Post 9/11 Criminal Defense Law, Presidential Powers, and Enemy Combatants in the USA

The Debate over Mr. Hamdan:
Sources of Law and the Interplay of Our Three Branches

By Ali Ebrahimzadeh, Spring, 2006.

On September 11, 2001, it is generally understood that our nation was attacked by Al Qaeda, a stateless militant organization. One week later, on September 18, 2001, Congress issued the Authorization for Use of Military Force (“AUMF”), which empowered our nation’s President 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 against the United States by such nations, organizations or persons.”[1]

The AUMF is not an explicit Congressional declaration of war. Thus, the President’s powers are limited by the language of the AUMF, itself. Although the AUMF authorizes the President to “use all necessary and appropriate force,” it is arguable whether it grants him the right to establish military tribunals, and to define their jurisdiction, procedures, and reviewability.

These and other questions became relevant as the USA’s military activities in Afghanistan escalated, and at times resulted in the capture of alleged enemies. Hundreds of persons such as Misters Hamdi, Rasul, and Hamdan have been captured by the US military and imprisoned at the USA’s military base in Guantanamo Bay, Cuba. Through a handful of potent cases brought before the United States Supreme Court, these detainees have challenged the terms and fact of their incarceration.

On June 28, 2004, in the Supreme Court’s decision in Hamdi v. Rumsfeld[2], the Court held that “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” That same day, in its ruling in the case of Rasul v. Bush[3], the Supreme Court held that “United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.” But the Court narrowed its holding only to the issue of federal court jurisdiction, stating “whether and what further proceedings may become necessary after respondents make their response to the merits of petitioners’ claims are matters that we need not address now.”[4]

Presently, in the case of Hamdan v. Rumsfeld,[5] which was granted certiorari on November 7, 2005, the United States Supreme Court must deliberate upon the specific procedural rights that the detainees possess as they stand before such “neutral decision-makers,” and whether such decision-makers have jurisdiction over the detainees.

Further, due to Congress’s recent passing of the Detainee Treatment Act of 2005 (“DTA”), which arguably strips the US Supreme Court of jurisdiction over the cases of the non-citizen Guantanamo detainees, the pending case of Hamdan v. Rumsfeld is potentially the most momentous and pivotal case regarding the doctrine of separation of powers as it relates to the interplay of all three branches of our government. In Hamdan, the Supreme Court will determine not only the rights of such detainees vis-à-vis the Executive’s order regarding tribunal’s procedures, but also it will rule upon the validity and effect of Congress’s DTA on Mr. Hamdan’s case and on the Supreme Court’s very own powers vis-à-vis the Legislature and the Executive.

Despite the maelstrom of controversial legal and military history swirling throughout the Hamdan case, this debate finds its most discrete origins in the President’s historic decision to create military tribunals to adjudicate the cases of enemy combatants captured by the US military in its war against Al-Qaeda. Specifically, on November 13, 2001, the President established the first military commissions since World War II by way of an Executive Order regarding the “Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism.”[6]

Captain Robert Peal of the US Marine Corps adeptly summarizes the direct impact of the order:

“. . . non-citizens captured either domestically or abroad would be transferred immediately to the control of the Secretary of Defense to be tried by a military tribunal for violations of the laws of war and other applicable laws. The order has broad application, applying to individuals if there is reason to believe that such individual, at the relevant times, (i) is or was a member of the organization known as Al Qaeda; (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more individuals described [above]. . . . Individuals who meet these criteria are designated “enemy combatants” and will be detained “until hostilities cease.””[7]

President Bush proclaimed the right to execute this 2001 order under the implicit powers purportedly vested in him by the AUMF, by the US Constitution under the “Commander-in-Chief” clause (as it has been repeatedly interpreted by the Supreme Court), and by Sections 821 and 836 of the Uniform Code of Military Justice (“UCMJ”), which establishes the structure, powers, and procedures of the USA’s courts-martial.[8]

Three years later, based on these very same proclaimed rights, and immediately responding to the Supreme Court’s decision in Rasul, on July 7, 2004, President Bush established the Combatant Status Review Tribunals (“CSRT”). In addition to the CSRT’s and the Military Commissions, the President then created a third tribunal body: the Administrative Review Boards (“ARB”).[9] Therefore, presently, there are three separate types of tribunals that have been created by the President to bring a measure of justice to alleged enemy combatants.

Outlining the interplay of these three adjudicatory bodies, Captain Peal notes that “the CSRT’s employ the most debated procedures.[10] . . . the law of armed conflict arguably allows indefinite detention to protect U.S. forces by preventing enemies from returning to the fight before the cessation of hostilities, or, alternatively, by detaining civilians if releasing them would “be prejudicial to the security of such State.” The ARB serves to mitigate the severity of the CSRT process by annually determining whether detention is still justified, even if hostilities have not ceased.”[11]

Challenging the President’s legal basis for the creation of such military tribunals and lengthy detentions, Mr. Hamdan points out that the AUMF, the UCMJ, and the US Constitution are silent on the issue of a President’s powers to create military tribunals, and that only Congress has the power to establish the courts of the USA. In addition to referring to Article 1, Section 8 of the US Constitution,[12] Mr. Hamdan cites Application of Yamashita for this proposition, as it relates to the President’s lack of power to single-handedly create military tribunals.[13] In the facts of that case, it was clear that Congress had vested the President, by way of a formal declaration of war, with the power to create such tribunals to try enemy combatants.[14]

However, nowhere in Yamashita does the Court clarify whether the President has or has not the power to create such tribunals, sua sponte, and outside of a formal Declaration of War. The Court referred to this question in the earlier case of Ex Parte Quirin[15], but refused to entertain it. There, the Court stated, “it is unnecessary for present purposes to determine to what extent the President as Commander-in-Chief has constitutional power to create military tribunals without the support of Congressional legislation.”[16] Yet, it remains upon such arguably inapposite cases that the government, too, lays its foundation.

Hamdan’s best supporting precedent is Ex parte Milligan,[17] in which the Court states clearly that the President cannot create military tribunals on his own. The government distinguishes Milligan on its facts, pointing out that Mr. Milligan was a civilian and a US citizen captured on US soil, whereas Hamdan is an enemy combatant who was captured on foreign soil, similar to Misters Quirin and Hamdi.[18]

For its part, the government holds tightly to its argument that the President received Congressional authority to create such tribunals and establish their procedures through the AUMF and the UCMJ, in addition to the fact that the President possesses inherent powers to do so as Commander-in-Chief of the Armed Forces.[19] The government cites examples of the Presidential use of such power during the Revolutionary War, the Mexican-American War, and the Civil War, and concludes that the language of Sections 821 and 836 of the UCMJ and that the AUMF implicitly acknowledged such inherent powers.[20]

Assuming the validity of the tribunals, the government then cites Yamashita for the principle that the final judgments of properly constituted military tribunals are not reviewable by federal courts when Congress has explicitly so stated.[21] Moreover, the government argues that Congress, here, has so stated: On December 30, 2005, the President signed the Detainee Treatment Act[22], shortly after it was passed by both the Senate and the House of Representatives. According to the government, the DTA removes from the US Supreme Court jurisdiction over the case of Hamdan v. Rumsfeld “and similar actions brought on behalf of Guantanamo detainees.”[23] The government’s brief states that

“Section 1005(e)(1) of that Act amends the habeas statute to provide that “no court, justice, or judge shall have jurisdiction to hear or consider” any action filed by or on behalf of an alien held in military custody at Guantanamo Bay for a writ of habeas corpus or any other form of relief, except pursuant to exclusive statutory review procedures established by the Act.”[24]

Further, the government notes that Section 1005(e)(2) and (3) of the DTA create in the United States Court of Appeals for the District of Columbia Circuit exclusive jurisdiction to review the CSRT’s determinations of the “enemy combatant” status of detainees at the USA’s detention facility at Guantanamo Bay, and exclusive jurisdiction to review the final decisions of the Military Commissions created pursuant to the August 31, 2005 Executive Order. Finally, Section 1005 (h) of the DTA states:

this section shall take effect on the date of the enactment of this Act [December 30, 2005]; [and] Paragraphs (2) and (3) of subsection (e) [above] shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.

Therefore, the government argues that since Mr. Hamdan’s claim was pending on the date of the Act’s enactment, the DTA applies to it; and that Mr. Hamdan should be tried by the military tribunal, whose final judgment may only be reviewed by the US Court of Appeals for the District of Columbia. Congress has spoken, and the Supreme Court should not upset the balance of powers doctrine by taking jurisdiction over Mr. Hamdan’s case, argues the government.

Petitioner acknowledges that the DTA only permits federal court review only by the DC Circuit when a military tribunal or CSRT enters a final decision in the case of a detainee before it, such as Mr. Hamdan, himself. The glaring problem with this, Petitioner decries, is that if no final decision is ever entered, the detainee remains imprisoned “until hostilities cease,” and without any remedy-at-law.[25] If, however, a final decision is entered, the DTA allows a federal court to review only whether the tribunal’s procedures conform to the Department of Defense Order of August 31, 2005, and whether such procedures are Constitutional.[26] Most importantly, however, the DTA does not allow the detainee to attack the constitutionality of the tribunals themselves.

In Petitioner’s Opposition to Respondent’s Motion to Dismiss[27], Mr. Hamdan attacks the government’s argument for abstention, indicating that the DTA strips federal courts of jurisdiction previous to a tribunal’s final decision only regarding pending and future motions made under DTA 1005(e)(2) and (3), and not under 1005(e)(1) – the section regarding habeas jurisdiction. Since Congress specifically applied 1005(e)(2) and (3) to pending federal cases, but did not do so to 1005(e)(1); and since the prior, deleted version of 1005(e)(1) contained language which would have applied it to pending cases, as well, Petitioner argues that Congress did not intend the DTA to strip the Court of its jurisdiction over pending habeas cases, and thus that the Court should not abstain from exercising jurisdiction over such cases. Further, the DTA does not affect 28 U.S.C. 1254, which in and of itself would grant the Supreme Court appellate jurisdiction over Mr. Hamdan’s case.

Petitioner argues that the government’s interpretation of the DTA would suspend the writ of habeas corpus – a grave act of last resort which only occurred once during our Nation’s history, that being during the Civil War. Such an action would be unconstitutional, unless our Nation were facing the most dire threats to its security during the most disastrous of times, and unless Congress were to choose to respond to such an extreme threat by explicitly using its powers under the Suspension Clause.[28]

Additionally, Mr. Hamdan attacks the government’s interpretation of the DTA upon the basis that its reading would violate his rights under the Fifth Amendment’s Equal Protection Clause. The DTA applies only to non-citizen detainees at the USA’s detention center in Guantanamo Bay, Cuba. Thus, if the President were to desire to cut off any other non-citizen prisoner’s rights to federal court review, he could arbitrarily and single-handedly elect to move such prisoners to the Guantanamo installation, argues the Petitioner.

Finally, the two sides of this debate are also at odds regarding the application of the First and Third Geneva Conventions Relative to the Treatment of Prisoners of War (“GPW”), to which both the USA and Afghanistan are signatories.

Mr. Hamdan was captured on the “field of battle” in Afghanistan – a nation which he was fleeing with his wife and children in order to return to his native Yemen. He has since been charged by the USA with the crime of “conspiracy” for his alleged role as the professional driver of Osama Bin Laden.

Based on these facts, the Petitioner argues that the GPW applies to him, and notes that the GPW requires that until a “competent tribunal” declares Mr. Hamdan to not be a POW, he is owed the GPW’s protections. According to Petitioner’s interpretation of Article 5 of the GPW, Mr. Hamdan must be tried before a US court-martial, since – by order of the Uniform Code of Military Justice of the USA – that is the same venue in which cases of American servicemen would be adjudicated.

Moreover, Article 3 of the GPW prohibits

“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” in “the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.” . . . . . a “court is regularly constituted if it has been established and organised in accordance with the laws and procedures already in force in a country.” Int’l Cte. Red Cross, 1 Customary Int’l Humanitarian Law 355 (2005). The “court must be able to perform its functions independently of any other branch of the government, especially the executive.” Id. at 356.[29]

Thus, Petitioner states that the government is violating the GPW by trying Mr. Hamdan and others similarly situated before a military tribunal with procedures that curtail rights that would otherwise be afforded to such defendants under the UCMJ, such as the right to have only non-hearsay evidence brought against them, and the right to be present during the entirety of their own trials.[30]

Petitioner also argues that military commissions cannot try defendants for crimes which are not defined as such under the “laws of war.” Specifically, Mr. Hamdan’s alleged crime of conspiracy is not a crime that falls under the auspices of the laws of war.[31] In retort, the government argues that “conspiracy” is indeed a war crime that has historically been punished as such by the USA, primarily citing Quirin as proof of this fact.[32]

Moreover, the government argues that the GPW is irrelevant to this case, as it does not create any judicially enforceable individual rights, according to Johnson v. Eisentrager.[33] Also, the government rejects the Petitioner’s argument that the habeas statute itself renders the GPW enforceable, citing much case law that notes that the habeas statute confers only jurisdictional rights, and not substantive ones.[34] At any rate, since Al Qaeda is not a High Contracting Party of the GPW, Mr. Hamdan – a member of Al Qaeda – is not protected by that treaty. Even if, as Petitioner suggests, the GPW’s protections were determined by the place of capture of Mr. Hamdan, rather than by the organization with which he is affiliated, the government insists that Mr. Hamdan is not an Article 5 POW, as fairly adjudicated by the CSRT.

The President, purportedly under his inherent powers as Commander-in-Chief, has also declared that Mr. Hamdan is not a POW, as defined by the GPW, and thus is not protected by it.[35] The government asserts that Mr. Hamdan is an “enemy combatant,” and points to the fact that the CSRT denied Mr. Hamdan’s claim that he is a non-combatant. As an “enemy combatant,” the government states that all Mr. Hamdan is due under Rasul and Hamdi is a hearing before a military tribunal, and that is exactly what he has been provided. In creating these tribunals, the President argues that he has duly followed in the footsteps of American Presidents before him, and that his relevant decisions have been approved by Congress via the AUMF and the DTA. These military commissions satisfy the requirements of Common Article 3 of the GPW, according to the President’s interpretation of that international treaty.

On March 28, 2006, the Supreme Court heard oral arguments from the Petitioner and Respondent in the case of Hamdan v. Rumsfeld.[36] The arguments, as outlined above, have been echoed by the amici briefs filed on behalf of both camps, with the number of amici for Petitioner far outnumbering those for the government. While the arguments are strong on both sides, making any predictions in the outcome of this case nearly impossible, it seems clear that if the Court votes in favor of the government, the rights of detainees as well as the powers of the Judiciary to balance those of the Executive during times of national crisis, and not just during times of war, will be extremely curtailed.[37]

ENDNOTES


[1] PL 107-40, 2001 SJRes 23.

[2] 542 U.S. 507, 533 (2004).

[3] 542 U.S. 466 (2004).

[4] Id. at 485.

[5] 126 S.Ct. 622 (2005). The government adeptly summarizes the factual and procedural history of the Hamdan case in its Brief for Respondents, 2006 WL 460875 at 3: “2. a. In November 2001, petitioner was captured in Afghanistan during the course of active hostilities in that country and transferred to the control of the United States armed forces. After an extensive screening process, petitioner was determined to be an enemy combatant and transferred to the U.S. Naval Station at Guantanamo Bay, Cuba, for detention. b. In July 2003, the President designated petitioner as an individual subject to the Military Order and eligible for trial before a military commission. The President found “that there is reason to believe that [petitioner] was a member of al Qaeda or was otherwise involved in terrorism directed against the United States.” Pet. App. 1a-2a. On July 13, 2004, the Appointing Authority for Military Commissions approved and referred to a military commission a charge alleging that petitioner conspired with Osama bin Laden, Ayman al Zawahiri, and other members and associates of al Qaeda to commit the offenses of “attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; and terrorism.” Id. at 65a. The charge alleges that petitioner served as bin Laden’s bodyguard and personal driver, and that, in that capacity, he delivered weapons and ammunition to al Qaeda members and associates, transported weapons from Taliban warehouses to the head of al Qaeda’s security committee, and drove bin Laden and other high-ranking al Qaeda operatives in convoys with armed bodyguards. Id. at 65a-67a. The charge also alleges that petitioner was aware during this period that bin Laden – who issued a fatwa in February 1998 under the banner of “International Islamic Front for Jihad on the Jews and Crusaders” commanding all able Muslims to kill Americans wherever they may be found – had launched terrorist attacks against American citizens and property, including the September 11 attacks. Pet. App. 64a-65a. Petitioner received terrorist training himself, learning to use machine guns, rifles, and handguns at an al Qaeda training camp in Afghanistan. Id. at 67a. . . . c. In October 2004, petitioner was afforded the opportunity to contest his status as an enemy combatant before a Combatant Status Review Tribunal (CSRT) composed of three neutral officers. On October 3, 2004, after considering unclassified and classified exhibits, and petitioner’s sworn affidavit and unsworn testimony at the hearing, the CSRT issued a decision confirming that petitioner was an enemy combatant who was “either a member of or affiliated with Al Qaeda,” and that he was therefore subject to continued detention. Pet. App. 2a, 31a. 3. Petitioner filed a petition for habeas corpus or mandamus in the District Court for the Western District of Washington. He sought to enjoin enforcement of the Military Order on the ground that trial before a military commission rather than a court-martial would be unconstitutional and would violate the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 801 et seq., and the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (Geneva Convention, 1949 Convention, or Convention). J.A. 37-65. While petitioner acknowledged that he worked for bin Laden for many years before his capture, J.A. 50, he alleged that he had not knowingly participated in terrorist attacks against the United States, J.A. 46, 51. The district court transferred the case to the District Court for the District of Columbia. J.A. 143-150. On November 8, 2004, one month before petitioner’s scheduled trial date, J.A. 182, the district court rejected the government’s argument that it should abstain from interfering with the impending trial, and enjoined the military commission proceedings on the ground that the trial would violate Article 5 of the Geneva Convention and Article 39 of the UCMJ, 10 U.S.C. 839. Pet. App. 20a-49a. 4. The court of appeals reversed. Pet. App. 1a-18a. The court declined to abstain but rejected petitioner’s claims on the merits. First, the court held that Congress had authorized petitioner’s military commission through the AUMF and Articles 21 and 36 of the UCMJ, 10 U.S.C. 821, 836. Pet. App. 4a-7a. Next, the court rejected petitioner’s argument based on the Geneva Convention. It explained that the Geneva Convention did not create judicially enforceable rights, but that, even if it did, “the Convention does not apply to al Qaeda and its members.” Id. at 11a. The court further noted that petitioner ” does not purport to be a member of a group” that would qualify for prisoner-of-war (POW) status under Article 4 of the Convention, and that, in any event, petitioner could raise such a claim “before the military commission.” Ibid. The court also rejected petitioner’s reliance on Article 3 of the Convention. Id. at 12a. The court explained that the President had determined that this provision was inapplicable to the conflict with al Qaeda, and concluded that the President’s determination was entitled to respect. Id. at 13a. Finally, the court rejected petitioner’s argument that he was entitled to the same procedures established by the UCMJ for courts-martial, reasoning that the UCMJ itself “takes care to distinguish between ‘courts-martial’ and ‘military commissions.’ ” Id. at 14a.”

[6] 66 Fed. Reg. 57,833.

[7] Peal, Robert. “Combatant Status Review Tribunals and the Unique Nature of the War on Terror,” 58 VNLR 1629, 1640, 1641. October, 2005.

[8] 10 U.S.C. 801 et seq. Section 821 of the UCMJ states simply that courts-martial have concurrent jurisdiction with military commissions. Section 836(a) of the UCMJ states, “Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.” The government concedes that while the explicit language of these sections may not support their argument, these sections clearly implicate the President’s power to create military tribunals. Petitioner disagrees that any such implications exist in the UCMJ, and further argues, citing Yamashita, that Congress must explicitly grant such Presidential powers.

[9] Memorandum from Paul Wolfowitz, Deputy Secretary of Defense, to the Secretary of the Navy (July 7, 2004) (“Order Establishing CSRT”), at www.defenselink.mil/news/Jul2004/d20040707review.pdf.

[10] Peal, Robert. “Combatant Status Review Tribunals and the Unique Nature of the War on Terror,” 58 VNLR 1629, 1650-1653. October, 2005. Captain Peal outlines the basic procedure followed in the pre-CSRT process as well as in the CSRT, itself: “Prior to any CSRT hearing or detention in Guantanamo, however, a detainee must go through a six-stage vetting process. First, “[a]t the time of capture and based on available information, combatant and field commanders determine whether a captured individual was part of or supporting forces hostile to the United States or coalition partners, and engaged in an armed conflict against the United States.” Second, the immediate commander, after “a period of initial detention,” must decide whether to send the detainee to a centralized holding area. Third, “[a] military screening team at the central holding area reviews all available information . . . [w]ith assistance from other U.S. government officials on the ground . . . and considering all relevant information . . . the military screening team assesses whether the detainee should continue to be detained and whether transfer to Guantanamo is warranted.” Fourth, a general officer appointed by the combatant commander reviews the screening team’s assessment. Fifth, an internal Department of Defense (“DOD”) team in Washington reviews the detention before transfer. Finally, immediately upon arrival at Guantanamo, further reviews of the detainee’s status are made prior to the CSRT hearing . . . Once the detainees arrive in Guantanamo, they are required to appear before a CSRT. The CSRT Order dictates the composition of the tribunal, and applies “only to foreign nationals held as enemy combatants in the control of the Department of Defense at the Guantanamo Bay Naval Base, Cuba.” The CSRT consists of “three neutral commissioned officers of the U.S. Armed Forces, each of whom possesses the appropriate security clearance and none of whom was involved in the apprehension, detention, interrogation, or previous determination of status of the detainee.” Each detainee is appointed a “personal representative,” a military officer with the appropriate security clearance, to assist him through the review process. This officer is typically not a lawyer. The officer is allowed to view all evidence entered against the detainee, and is permitted to share the unclassified portions of the evidence with the detainee. The detainee then has advance notice of the unclassified factual basis for his designation as an enemy combatant, is allowed to attend the proceedings, and is provided with an interpreter if necessary. The CSRT Order lays out the specific procedure to be followed by the CSRT as well. Members of the Tribunal, including the Recorder, shall be placed under oath. The Record will include “all the documentary evidence presented to the Tribunal,” a summary of witness testimony, “a written report of the Tribunal’s decision, and a recording of the proceeding”; it will exclude, however, all record of the deliberations and the votes of the members. The detainee will be allowed to call witnesses if “reasonably available,” and to question any witnesses presented against him. If witnesses are not reasonably available, “written statements, preferably sworn, may be submitted and considered as evidence.” The detainee shall have the right to testify, but may not be compelled to do so, and he may introduce any relevant documentary evidence. The Tribunal is not bound by ordinary rules of evidence. The Tribunal “shall be free to consider any information it deems relevant and helpful . . . . [F]or example, it may consider hearsay evidence, taking into account the reliability of such evidence in the circumstances.” Admissibility is based on how probative a particular piece of evidence is . . . Furthermore, a plurality of the Supreme Court has implicitly approved the relaxed rules of evidence used by the CSRT in Hamdi, allowing tailored proceedings. The CSRT must use the preponderance of the evidence standard of proof, which is the “traditional legal standard for status determinations.” Additionally, the government enjoys a rebuttable presumption of evidence in its favor. Again, the Court discussed the relaxation of this standard in Hamdi.” Most controversially, the Tribunal may elect to exclude the Defendant from certain portions of his own trial, due to national security concerns regarding classified information. These aspects of the CSRT differ substantially from the procedures outlined by the Uniform Code of Military Justice, which regulates courts-martial.

[11] Peal, Robert. “Combatant Status Review Tribunals and the Unique Nature of the War on Terror,” 58 VNLR 1629, 1649, 1650. October, 2005.

[12] “The Congress shall have power . . . to constitute tribunals inferior to the Supreme Court.” US Constitution, Art. I, Sec. 8.

[13] 327 U.S. 1, 7 (1946)

[14] Id. at 8.

[15] 317 U.S. 1 (1942).

[16] Id. at 11.

[17] 71 U.S. 2, 120 (1866).

[18] Hamdan v. Rumsfeld, Brief for Respondents, 2006 WL 460875 at 28, 29.

[19] Id. at 20-24.

[20] See Footnotes 1 and 8, supra.

[21] Yamashita at 8.

[22] Detainee Treatment Act of 2005, Pub. L. No. 109-148, Div. A, Tit. X, 119 Stat. 2739.

[23] Hamdan v. Rumsfeld, Brief for Respondents, 2006 WL 460875 at 1.

[24] Hamdan v. Rumsfeld, Respondents’ Motion to Dismiss for Lack of Jurisdiction, 2006 WL 77694 at 1, 2.

[25] See Footnote 6, supra. In this “war” with Al-Qaeda, “hostilities” may never cease, thus potentially indicating an indefinite imprisonment for Guantanamo detainees, under the Executive’s interpretations of his powers under law.

[26] See Footnote 10, supra.

[27] 2006 WL 259989

[28] Johnson v. Eisentrager, 39 U.S. 763, 767- 68 (1950); St. Cyr, 533 U.S. at 298-99.

[29] Brief for Petitioner, 2006 WL 53988, January 6, 2006.

[30] See Footnote 10.

[31] Brief for Petitioner, 2006 WL 53988, January 6, 2006. “Rather, 10 U.S.C. 821 ordains that, at most, the jurisdiction of commissions would be defined by the law of war. This jurisdictional limitation is the defining feature of military tribunals and the most important protection against the threat to liberty and our constitutional separation of powers posed by the existence of military trials. Milligan, 71 U.S. at 127. Quirin recognized that a court must examine if “it is within the constitutional power of the National Government to place petitioners upon trial before a military commission for the offenses with which they are charged.” 317 U.S. at 29. The Court “must therefore first inquire whether any of the acts charged is an offense against the law of war cognizable before a military tribunal.” Id . . . . . . The sole charge in this case, conspiracy, is not such an offense.” To substantiate this claim that “conspiracy” is not such an offense, Petitioner’s Brief validly relies upon customary international law, as well as national laws that clearly encompass “conspiracy.”

[32] Brief for Respondents, 2006 WL 460875, at 27. Also, see Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956).

[33] See Footnote 28, supra. Also, see Brief for Respondents, 2006 WL 460875, at 30.

[34] Brief for Respondents, 2006 WL 460875, at 30-37. Bowfin v. INS, 194 F.3d 483, 489 (4th Cir. 1999); Jimenez v. Aristeguieta, 311 F.2d 547, 557 n.6 (5th Cir. 1962); Poindexter v. Nash, 333 F.3d 372 (2d Cir. 2003); Wesson v. United States Penitentiary Beaumont, 305 F.3d 343 (5th Cir. 2002); Hain v. Gibson, 287 F.3d 1224 (10th Cir. 2002); United States ex rel. Perez v. Warden, 286 F.3d 1059 (8th Cir.).

[35] Brief for Respondents, 2006 WL 460875.

[36] http://www.law.georgetown.edu/webcast/eventDetail.cfm?eventID=114

[37] Author’s Note: I cannot envision the Court kowtowing so humbly to the Executive Branch. This leaves me to wonder why and how a case like Mr. Hamdan’s ever arrived at the footsteps of our Supreme Court. The cynic may posit that the Bush Administration may secretly be focused on buying extended Presidential rights and time to aggressively interrogate detainees, all to the end of forcing a sweaty “confession” and an unreliable indictment of some alleged evil empire in the Middle East for the catastrophe known as 9/11 – all with the goal of covering the tracks of our failed foreign policy vis-à-vis the “Axis of Evil.” Yet, if the government is truly motivated by ensuring our nation’s security and liberty, it seems that it has chosen the least efficacious manner of doing so. Due to the President’s war in Iraq, some 2,500 US soldiers are dead, and 17,500 are seriously wounded. Billions of dollars have been spent on the endless war effort. The threat of another horrendous attack on our Nation is just one Code Orange away. The Bush Administration has worn away at the legal liberties and protections afforded our Nation’s free inhabitants as well as its accused criminals, who are still allegedly presumed innocent until proven guilty. All things considered, I am reminded of a famous quote by our Nation’s eldest Statesman and most prominent Founding Father, Benjamin Franklin – a signatory to the Declaration of Independence, the Treaty of Paris, and the US Constitution: “Those who would give up an essential liberty for temporary security deserve neither liberty nor security.” Now, this is for the Court to decide.

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