Hamdan v. Rumsfeld, Secretary of Defense et al.
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||Supreme Court, United States
||Decision on Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit
||29 June 2006
- Salim Ahmed Hamdan
- Donald H. Rumsfeld et al
||civilian objects, common Article 3, destruction of property, international armed conflict, jurisdiction, violence to life
|Other countries involved
Salim Ahmed Hamdan, a Yemeni citizen, was Osama bin Laden’s driver. Captured in Afghanistan in 2001 by members of the United States Armed Forces, he was transferred to the United States detention centre at Guantanamo Bay in 2002. By an order of the President of the United States, Hamdan was designated to stand trial before a United States Military Commission for charges of conspiracy to commit multiple offenses, including attacking civilians and civilian objects, murder by an unprivileged belligerent, destruction of property by an unprivileged belligerent and terrorism. Hamdan’s counsel applied for a writ of habeas corpus alleging that the military commissions were unlawful and trial before them would violate Hamdan’s rights of access to a court.
In this decision, the Supreme Court reversed the decision of the Court of Appeal for the District of Columbia and held that Hamdan’s trial by military commission would be unlawful for a number of reasons: conspiracy, with which he is charged, is not a crime against the laws of war, the commissions do not conform to the requirements of the Uniform Code of Military Justice, nor with the rights guaranteed to Hamdan under the 1949 Geneva Conventions.
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In late 2001, Hamdan, the former driver of Osama Bin Laden, was captured in Afghanistan and detained by American military forces. In June 2002, Hamdan was transferred to the detention facility set up by the United States Department of Defense at Guantanamo Bay, Cuba. On 3 July 2003, the President of the United States designated Hamdan for trial by military commission.
In December 2003, Hamdan was placed in isolation in Camp Echo, a facility within the detention centre at Guantanamo Bay, and military counsel was appointed for him. On 12 February 2004, Hamdan’s counsel filed a demand for charges and speedy trial under Article 10 of the Uniform Code of Military Justice (UCMJ).
On 23 February 2004 the Appointing Authority, designated by the Secretary of Defense to issue orders establishing and regulating the military commissions, ruled that the UCMJ did not apply to Hamdan’s detention.
On 6 April 2004, Hamdan’s counsel filed before the District Court for the Western District of Washington a petition for habeas corpus.
On 9 July 2004, Hamdan was formally charged with conspiracy to commit attacks on civilians and civilian objects, murder and destruction of property as an unprivileged belligerent, and acts of terrorism. On 8 November 2004, the District Court for the District of Columbia held that Hamdan could not be tried by a military commission unless a competent tribunal determined that he was not a prisoner of war under the 1949 Geneva Convention.
On 15 July 2005, the Court of Appeal for the District of Columbia reversed the decision and held that Hamdan could be tried by military commission.
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The United States Congress subsequently passed the Military Commissions Act of 2006.
On 6 August 2008, a United States Jury composed of six military officers convicted Hamdan of providing material support for terrorism. He was acquitted on the charge of conspiracy and three of the eight charges of material support. He was sentenced to 66 months’ confinement, but the military judge credited him with 61 months and 8 days for the time he spent in pre-trial detention. On 24 November 2008, Hamdan was transferred to Yemen where he remained in prison until 27 December 2008.
Hamdan appealed his conviction to the US Court of Military Commission Review. By a decision of 24 June 2011, Hamdan’s conviction and sentence were affirmed.
Hamdan appealed to the Court of Appeals for the District of Columbia. By a decision of 16 October 2012, the Court of Appeal overturned Hamdan’s conviction on the grounds that material support for terrorism was not a war crime before 2001 (see J.H. Cushman, 'Appeals Court Overturn Terrorism Conviction of Bin Laden’s Driver', The New York Times, 16 October 2012).
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Legally relevant facts
Following the September 11 attack perpetrated by Al Qaeda against the United States, the United States Congress adopted a Joint Resolution authorising the President to use all necessary and appropriate force in order to prevent any future acts of international terrorism against the United States (Authorisation to Use Military Force). Acting pursuant to this Resolution, the President ordered the Armed Forces of the United States to invade Afghanistan, having determined that the Taliban regime had supported Al Qaeda. In the ensuing hostilities, Hamdan was amongst those individuals captured and transported to Guantanamo Bay (p. 3).
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Core legal questions
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- Does the military commission which intends to try Hamdan lack authority because neither congressional Act nor common law of war support trial by military commission for the crime of conspiracy?
- Does the military commission which intends to try Hamdan lack authority because the procedures adopted by the military commission violate principles of military and international law, in particular, the right to see and hear evidence against the accused?
Specific legal rules and provisions
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- Common Article 3 of the Geneva Conventions.
- US Authorisation to Use Military Force.
- US Military Commission Order No. 1.
- US Detainee Treatment Act.
- US Uniform Code of Military Justice (Ch. 47, Title 10 of the US Code).
Court's holding and analysis
Absent specific Congressional authorisation for the establishment of the military commission in question, it falls to the Court to determine whether the commission is justified under the Constitution and laws, including the law of war (p. 30). It results from the common law governing military commissions that a precondition for the exercise of jurisdiction by such a military commission is that the offense with which the accused is charged was committed in, and during, a theatre of war. The charge against Hamdan alleges a conspiracy from 1996 to November 2001. Only 2 months of this 5 year period preceded the attacks of September 11 and the enactment of the Authorisation to Use Military Force, the Act of Congress on which the Government relies for its authority to convene the military commission. Neither Hamdan’s alleged agreement with bin Laden and others to commit war crimes, nor a single act occurred in a theatre of war or during a war (pp. 34-36). Furthermore, conspiracy is not a war crime: it has rarely, if ever, been tried as such in the United States by any military commission and does not appear in either the Geneva or Hague Conventions, the major treaties on the law of war (pp. 40, 46).
Trial by the military commission in question also fails because its procedures violate the Uniform Code of Military Justice and the rules and precepts of the law of nations (p. 49-60). Furthermore, the military commission violates the Geneva Conventions (p. 62). Irrespective of whether or not the Geneva Conventions are judicially enforceable, the rights guaranteed under the Convention form part of the laws of war and military commissions are obliged to comply with the laws of war (p. 65). The Court added that at the least Common Article 3 to the Geneva Conventions applies to Hamdan, which requires that he be tried by a regularly constituted court - military commissions are not such courts (pp. 69-72).
The judgment of the Court of Appeal is reversed (p. 72).
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- J. Ku & J. Yoo, 'Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch', Constitutional Commentary, 2006, Vol. 23, p. 179;
- S.D. Murphy, 'Evolving Geneva Convention Paradigms in the “War on Terrorism”: Applying the Core Rules to the Release of Persons Deemed ‘Unprivileged Combatants”', George Washington Law Review, 2007, Vol. 75;
- S.J. Finnin, 'Casenote: Salim Ahmed Hamdan, Petitioner Vs. Donald H. Rumsfeld, Secretary of Defense', Melbourne Journal of International Law, 2006, Vol. 7, No. 2, pp. 373-406;
- G.P. Fletcher, 'The Hamdan Case and Conspiracy as a War Crime: A New Beginning for International Law in the US', Journal of International Criminal Justice, 2006, Vol. 4, Issue 3, pp. 442-447;
- M.A. Drumbl, 'The Expressive Value of Prosecuting and Punishing Terrorists: Hamdan, the Geneva Conventions, and International Criminal Law', George Washington Law Review, 2007, Vol. 75;
- D.A. Hass, 'Crafting Military Commissions Post-Hamdan: The Military Commissions Act of 2006', Indiana Law Journal, 2007, Vol. 82, pp. 1101-1125;
- O.A. Hathaway, 'Hamdan v. Rumsfeld: Domestic Enforcement of International Law', in International Law Stories, Foundation Press, 2007;
- F.D. Ni Aolain, 'Hamdan and Common Article 3: Did the Supreme Court Get It Right?', Minnesota Law Review, 2007, Vol. 91, pp. 1525-1564;
- E. Shamir-Borer, 'Revisiting Hamdan v. Rumsfeld’s Analysis of the Laws of Armed Conflict', Emory International Law Review, 2007, Vol. 21;
- R.D. Rotunda, 'Holding Enemy Combatants in the Wake of Hamdan', The Journal of the Federalist Society's Practice Groups, 2007, Vol. 8, No. 3, pp.
- P.E. Quint, 'Silences and Peculiarities of the Hamdan Opinions', Maryland Law Review, 2007, Vol. 66, No. 3, pp. 772-786;
- M. Milanovic, 'Lessons for Human Rights and Humanitarian Law in the War on Terror: Comparing Hamdan and the Israeli Targeted Killings Case', International Review of the Red Cross, 2007, Vol. 89, No. 866, p. 373;
- A.N. Guiora, 'Quirin to Hamdan: Creating a Hybrid Paradigm for the Detention of Terrorists', Case Legal Studies Research Paper No. 06-19, 29 June 2010;
- A.S. Weiner, 'Hamdan, Terror, War', Stanford Public Law Working Paper No. 1071944, 2007.
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- Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I), 12 August 1949, 75 UNTS 35, entered into force 21 October 1950.
- Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II), 12 August 1949, 75 UNTS 81, entered into force 21 October 1950.
- Geneva Convention relative to the Treatment of Prisoners of War (GC III), 12 August 1949, 75 UNTS 135, entered into force 21 October 1950.
- Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), 12 August 1949, 75 UNTS 287, entered into force 21 October 1950.
- US Uniform Code of Military Justice, Chapter 47 of Title 10 of the Code of Laws of the United States of America (United States Code), Office of the Law Revision Counsel of the U.S. House of Representatives, 1983.
- US Authorization for Use of Military Force (AUMF), Public Law No. 107-40 (115 Stat. 224) of 2001.
- US Military Commission Order No. 1, 21 March 2002.
- US Detainee Treatment Act, Department of Defense Appropriations Act of 2006 (Title X, H.R. 2863), 2005.
A very important, related case is Rasul v. Bush (2004). This case marked the beginning of litigation by the Center for Constitutional Rights against the US' treatment of Guantanamo detainees and their procedural rights. In this case, the US Supreme Court ruled that US courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in the course of armed conflict and subsequently detained in Guantanamo Bay.
The litigation eventually resulted in the 2008 Boumediene v. Bush-ruling, where the Supreme Court found that Guantanamo detainees have a right to file habeas corpus petitions in order to review the lawfulness of their detention.
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- BBC, 'US Guantanamo Tribunals “Illegal”', BBC News, 29 June 2006;
- T. Grieve, 'What the Hamdan Decision Might Mean', Salon, 29 June 2006;
- NPR, 'Hamdan v. Rumsfeld: Legal Issues & Ramifications', 29 June 2006;
- NPR, 'Supreme Court Rules Against Bush on Guantanamo', 29 June 2006;
- J. O'Neil, 'US Supreme Court Rejects Guantanamo Tribunals', The New York Times, 29 June 2006;
- L. Greenhouse, 'Supreme Court Block Guantanamo Tribunals', The New York Times, 29 June 2006;
- C. Rosenberg, 'Detainee Stunned by Court Victory, The Seattle Times, 1 July 2006.
Social media links
- R. Alford, 'Supreme Court Holds Military Commissions Invalid', Opinio Juris, 29 June 2006;
- P. Spiro, 'Hamdan – Big but not that big', Opinio Juris, 29 June 2006;
- R. Alford, 'Geoffrey Corn on Hamdan v. Rumsfeld', Opinio Juris, 29 June 2006;
- P. Spiro, 'Hamdan: Okay, a Pretty Big Deal', Opinio Juris, 30 June 2006;
- J. Ku, 'So Maybe Hamdan is a Big Deal After All', Opinio Juris, 30 June 2006;
- R. Alford, 'Case of the Month: Hamdan v. Rumsfeld', Opinio Juris, 6 July 2006;
- J. Ku, 'How to Reverse Hamdan', Opinio Juris, 10 July 2006;
- J. Ku, 'Why Hamdan Is Not So Bad', Opinio Juris, 13 July 2006;
- K. Anderson, 'Hamdan, the Geneva Conventions, and Common Article Three', Kenneth Anderson’s Law of War and Just War Theory Blog, 12 July 2006.