Hamdan v. Rumsfeld

Hamdan v Rumsfeld
126 S.Ct. 622 (2006)

The question of weather the President has the authoirty to create and regulate military commissions has been controversial ever since he  relseased  Military Commission Order No. 1 establishing the commissions in 2001. He also claimed that the Geneva Convention did not apply to Al-Qaeda on any level. The assertion was that becasue Salim Ahamed Hamdan was a terrorist he was not even entitlied to the most basic prtections afforded by military commissions properly constituted by Congress and that he had the power to control this aspect of the battle against terrorism. The President claimed the authority to create the military commissions under SJ Res. 23 Authorization to Use Military Force, which was passed in 2001.

Enter Lt. Cmdr. Charles D. Swift, who legally challenged the commissions because proper procedure, as stated in the UCMJ (839 Art. 39), and basic protections afforded by Article 3 of the Geneva Convention were being violated. The violation was that Mr. Hamdan was not present at the proceedings.

Lt. Cmdr. Swift faced pressure to make a plea deal for his client and he refused; even testifying to the Senate Judiciary Committee about the rules of the commission tying his hands and not allowing him to properly defend his client. Mr. Hamden was alleged to have been the driver for Osama Bin Laden and therefore had been charged with conspiracy by the Department of Defense.  However, Lt. Cmdr. Swift could not provide an effective defense because he was denied access to evidence becasue the information was classified. He also was not allowed to call witnesses that could have possibly exonerated his client.

Lt. Cmdr. Swift challenged these policies to the Supreme Court. Hamdan v. Rumsfeld was granted certioari on 7 Nov. 2005. The case was decided (PDF) on 26 June 2006.

The decision was a 5-3 split in which Chief Justice John G. Roberts recused himself because he had been on the panel that decided the case at the Circuit level. A plurality of the Court said that the military commissions created by Military Commission Order No. 1 were unconstitutional becasue Congress had not authorized them. These same commissions were also illegal becasue they violated the UCMJ and Article 3 of the Geneva Convention.

The decision merely instructs the President to go to Congress and ask them to authorize the use of military commissions to try these suspects. There was not a wholesale elimination of commissions, just the particular commissions that were being used in the case of Mr. Hamdan and those similiarly situated.

I ask those of my friends that disagree with the decision to remeber that we belive in justice and just becasue these people don't doesn't mean that we should utilize trial methods that are less than just.