CONTENTS I Background II The Decision A The Detainee Treatment Act of 2005 B Authorisation to Convene the Military Commission 1 'Sanction of Congress'. 2 'Controlling Necessity'. C The Commission's Structure and Procedures 1 Arguments of the Parties 2 Procedural Parity between Courts-Martial and Military Commissions 3 Common Article 3 of the Geneva Conventions III Impact of the Decision A Separation of Powers B Has Anything Changed on the Ground at Guantanamo? C Restoring the Balance between Authority and Obligation under the Law of War IV Where to from Here? A Giving the Commissions the Rubber-Stamp of Approval B Using the Court-Martial Model C Back Where We Started V A Fork in the Road
We witnessed an extraordinary event three weeks ago in the Supreme Court, where a man with a fourth-grade Yemeni education accused of conspiring with one of the world's most evil men sued the President in the nation's highest court--and won.
--Professor Neal Katyal (1)
The United States Congress responded to the terrorist attacks of September 11, 2001 by adopting a joint resolution which provided that the President
is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism ... (2)
Acting pursuant to the Authorisation for Use of Military Force ('AUMF'), and having determined that the Taliban regime in Afghanistan had harboured and supported al Qaeda, the terrorist organisation responsible for the attacks, US President George W Bush ordered the US Armed Forces to invade Afghanistan. In the ensuing hostilities, hundreds of individuals, including Yemeni national Salim Ahmed Hamdan, were captured and detained by Coalition Forces.
On 13 November 2001, while the US Armed Forces were still actively involved in Afghanistan, a Presidential order designed to regulate the detention, treatment and trial of individuals detained in the war against terrorism was issued. (3) In that Military Order, the President made a number of findings, including that:
* 'International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces';
* for the effective conduct of military operations and prevention of terrorist attacks, 'it is necessary for individuals subject to this order ... to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals';
* given the danger to the safety of the US and the nature of international terrorism, it is 'not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts'. (4)
Section 3 of the Military Order provides that any 'individual subject to this order' shall be 'detained at an appropriate location designated by the Secretary of Defense outside or within the United States'. (5) For more than 700 individuals, this 'appropriate location' would be the US Naval Base at Guantanamo Bay, Cuba. Having been detained by Afghan militia and then transferred to US forces in November 2001, Hamdan was transported to the Guantanamo Naval Base in June 2002. Over a year later, on 3 July 2003, President Bush announced his determination that Hamdan and five other detainees at Guantanamo Bay were subject to his Military Order, and were therefore eligible for trial by military commission. …