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Thursday, June 29, 2006

Hamdan: Military Commissions Invalid

In Hamdan v. Rumsfeld, No. 05-184 (June 29, 2006), the Supreme Court held that the military commission convened by the President to try Hamdan lack the power to proceed because it structure and procedure violates both the Uniform Code of Military Justice (UCMJ) and the Geneva Convention.
The Court first rejected the government’s argument that the recently enacted Detainee Treatment Act deprived it of jurisdiction to decide the case, finding this position unsupported by the language of the law. The Court also rejected the argument that the Court should abstain, noting that this case did not involve a court martial against a member of the Armed Forces.
Turning to the validity of the commission, the Court noted that it was not expressly authorized by any congressional Act. The Court further noted that the procedure would exclude the accused and his civilian counsel from ever learning what evidence was presented against him. Further, the rules allow admission of any evidence, as long as the presiding officer concludes that the evidence is "probative." These rules were not in conformity with the UCMJ, and the Court found no justification from deviating from the ordinary court-martial rules. The Court noted in particular the jettisoning of the basic right to counsel.
The rules also violate the Geneva Conventions. The Court rejected the view that the Geneva Convention did not apply to the fight against Al Queda, noting that Article 3 covered this situation. This provisions requires trials before a "regularly constituted court." This requires at least of barest of trial protections recognized by international law.
The Court noted that it did not address the government’s power to detain Hamdan "for the duration" of hostilities.