deprived us of jurisdiction to consider it.
We delayed consideration of the motion pending argument on the merit, and we now deny the motion.
Congress' failure to provide that the jurisdiction-stripping section of the DTA applies to pending cases stands in stark contrast to its expressed statement that the other jurisdictional provisions included in the same section so apply.
This contrast persuasively indicates that Congress did not intend the jurisdiction-stripping provision to apply to pending cases.
That inference is confirmed by the drafting history of the DTA.
Early versions of the proposed statute would have achieved exactly the result the Government urges here.
They would have expressly made the jurisdiction-stripping provision applicable to pending cases.
Following full debate and further amendments, however, Congress removed that language.
Statements made by Senators during floor debates on the Act, not after the Act was passed, including statements by one of the sponsors of the final bill, uniformly support the view that removal of that language was intended to preserve jurisdiction over pending cases.
The Government also argues that even if we do have jurisdiction, we should abstain from considering Hamdan's claims until the military commission has convicted him of the offense with which he is charged.
For the reasons given by both the Court of Appeals and the District Court, we disagree.
The comity considerations underlying the usual rule of abstention in military cases do no apply, because Hamdan is not a member of our armed forces, and his commission is not part of a Congressionally crafted system of military justice.
In these unique circumstances, which involve a special tribunal created not by Congress, but by the Executive Branch, it is appropriate to consider at this time the jurisdictional and procedural challenges that petitioner has raised.
Turning to the merits of Hamdan's claims, we consider first whether the commission that was convened to try him had been authorized by Congress.
Although we conclude, as we did an Ex parte Quirin, that Article 21 of the UCMJ recognizes the President's power to convene military commissions in some circumstances, we note, as we did in Quirin, that that power is carefully circumscribed.
Article 21 incorporates the common law governing military commissions and conditions the President's power to convene such commissions on compliance with the law of war, which includes international instruments like the Geneva Conventions.
The President also must comply with any applicable requirements of the UCMJ itself.
One article of the UCMJ, Article 36, is particularly relevant.
Article 36(a) requires that any rules the President adopts to govern proceedings before courts-martial and military commissions alike be consistent with other provisions of the UCMJ.
Among these other provisions is a requirement that the accused be present during most proceedings.
It is undisputed that the procedures adopted to try Hamdan, whose trial was in process when this case began, allow the accused and his civilian counsel to be excluded from proceedings and to be prohibited from seeing certain evidence.
These and other departures from courts-martial procedures, including the failure to adopt court-martial rules governing the admissibility of evidence, may not technically be inconsistent with other provisions of the UCMJ.
Technical consistency with the UCMJ itself is not the only requirement under Article 36, however.
Under Subsection (b) of that article, the rules for military commissions and court-martials must be uniform insofar as practicable.
This uniformity requirement, which was added to the UCMJ after World War II and our decisions in Quirin and Yamashita, codifies the historical practice of using court-martial proceedings when military commissions are being used absent some exigency.
The admitted deviations from court-martial proceedings in this case are not justified by any evident impracticability.
There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the rules of evidence that apply in courts-martial.
The danger posed by international terrorists, while certainly severe, does not by itself justify dispensing with usual procedures.
Because the procedures adopted to try Hamdan do not comply with the uniformity requirement of Article 36(b), we conclude that the commission lacks power to proceed.
For similar reasons, the commission lacks power to proceed under the Geneva Conventions, which are part of the law of war under Article 21 of the UCMJ.
Common Article 3 of those conventions, which we hold applicable to this case, prohibits the passing of sentences without previous judgment by a regularly constituted court, affording all the judicial guarantees recognized as indispensable by civilized peoples.
As Justice Kennedy explains in his separate writing, the regular military courts in our system are the courts-martial established by Congressional statute.
Of course, Articles 21 and 36 of the UCMJ envision the use of military commissions, but they also place constraints on that use.
At a minimum, a military commission specially convened by the President can be regularly constituted only if some practical need explains deviations from court-martial practice.
As I have said and as Justice Kennedy elaborates further in his opinion, no such need has been demonstrated here.
In a part of the opinion that Justice Kennedy did not join, because he regards the discussion of the merits in his opinion in the portions of the Court opinion that he has joined as sufficient to support our judgment, we conclude that the commission violates Common Article 3 in another respect, because its rules permit exclusion of the accused from his own trial and prevention of his access to evidence against him.
At least absent some expressed Congressional provision to the contrary, customary international law requires that a defendant be permitted to see and hear the evidence against him.
Finally, in another part of the opinion that Justice Kennedy did not join, we conclude that the offense with which Hamdan has been charged, conspiracy to commit acts of terrorism, is not an offense triable by this kind of military commission.
Military commissions historically have taken three forms: first, they have been used to stand in for civilian courts and to try civilian crimes in territory governed by military law when the civilian courts are closed.
They were so used during the Civil War, for example; second, they have been used, again as stand-in, for civilian courts in occupied territory, such as Germany after World War II; third, they have been used to try violation against the law of war during time of war, typically when courts-martial lack jurisdiction to try a particular defendant or offense.
Hamdan's commission is of the third type.
Therefore, in the absence of express statutory authority, it can try only those crimes that according to the common law violate the law of war.
In such cases, neither the elements of the offense nor the permissible punishment is defined by any statute.
For that reason, commentators have generally described this type of military commission as utterly different from the other two.
Conspiracy is, of course, a crime under federal statute and under the UCMJ; but no treaty or domestic statute makes conspiracy a war crime, and the historical materials from this country, as well as international sources, confirmed that it is not a war crime under the common law of war.
The Nuremberg judges, for example, pointedly refused to recognize conspiracy to commit war crimes as a standalone war crime.
The leading treatise on military law in this country does not list conspiracy of any kind as a violation of the law of war and says that law of war commissions may try people only for committing or attempting to commit overt acts that violate the law of war; and incidentally, none of the overt acts that Hamdan allegedly committed acting as Osama bin Laden's bodyguard and driver, transporting weapons and receiving training, is itself a violation of the law of war.
It is not enough, in our view, to identify a few instances in which a person has arguably been charged with or convicted of conspiracy by a law of war commission.
We must be cautious in developing and extending the common law of crimes.
That caution is all the more critical when the project is to discern the common law as developed and not by courts, but by military officers.
Under these circumstances, the precedent establishing a particular offense's status as a violation of the law of war must in our judgment be clear and unambiguous.
That is not the case here.
Because the jurisdiction of the law of war military commission stands and falls with the validity of the charge, we conclude that the defect in the charge against petitioner precludes this military commission from proceeding.
As Justice Breyer points out in his separate concurrence, our decision today is a limited one.
We decide, in effect, that Congress has denied the President the legislative authority to create this military commission.
Nothing prevents the President from returning to Congress to seek the authority he believes necessary, and no emergency stands in the way of such an effort.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.
Antonin Scalia
I have a dissenting opinion, which is a mere 24 pages.
It relates, however, solely to the issue of jurisdiction.
In my view, it is clear that this Court has no jurisdiction to pronounce the opinion it has released today.
It is easy to explain why.
On December 30th of last year, Congress enacted the Detainee Treatment Act, or DTA.
This statute provides that as of last December 30, "no 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 at Guantanamo Bay."
That language is perfectly clear and unambiguous.
As of last December 30, no court or justice, including this Court and these nine Justices, had jurisdiction to consider the habeas petition of Hamdan, who is an alien detained at Guantanamo Bay.
To make what is clear doubly-clear, there is a long, long line of Supreme Court precedent holding that a statute eliminating jurisdiction applies to pending cases unless it contains an explicit reservation saying that it does not, which this statute does not contain.
To quote one of those cases, "This rule, that when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law, has been adhered to consistently by this Court."
Today's is the first case in American history, and perhaps Anglo-American history, in which a court has failed to apply to pending cases a statute ousting jurisdiction that did not contain an explicit exception for pending cases, and the cases coming out the other way are legion.
The Court today ignores this rule and finds that the plain language of the statute does not mean what it says on the basis of the flimsiest of reasons.
It relies first on a so-called "negative inference", drawn from the fact that the DTA explicitly says that two other provisions are applicable to pending cases.
It does not explicitly say that this provision is.
There is no such negative inference for a number of reasons, including most prominently the fact that there was good reason to make the inclusion of pending cases explicit for these other provisions, which conferred new jurisdiction rather than eliminating old jurisdiction and thus did not benefit from the invariable rule of inclusion applicable to elimination of jurisdiction.
Moreover -- and this is truly ironic -- by finding a negative inference, the Court makes a nullity of the very provisions from which the negative inference is drawn.
Those provisions confer exclusive jurisdiction over certain categories of Guantanamo cases upon the United States Court of Appeals for the District of Columbia Circuit, explicitly effective with regardto pending cases.
But when the Court today finds that the ouster of the jurisdiction of habeas courts is not effective with regard to pending cases, that prescribed exclusivity of these other two provisions is utterly destroyed.
Habeas courts now retain jurisdiction over every single habeas petition of a Guantanamo detainee that was pending last December 30, when the DTA was enacted.
There are hundreds of such petitions; so that today's jurisdictional decision ensures that Guantanamo litigation will continue in district courts for many years to come.
The Court tries to find a fig leaf for its interpretation of the DTA in the statute's legislative history.
This attempt results in one of our most unfortunate uses of legislative history in recent decades, and that is saying something.
Not only is the Court's use of the floor debate openly selective, there are statements to the contrary of the ones it relies upon.
But the fragments of Senatorial speeches that it relies upon were quite clearly deliberately prepared by the staff of tiny handful of Senators to be cited in the briefs of this very litigation, which the Senate knew was pending when it enacted the bill.
What makes matters even worse, however, is that even we had habeas jurisdiction over this case, under ordinary principles of sound equitable discretion -- habeas is an equitable remedy -- we would normally not exercise that jurisdiction.
Under the DTA, every single one of Hamdan's claims will receive full consideration by Article 3 courts, once he has exhausted his military and the Executive Branch appeals.
In the past, we have abstained from interfering with ongoing court-martial proceedings, even though we had jurisdiction, reserving consideration of objections to later judicial review.
In a case called Councilman, we abstained from interfering with ongoing military proceedings relating to such a relatively insignificant matter as prosecution for a serviceman's possession of marijuana.
Today, by contrast, the Court rushes forward to uphold an unprecedented injunction against ongoing military commission proceedings that relate to a far more serious charge, namely, that Hamdan joined and actively abetted the murderous conspiracy that slaughtered thousands of American civilians without warning on September 11, 2001.
Our interference in this case over the Executive's objection creates significant and wholly gratuitous inter-branch conflict in an area where we have no expertise.
The most notable feature of today's principle opinion is that it brushes aside one after another long-settled doctrine in order to reach its desired result.
I have spoken only of doctrines pertaining to jurisdiction.
Justice Thomas' opinion, which I join and which he will describe, speaks to the merits.
When all of these ignored doctrines on jurisdiction and on the merits are combined, they form an impressive list.
They include the rule that repeals of jurisdiction apply to pending cases; the rule that legislative history and oblique structural references cannot be used to distort the unambiguous words of a statute; the rule that we should avoid unnecessary conflict with the Executive, especially in areas where his expertise is maximal and ours is minimal, if not nonexistent; the rule that determinations about the nature and scope of an armed conflict are solely committed to the Executive; the rule that the offenses chargeable before a military commission are determined with reference to the experience of our wars and with great deference to the Executive; the rule that the President has virtually unfettered authority to prescribe the jurisdiction and procedure of military commissions; the rule that the Executive's interpretation of a treaty provision is entitled to great weight; and the rule that Constitutional claims based on contingent events are unripe, especially when they challenge an anticipated action of the political branches that may never occur.
Our past practice has always been to err on the side of caution and deference to the Executive in cases involving the prosecution of warfare and judgments about the appropriate use of military power, including the power to try enemy captives.
Today, that edifice of caution and deference comes crashing down.
The Court takes on a new role as active manager of the details of military conflicts.
We bring neither lawful jurisdiction nor competence to the performance of this role.
For all these reasons, I vigorously dissent.
Clarence Thomas
I have filed a dissent in this case, which Justice Scalia has joined and which Justice Alito has joined in part.
In 15 terms on this Court, I have never read a dissent from the Bench; but today's requires that I do so.
A mere ten days ago, each member of today's plurality deferred to the Army Corps of Engineers highly questionable determination that storm drains, roadside ditches and desert washes are navigable waters or, rather, waters of the United States.
Today, when there is much more stake than ephemeral pools of water, the plurality and the Court repeatedly refuse to defer to the wartime judgment of the President himself.
The Court's determination that it is qualified to pass on the military necessity of the Commander in Chief's decision to employ a particular form of force against our enemies is unprecedented, and it is unsupported by any authoritative source of law, and as specifically refuted by every relevant historical example.
Accordingly, I respectfully dissent.
Today, we review a core exercise of the President's Commander in Chief authority, one expressly approved by Congress.
The President's decision to try petitioner for war crimes before a military commission derives support not only from the Uniform Code of Military Justice, which expressly recognizes the President's prerogative to convene military commissions, but also from Congress's recent authorization permitting the President to use, "all necessary and appropriate force," against our enemies in the war on terrorism.
Indeed, in the Hamdi case, the majority of this Court concluded that Congress's authorization to use military force authorized the trial of unlawful combatants like Hamdan.
Thus, as this Court has held in similar contexts, the President's actions in this case are, , "supported by the strongest presumptions and the widest latitude of judicial interpretation."
But today, far from affording the President the deference he is due, the plurality and the Court second-guess his judgments at every step.
The plurality would hold that petitioner has not been charged with an offense triable before a military commission.
This conclusion is unsupportable.
Petitioner has been charged both with joining a war-criminal enterprise and with conspiring with Al-Qaeda to commit various war crimes.
Each of these offenses provides an independent basis for petitioner's trial by military commission.
The crime of unlawful membership in a war-criminal organization was repeatedly tried before Civil War military commissions and before the American Military Tribunal in Nuremberg and is recognized in all of the relevant treatises as a crime against the laws of war.
Even if there were some doubt as to whether petitioner could be tried simply for joining Al-Qaeda, it is undisputed that it is a crime against the laws of war for an unlawful combatant to provide the enemy with arms, transportation and other services.
Petitioner has been charged with supplying such provision and services to Al-Qaeda's top leadership, and thus the President has the authority to try him on these grounds alone.
In addition, the charge that petitioner conspired with members of Al-Qaeda to violate the laws of war is triable by military commission.
Conspiracy to violate the laws of war was the sole charge in the highest profiled military commission trial in the Civil War, the military commission trial of the Lincoln conspirators, and was also charged in the highest profiled case in World War II, the military commission trial of the Quirin saboteurs.
Moreover, the orders establishing military-commission jurisdiction in those conflicts expressly provided that conspiracy to violate the laws of war was a cognizable offense, and the treatises were filled with examples of military-commission trials on the charge of conspiracy.
The Court's conclusion that the Uniform Code of Military Justice requires the President to employ the same procedures in petitioner's military commission as would be employed in court-martial is similarly unpersuasive.
While the Court acknowledges that Article 21 of that Code authorizes the President to convene military commissions in certain circumstances, it fails to acknowledge that this Court has previously held that Article 21 preserves the common-law war status of military commissions, including the President's authority to prescribe their structure and procedures in the manner he sees fit.
Instead, the Court concludes that Article 36(b) of the Code requires procedural parity between military commissions and courts-martial.
But Article 36(b) does not mention military commissions and, thus, cannot plausibly be read to overrule the settled meaning of Article 21 as preserving the President's unfettered authority to prescribe military-commission procedures.
Rather, Article 36(b) merely implements the primary purpose of the Code, namely, to establish procedural uniformity among the different branches of our armed-force services.
It does not require procedural uniformity among different tribunals; indeed, the Code itself authorizes different tribunals to employ different procedures.
The Court fares no better in its analysis of the Common Article 3 of the Geneva Convention.
As an initial matter, the Court's determination that the substantive provisions of the Geneva Convention are judicially enforceable is foreclosed by Johnson v. Eisentrager, which held that the Geneva Conventions provide an exclusive diplomatic enforcement scheme.
The Court attempts to escape this holding by concluding that Article 21 of the Uniform Code of Military Justice renders the Geneva Conventions judicially enforceable; but that position is untenable, as the military commission in Eisentrager was also subject to the requirement of Article 21.
Moreover, even if Common Article 3 were judicially enforceable, the President has determined that it does not apply to the present conflict, and that determination is entitled to deference.
Common Article 3, by its terms, applies only to, "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties."
The President has determined that Common Article 3 does not apply, because the present conflict is of an international character, as our enemy is dispersed throughout several nations; that is, occurring in territories of more than one of the High Contracting Parties.
The Court does not suggest that the President's interpretation is implausible or even unreasonable; rather, it offers its own admittedly plausible interpretation.
But under our precedents, we must defer to the President's reasonable interpretation of a treaty, particularly when that determination pertains to the nature of a conflict.
The Court does not so much as acknowledge these precedents.
Lastly, assuming for the sake of argument the judicial enforceability of Common Article 3, military commissions satisfy the requirement of that provision.
Military commissions are plainly, regularly constituted, as they have been constituted in numerous conflicts over the past 150 years, and have been upheld on several occasions by this Court.
Moreover, the procedures that govern petitioner's commission entitle him to the judicial guarantees recognized as indispensable by, to borrow the language of Common Article 3, "civilized peoples;" that is, he is presumed innocent, may not be convicted without proof beyond a reasonable doubt, has a right to remain silent and may confront witnesses.
This is the straightforward case involving fundamental principles and controlling precedents.
The Court of Appeals, by adhering to these principles and precedents, unanimously rejected petitioner's claims in a mere 18 pages.
This Court should have done likewise.
|