In January 2006, CJA and eleven other human rights organizations submitted an amicus brief to the U.S. Supreme Court in the case Hamdan v. Rumsfeld.
Background
The appellant, Yemeni citizen Salim Ahmed Hamdan, was formerly employed as Osama bin Ladin’s driver. In November 2001, Mr. Hamdan was captured during the U.S. invasion of Afghanistan and was subsequently detained at Guantánamo Bay and charged with providing material support for terrorism. In August 2004, a Combatant Status Review Tribunal deemed Mr. Hamdan an “enemy combatant”—a category not recognized in international humanitarian law—and Mr. Hamdan went to trial before a military commission. However, a November 2004 federal district court ruling that the military commissions were unconstitutional cut short the proceedings. Notwithstanding this ruling, the U.S. government continued to detain Mr. Hamdan as an “enemy combatant” and opted to proceed with the military commissions.
Habeas Petition: District Court of D.C.
Mr. Hamdan petitioned for a writ of habeas corpus with the U.S. District Court for the District of Columbia, arguing that the military commissions violated Common Article 3 of the Geneva Conventions and the U.S. Uniform Code of Military Justice (UCMJ). The government, in turn, argued that since Mr. Hamdan had been designated an enemy combatant by the president, he did not enjoy the protected status of a prisoner of war under international humanitarian law. The government also claimed that the president had the authority to override the procedural limits stated in the UCMJ.
In 2004, the district court granted Mr. Hamdan’s petition and ruled that the Geneva Conventions were in force, since “there [was] nothing in [the] record to suggest that a competent tribunal had determined that Mr. Hamdan is not a prisoner-of-war under the Geneva Conventions.” The Court specifically observed that the president is not a “competent tribunal.”
Appeal: D.C. Circuit Court
Then, in 2005, the U. S. Court of Appeals for the D.C. Circuit reversed the lower court’s decision, reasoning that: (i) the Geneva Conventions are unenforceable through federal courts; (ii) the president constitutes a competent authority for determining the prisoner-of-war status of a detainee; and (iii) the president has the authority to approve military commission procedures that do not comply with the UCMJ. This last assertion, it is important to note, would allow the military commissions to consider evidence obtained through coercion and even torture.
United States Supreme Court
Mr. Hamdan appealed the decision to the U.S. Supreme Court, which granted cert on November 7, 2005. CJA’s amicus brief in support of Mr. Hamdan pointed out that the military commissions at Guantánamo Bay—as authorized by the President—permit the use of evidence procured through torture and abusive conditions. This standard of evidence would violate the Geneva Conventions and the Convention against Torture, as well as the 5th and 14th Amendments’ Due Process protections. The brief urged the Court not to permit a military commission to proceed “without clarifying that evidence obtained by unlawful coercion or torture is inadmissible.”
In June 2006, the Supreme Court reversed the decision of the circuit court and held that the military commissions violated Article 3 of the Geneva Conventions and the UCMJ. The Court also held that, under the Supremacy Clause of the Constitution, the supreme law of the land consists of treaties as well as federal statutes and the Constitution itself. Thus, the Geneva Conventions are enforceable in the federal courts. The Court’s decision relied on many of the arguments put forth in our brief.
Outcome
Before the Supreme Court issued its opinion, Congress passed the 2005 Detainee Treatment Act (DTA), which stripped all courts of jurisdiction to hear habeas petitions or any other action against the government and its agents relating to the detention of a detainee at Guantánamo. To reinforce the DTA, Congress later passed the Military Commissions Act of 2006 (MCA) which added a retroactive component to the DTA and stripped federal habeas jurisdiction from all pending Guantánamo cases. This legislation effectively eviscerated the Supreme Court’s ruling in Hamdan.
On August 6, 2008, a jury of six military officers convicted Salim Ahmed Hamdan of providing material support for terrorism, but acquitted him on the charge of conspiracy and three of the eight counts of material support.
