Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

In Hamdan v. Rumsfeld,1 the Supreme Court reviewed the validity of military tribunals established pursuant to President George W. Bush’s military order2 to try suspected terrorists for violations of the law of war. The petitioner Hamdan was charged with conspiracy to commit a violation of the law of war. The Supreme Court declined the government’s invitation to invoke the doctrine established in Schlesinger v. Councilman3 to abstain from reviewing the merits of the case until the military commission had issued a verdict.4 The Court found the military commissions unlawful, holding that the tribunals as convened did not comply with the Uniform Code of Military Justice (UCMJ)5 or the law of war, as incorporated in the UCMJ and embodied in the 1949 Geneva Conventions, which, despite a presidential determination to the contrary,6 the Court held applicable to the armed conflict with Al Qaeda. The Court concluded that, at a minimum, Common Article 3 of the Geneva Conventions applies to persons captured in the conflict with Al Qaeda, according to them a minimum baseline of protections, including protection from the “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” 7 The Court held that military commissions were not “regularly constituted” because they deviated too far from the rules that apply to courts-martial, without a satisfactory explanation of the need for departing from such rules.8 In particular, the Court noted that the commission rules allowing the exclusion of the defendant from attending portions of his trial or hearing some of the evidence against him deviated substantially from court-martial procedures.9

A four-Justice plurality of the Court also recognized that for an act to be triable under the common law of war, the precedent for it being treated as an offense must be “plain and unambiguous.” 10 After examining the history of military commission practice in the United States and internationally, the plurality further concluded that conspiracy to violate the law of war was not in itself a crime under the common law of war or the UCMJ.

Footnotes

1

Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

2

Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57831 (Nov. 13, 2001).

3

Schlesinger v. Councilman, 420 U.S. 738, 740 (1975), ( “[T]he balance of factors governing exercise of equitable jurisdiction by federal courts normally weighs against intervention, by injunction or otherwise, in pending court-martial proceedings.” ).

4

Hamdan, 548 U.S. at 587 (holding that comity considerations weighed against abstention where concerns about military discipline do not apply and the petitioner did not have the opportunity to appeal any verdict the military commission may render to an independent appellate body).

5

10 U.S.C. §§ 801–946a.

6

White House Memorandum, Humane Treatment of Taliban and al Qaeda Detainees ¶ 2 (Feb. 7, 2002), https://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf.

7

Hamdan, 548 U.S. at 629.

8

Id. at 632.

9

Id. at 634.

10

Id. at 602 (2006) (Stevens, J., plurality opinion, joined by Souter, J., Ginsburg, J., and Breyer, J.).