Executive Power - Military Commissions - D.C. Circuit Upholds the Constitutionality of Military Commissions for Guantanamo Bay Detainees

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EXECUTIVE POWER--MILITARY COMMISSIONS--D.C. CIRCUIT UPHOLDS THE CONSTITUTIONALITY OF MILITARY COMMISSIONS FOR GUANTANAMO BAY DETAINEES.--Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir.), cert. granted, 126 S. Ct. 622 (2005).

The ongoing conflict with al Qaeda has brought to the forefront a divide among judges and legal scholars on whether the Geneva Conventions are self-executing. (1) The answer to another question, however, may render that debate irrelevant with regard to the current conflict: in its engagement with al Qaeda, is the United States bound by Common Article 3 of the Geneva Conventions, which applies to "armed conflict[s] not of an international character"? (2) Recently, in Hamdan v. Rumsfeld, (3) the D.C. Circuit answered that question in the negative, holding that the conflict does not trigger the protections of Common Article 3 because it fails to qualify as a conflict "not of an international character." (4) Although the court based its interpretation primarily on deference to presidential interpretation, an independent analysis of the treaty leads to the same conclusion, bolstering the court's position. Such a conclusion avoids premature ossification of current practice as customary international law, thereby preserving flexibility in the face of great unpredictability.

Salim Ahmed Hamdan was allegedly Osama bin Laden's personal driver from 1996 until November 2001, when Afghan militia forces captured him in Afghanistan and turned him over to the American military. (5) The military transferred him to Guantanamo Bay, and in July 2003, President Bush determined there was reason to believe that Hamdan had participated in terrorism against the United States and thus was subject to the Military Order concerning the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. (6) Accordingly, Hamdan was placed in solitary confinement awaiting trial before a military commission, (7) which, unlike trial by court-martial, permits the limited exclusion of the accused from certain sessions of his trial when there is a contravening national interest. (8) In April 2004, Hamdan filed a petition for habeas corpus, (9) and pursuant to the Supreme Court's decision in Hamdi v. Rumsfeld, (10) a Combatant Status Review Tribunal convened and formally affirmed Hamdan's status as an enemy combatant, warranting his continued detention. (11)

The district court granted Hamdan's petition in part. (12) The court, citing Hamdi, (13) upheld Hamdan's continued detention but enjoined further proceedings by a military commission primarily on two grounds. First, the court held that the military commission violated the Third Geneva Convention, (14) which has been partly implemented by Army Regulation 190-8 (15) and which states that persons with uncertain eligibility for prisoner-of-war status "shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." (16) The court concluded that because Hamdan contested his status and a competent tribunal had not ruled on the matter, Hamdan was entitled to the same rights and procedures due prisoners of war, including trial by court-martial. (17) Second, the court held that the military commission procedures were unlawful even if Hamdan did not qualify as a prisoner of war because they permitted the exclusion of Hamdan from certain sessions of his trial (18) contrary to the requirements of the Uniform Code of Military Justice (19) (UCMJ).

The D.C. Circuit reversed. Writing for the panel, Judge Ran-dolph (20) ruled that Hamdan's trial by military commission was lawful. The court first concluded that the President had not violated the separation of powers inherent in the Constitution when he established the military commission because Congress had authorized it, partly through a joint resolution adopted in the wake of the September 11 attacks. (21) Turning to Hamdan's claims under the Third Geneva Convention, the court held that Hamdan could not enforce the treaty in federal court. …