2006 June 29

“Hamdan:” Bush Military Commissions Violate Laws of War


Hamdan v. Rumsfeld was one of four major decisions in which the Supreme Court invalidated key elements of the Bush administration’s war on terrorism. In Hamdan, the Court ruled that the military commissions created by President George W. Bush to try enemy combatants being held at Guantanamo Bay violated both the U.S. Uniform Code of Military Justice and the four Geneva Conventions, specifically Common Article 3. (For the creation of the Geneva Conventions, go to December 8, 1949.) The Court ruled that the provision in the 2005 Detainee Treatment Act giving the Circuit Court of Appeals “exclusive jurisdiction” over appeals of detention was unconstitutional — and that the Supreme Court had jurisdiction to hear this and other cases. In response to Hamdan, Congress passed the Military Detention Act of 2006 (signed into law on October 17, 2006).

The other three important Supreme Court decisions which rejected key part of the Bush administration’s war on terrorism were Hamdi v. Rumsfeld (June 28, 2004), in which the Court ruled that it was unconstitutional for the U.S. to hold Yaser Esam Hamdi, an American citizen, indefinitely as an “enemy combatant” without granting him access to the federal courts to challenge his detention; Rasul v. Bush (June 28, 2004), in which the Court ruled that the federal courts have jurisdiction to determine whether detainees held at Guantanamo Bay were wrongly detained; and Boumediene v. United States (June 12, 2008) in which the Court ruled that the privilege of the writ of habeas corpus extended to Lakhdar Boumediene, a foreign national, and that he had a right to challenge his detention by the U. S. at Guantanamo Bay.

The four decisions stand in contrast to the Supreme Court’s posture during World War II with regard to the evacuation and internment of the Japanese-Americans. In both Hirabayashi v. United States (June 21, 1943), involving a curfew, and Korematsu v. United States (December 18, 1944), involving evacuation, the Court deferred to presidential wartime power and upheld the government’s program. Only in Ex parte Endo (December 18, 1944) did the Court rule that the government could not detain people it conceded were loyal to the U.S.

Learn more:  Jonathan Mahler, The Challenge: Hamdan v. Rumsfeld, and the Fight over Presidential Power (2008)

And more: Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (2008)

See the Pentagon’s explanation of its military commissions: http://www.mc.mil/aboutus.aspx

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