In 2004, the Supreme Court established in Hamdi v. Rumsfeld that although all enemy combatants are subject to detainment, including U.S. citizens, detainees who are U.S. citizens cannot be held indefinitely without all the due process protections enforceable through judicial review. The court upheld this decision despite the fact that Hamdi was allegedly caught as a part of supporting forces hostile to the U.S. in Afghanistan. According to the 8 of 9 justices who were part of the plurality opinion written by Justice O’Connor, the constitution empowers the Judiciary to act as a check on Executive power in the realm of detention. The plurality argued that executive power cannot take away the ability for a citizen to challenge the factual basis of his detention, even if he is an enemy combatant, by the great writ of habeas corpus.
That same day in 2004 when Hamdi v. Rumsfeld was decided, the court also decided In Rasul v. Bush, which clarified the jurisdiction of U.S. courts over Guantanamo Bay, as well as any foreign nationals who were detained by the U.S. Government. The landmark 6-3 decision reversed the District Court’s decision, which held that the judiciary lacked jurisdiction. According to the District Court, unless detainees were either U.S. citizens, or held in a geographical territory where U.S. has sovereignty, they were unable to file habeas corpus petitions of wrongful detainment. The Supreme Court referenced Hamdi v. Rumsfeld, using the fact that the courts would not challenge a habeas corpus petition by a U.S. citizen in Guantanamo, as evidence that the courts had jurisdiction at the base.
In Hamdan v. Rumsfeld (2006). The plaintiff was Salim Ahmed Hamdan, a citizen of Yemen, who worked for Osama bin Laden. Hamdan was captured in 2001 by militia forces and by 2002 he was sent by the US to the Guantanamo Bay Detention Camp. He was subsequently charged with conspiracy to commit terrorism, and was arranged to be tried bxefore a military commission established under Military Commission Order No. 1. Hamdan filed a petition for a writ of habeas corpus, (a right established earlier in Rasul v. Bush,) challenging the constitutionality of the military commission, as well as violated protections under the Geneva Conventions and the Uniform Code of Military Justice. The district court of Columbia ruled in Hamdan’s favor, stating that he could not be subjected to trial prior to being confirmed as not a prisoner-of-war—which would necessitate a combatant status review tribunal. The appeals court of Columbia unanimously reversed the ruling, citing reasons related to the remote jurisdiction of the Geneva Convention. The literal interpretation by the appeals court judges led to their decision that the Geneva Convention is a treaty between nations, and does not confer individual rights, or remedies, and that the judicial court of the U.S. cannot enforce the Convention. The Appeals Court also argued that the military commissions set up by the Military Commissions Act of 2006 were legitimate because they were approved by Congress. The Supreme Court reversed the ruling of the Court of Appeals, finding the war crime tribunals and special military commissions illegal under both the military justice law and the Geneva Conventions.
According to Article 21 of the Uniform Code of Military Justice (UCMJ), any military commissions are required to operate within the “laws of war,” or authorized by Congress via statute. The Appeals Court cited the Authorization for Use of Military Force (AUMF) as congressional authorization, but the Supreme Court asserted there was nothing in the AUMF that justified an expansion of military executive power beyond the operating realm of the laws of war. In addition to lacking adequate statutory support from Congress, the Supreme Court found that military commissions deviated drastically from the high standard of courts-martial. According to the UCMJ, Art 36 (b), the rules applied in courts-martial and military commissions be “uniform insofar as practicable.” The Supreme Court cited many faulty differences. These included lack of access to attorney or counsel, the restriction on disclosure of evidence/charges against the defendant, (thus giving them no opportunity to refute,) court rooms closed to the public, the admittance of questionable evidence, (such as “hearsay,” unsworn live testimony, statements gathered through torture and other illegal interrogation methods,) selective access to hear appeals by the executive branch and not the judiciary, only requiring a two-thirds vote for convictions, (even those involving charges like murder,) and others.
The Supreme Court also found the commissions illegal under Article 3 of the Geneva Conventions—the only section that applies “at least,” or in non-international conflicts. The minimal protections bind all parties of the convention, regardless of whether the individuals are citizens or non-citizens, whether they are combatants, non-combatants, or combatants out due to wounds or detention. The protections even cover those individuals who are not classified as prisoners of war, unlike the assertions made by the Appeals Court. The Supreme Court also cited the section of Article 3 that read, “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” as necessarily including all the protections that were excluded by the military commissions.