Hamdan v. Rumsfeld

• Decision Date: 15 July 2005
• Docket Number: No. 04-5393.,04-5393.
• Citation: 415 F.3d 33
• Parties: Salim Ahmed HAMDAN, Appellee v. Donald H. RUMSFELD, United States Secretary of Defense, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

415 F.3d 33

Salim Ahmed HAMDAN, Appellee v. Donald H. RUMSFELD, United States Secretary of Defense, et al., Appellants.

No. 04-5393.

United States Court of Appeals, District of Columbia Circuit.

Argued April 7, 2005.

Decided July 15, 2005.

Appeal from the United States District Court for the District of Columbia (04cv01519).

Peter D. Keisler, Assistant Attorney General, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Paul D. Clement, Acting Solicitor General, Gregory G. Katsas, Deputy Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, Jonathan L. Marcus, Assistant to the Solicitor General, Douglas N. Letter, Robert M. Loeb, August Flentje, Sharon Swingle, Eric Miller and Stephan E. Oestreicher, Jr., Attorneys.

Daniel J. Popeo and Richard A. Samp were on the brief of amici curiae Washington Legal Foundation and Allied Educational Foundation in support of appellants.

Jay Alan Sekulow and James M. Henderson, Jr. were on the brief of amicus curiae The American Center for Law & Justice supporting appellants.

Neal K. Katyal and Charles Swift, pro hac vice, argued the cause for appellee. With them on the briefs were Benjamin S. Sharp, Kelly A. Cameron, Harry H. Schneider, Jr., Joseph M. McMillan, David R. East, and Charles C. Sipos.

Carlos M. Vazquez and David C. Vladeck were on the brief of amici curiae of fifteen law professors in support of appellee.

David R. Berz was on the brief for amici curiae Louise Doswald-Beck, et al. in support of appellee.

Jordan J. Paust was on the brief for amicus curiae International Law and National Security Law Professors in support of appellee.

Jenny S. Martinez, appearing pro se, was on the brief for amici curiae Jenny S. Martinez and Allison Marston Danner.

Mary J. Moltenbrey was on the brief for amici curiae 305 United Kingdom and European Parliamentarians in support of appellee.

Gary S. Thompson was on the brief for amici curiae Eleven Legal Scholars in support of appellee.

Philip Sundel, Attorney, Office of Chief Defense Counsel, was on the brief for amicus curiae Military Attorneys Detailed to Represent Ali Hamza Ahmad Sulayman Al Bahlul in support of appellee.

Kurt J. Hamrock and Phillip E. Carter were on the brief for amici curiae Military Law Practitioners and Academicians Kevin J. Barry, et al. in support of appellee.

Blair G. Brown was on the brief for amicus curiae National Association of Criminal Defense Lawyers, Inc. in support of appellee.

Elisa C. Massimino was on the brief for amici curiae Human Rights First, et al. in support of appellee.

David H. Remes was on the brief for amici curiae General Merrill A. McPeak, et al. in support of appellee.

Jonathan M. Freiman was on the brief for amici curiae People for the American Way Foundation, et al. in support of appellee.

Morton Sklar was on the brief for amicus curiae The World Organization for Human Rights USA in support of appellee.

Jonathan L. Hafetz was on the brief for amicus curiae Louis Fisher in support of appellee.

Alan I. Horowitz was on the brief for amicus curiae Noah Feldman in support of appellee.

Christopher J. Wright and Timothy J. Simeone were on the brief for amicus curiae Urban Morgan Institute for Human Rights in support of appellee.

James J. Benjamin, Jr., Nancy Chung, Amit Kurlekar, Steven M. Pesner, and Laura K. Soong were on the brief for amicus curiae The Association of the Bar of the City of New York in support of appellee.

Before: RANDOLPH and ROBERTS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RANDOLPH.

Concurring opinion filed by Senior Circuit Judge WILLIAMS.

RANDOLPH, Circuit Judge.

Afghani militia forces captured Salim Ahmed Hamdan in Afghanistan in late November 2001. Hamdan's captors turned him over to the American military, which transported him to the Guantanamo Bay Naval Base in Cuba. The military initially kept him in the general detention facility, known as Camp Delta. On July 3, 2003, the President determined "that there is reason to believe that [Hamdan] was a member of al Qaeda or was otherwise involved in terrorism directed against the United States." This finding brought Hamdan within the compass of the President's November 13, 2001, Order concerning the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed.Reg. 57,833. Accordingly, Hamdan was designated for trial before a military commission.

In December 2003, Hamdan was removed from the general population at Guantanamo and placed in solitary confinement in Camp Echo. That same month, he was appointed counsel, initially for the limited purpose of plea negotiation. In April 2004, Hamdan filed this petition for habeas corpus. While his petition was pending before the district court, the government formally charged Hamdan with conspiracy to commit attacks on civilians and civilian objects, murder and destruction of property by an unprivileged belligerent, and terrorism. The charges alleged that Hamdan was Osama bin Laden's personal driver in Afghanistan between 1996 and November 2001, an allegation Hamdan admitted in an affidavit. The charges further alleged that Hamdan served as bin Laden's personal bodyguard, delivered weapons to al Qaeda members, drove bin Laden to al Qaeda training camps and safe havens in Afghanistan, and trained at the al Qaeda-sponsored al Farouq camp. Hamdan's trial was to be before a military commission, which the government tells us now consists of three officers of the rank of colonel. Brief for Appellants at 7.

In response to the Supreme Court's decision in Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004), Hamdan received a formal hearing before a Combatant Status Review Tribunal. The Tribunal affirmed his status as an enemy combatant, "either a member of or affiliated with Al Qaeda," for whom continued detention was required.

On November 8, 2004, the district court granted in part Hamdan's petition. Among other things, the court held that Hamdan could not be tried by a military commission unless a competent tribunal determined that he was not a prisoner of war under the 1949 Geneva Convention governing the treatment of prisoners. The court therefore enjoined the Secretary of Defense from conducting any further military commission proceedings against Hamdan. This appeal followed.

I.

The government's initial argument is that the district court should have abstained from exercising jurisdiction over Hamdan's habeas corpus petition. Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3 (1942), in which captured German saboteurs challenged the lawfulness of the military commission before which they were to be tried, provides a compelling historical precedent for the power of civilian courts to entertain challenges that seek to interrupt the processes of military commissions. The Supreme Court ruled against the petitioners in Quirin, but only after considering their arguments on the merits. In an effort to minimize the precedential effect of Quirin, the government points out that the decision predates the comity-based abstention doctrine recognized in Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), and applied by this court in New v. Cohen, 129 F.3d 639 (D.C.Cir.1997). Councilman and New hold only that civilian courts should not interfere with ongoing court-martial proceedings against citizen servicemen. The cases have little to tell us about the proceedings of military commissions against alien prisoners. The serviceman in Councilman wanted to block his court-martial for using and selling marijuana; the serviceman in New wanted to stop his court-martial for refusing to obey orders. The rationale of both cases was that a battle-ready military must be able to enforce "a respect for duty and discipline without counterpart in civilian life," Councilman, 420 U.S. at 757, 95 S.Ct. 1300, and that "comity aids the military judiciary in its task of maintaining order and discipline in the armed services," New, 129 F.3d at 643. These concerns do not exist in Hamdan's case and we are thus left with nothing to detract from Quirin's precedential value.

Even within the framework of Councilman and New, there is an exception to abstention: "a person need not exhaust remedies in a military tribunal if the military court has no jurisdiction over him." New, 129 F.3d at 644. The theory is that setting aside the judgment after trial and conviction insufficiently redresses the defendant's right not to be tried by a tribunal that has no jurisdiction. See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The courts in Councilman and New did not apply this exception because the servicemen had not "raised substantial arguments denying the right of the military to try them at all." New, 129 F.3d at 644 (citing Councilman, 420 U.S. at 759, 95 S.Ct. 1300). Hamdan's jurisdictional challenge, by contrast, is not insubstantial, as our later discussion should demonstrate. While he does not deny the military's authority to try him, he does contend that a military commission has no jurisdiction over him and that any trial must be by court-martial. His claim, therefore, falls within the exception to Councilman and, in any event, is firmly supported by the Supreme Court's disposition of Quirin.

II.

In an argument distinct from his claims about the Geneva Convention, which we will discuss next, Hamdan maintains that the President violated the separation of powers inherent in the Constitution when he established military commissions. The argument is that Article I, § 8, of the Constitution gives Congress the power "to constitute Tribunals inferior to the supreme Court," that Congress has not established military commissions, and that the President has no inherent authority to do so under Article II. See Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying...