The Supreme Court and the War on Terrorism

Proceedings of the Annual Meeting-American Society of International Law, Annual 2007 | Go to article overview

The Supreme Court and the War on Terrorism

The panel was convened at 1:00 p.m. on Friday, March 30, 2007, by its moderator, Elizabeth Rindskopf Parker of the University of the Pacific McGeorge School of Law, who introduced the panelists: John Bellinger III of the U.S. Department of State; Sean Murphy of George Washington University School of Law; Jide Nzelibe of Northwestern University Law School; Dinah PoKempner of Human Rights Watch; and Franklin Berman of Essex Court Chambers. *


By Sean D. Murphy ([dagger])

I have been asked to "lay the table" for this panel by sketching out the basic contours of the Supreme Court's decision in Hamdan v. Rumsfeld, the ensuing enactment of the Military Commissions Act of 2006, and other recent developments.

As is well known, in the aftermath of the terrorist attacks of September 11, 2001, the United States launched a military campaign in Afghanistan against the terrorist network Al Qaeda and the de facto Afghani government of the Taliban. In the course of doing so, the United States in Afghanistan, eastern Pakistan, and elsewhere took into custody about 775 persons who were transferred to detention facilities at the U.S. naval base at Guantanamo Bay, Cuba.

As of March 2007, the Department of Defense reported that about 390 of those detainees had been released or transferred to the custody of their home country. Of the approximately 385 detainees remaining at Guantanamo, about 80 had been designated for release or transfer, pending further discussions with their home countries or pending resolution of litigation in U.S. courts. Another 235 persons remained in indefinite detention, without any expectation of either being released or prosecuted. Reportedly, some 70 to 75 persons may be placed before military commissions for trial, though at present (March 30, 2007) only four persons are indicted as a part of the current military commission process.

When these individuals were first taken into custody, the U.S. government immediately contemplated prosecuting some of them for terrorist acts. Three basic options existed for doing so: prosecution before U.S. civilian courts; prosecution before U.S. courts-martial operating under the relevant U.S. statute (the Uniform Code of Military Justice or UCMJ); (1) or prosecution before a U.S. military commission, meaning a tribunal established under the military authority of the President. By military order of November 2001, (2) President Bush chose the third option. That military order, along with a series of Department of Defense "instructions," established the framework for creation of military commissions to try those detainees selected to be prosecuted.

Salim Ahmed Hamdan is a Yemeni national who was detained in Afghanistan in November 2001. He was taken to Guantanamo and eventually charged with one count of conspiracy to commit an offense triable by a military commission, based on his connections with and support for Al Qaeda. Hamdan filed suit in U.S. federal court for a writ of habeas corpus, in part challenging the legality of the President's military commissions. In June 2006, the Supreme Court decided in Hamdan v. Rumsfeld (3) that the military commission convened to try Hamdan lacked the power to proceed because its structure and procedures violated both the UCMJ and the 1949 Geneva Conventions. (4)

According to the Court, the President does have a constitutional power to convene military commissions, but that power is shared with Congress, who may impose limitations on the exercise of the power. Although the UCMJ largely regulates the conduct of courts marital, it also imposes two important limitations on the President's power to convene military commissions. First, the military commissions should not deviate unnecessarily from the procedures by which courts martial operate; military commission procedures must be uniform with those of courts martial insofar as practical. …

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