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Hamdan v. Rumsfeld, Secretary of Defense et al.

Court Supreme Court, United States
Case number 05-184
Decision title Decision on Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit
Decision date 29 June 2006
  • Salim Ahmed Hamdan
  • Donald H. Rumsfeld et al
Other names
  • Hamdan I
Categories War crimes
Keywords civilian objects, common Article 3, destruction of property, international armed conflict, jurisdiction, violence to life
Other countries involved
  • Afghanistan
  • Cuba
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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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Procedural history

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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Related developments

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

  • 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?

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Specific legal rules and provisions

  • 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).

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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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Further analysis

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Instruments cited

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Related cases

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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Additional materials

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