Hamdan v. Rumsfeld: Applying the Constitution to Guantánamo prisoners

In times of crisis, such as the “War on Terror,” when suspects deemed as threats to national security are subject to the highest levels of punishment, an important question is whether executive actions taken against those people should be subject to legal scrutiny as well.

In the historic ruling of Hamdan v. Rumsfeld (2006), delivered on June 29, 2006, that answer was yes. The George W. Bush administration sought to have the plaintiff, a prisoner of war, tried by a military commission, but the Supreme Court ruled such a commission to be outside of the inherent powers of the executive branch and in violation of the plaintiff’s constitutional rights.

The plaintiff in this landmark decision was Yemeni citizen Salim Ahmed Hamdan. Hamdan was Osama bin Laden’s chaueffeur, captured by Afghan militia forces in 2001; he was subsequently turned over to the United States and imprisoned in Guantánamo Bay in 2002 by the U.S. military.

In 2004, President Bush declared that Hamdan had committed crimes triable by a military commission. When before such a commission, the accused is afforded military counsel and a copy of the charges against him; however, in the interest of national security, he is denied the right to see all evidence or hear all witness statements, and the hearing may take place outside of his presence. The commission designated Hamdan as an enemy combatant, trying and convicting him of conspiracy.

In response, Hamdan filed a writ of habeas corpus—protected by the Suspension Clause in Article I, Section 9 of the Constitution, which says that habeas cannot be suspended except in circumstances of rebellion or invasion—and challenged the constitutionality of his commission. The petition was reviewed and granted by the U.S. District Court for the District of Columbia, which ruled that, before a military commission could try him, Hamdan first had to be given a hearing determining whether he was a prisoner of war (POW) under the Geneva Convention, a series of treaties which broadly govern the treatment of and protect POWs.

However, a three-judge panel for the U.S. Court of Appeals for the District of Columbia voted unanimously to reverse the decision. Their rationale centered largely on the arguments that, because it was a treaty, the Geneva Convention did not apply to individual rights or to members of al-Qaeda, and that authorization by Congress renders military commissions legitimate means for trying enemy combatants.

The case went to the Supreme Court, which issued a 5-3 decision, 10 years ago today, reversing the lower court. The majority’s main rationale was that there was no constitutional basis for acts of Congress or any inherent executive powers that authorized the military commission in question. As such, the commission was required to be in compliance with federal law and the laws of war. The Supreme Court therefore had the power to enforce both the Geneva Convention and the Uniform Code of Military Justice. The structure of the military commission—namely, the exclusion of Hamadan from parts of his own trial—violated both the terms of the Convention and the Code, and was therefore unconstitutional.

The decision was a reminder that executive power is not unitary or immune to checks and balances. Furthermore, it was a reassertion of the universal nature of constitutional rights—even for Guantánamo detainees.

But just a few months later, Congress unveiled the Military Commissions Act (MCA) of 2006, signed by the President in October 2006. Almost undoubtedly a response to the Hamdan ruling, its main purpose was “to authorize trial by military commission to violations of the law of war, and for other purposes.” Furthermore, the Act prevented federal courts from hearing the habeas petitions of those designated as enemy combatants. This set the stage for Bush v. Boumediene (2008).

Lakhdar Boumediene was one of five Algerian natives suspected in a plot to attack the U.S Embassy in Bosnia. Seized by Bosnian police and classified by the U.S. government as an enemy combatant in 2002, he was subsequently detained at Guantánamo Bay. He filed a writ of habeas corpus on the basis that his constitutional right to due process had been violated. In its first go-around in the courts, the claim was dismissed under the reasoning that Boumediene did not have rights to a habeas petition because he was an alien detained at an overseas military base. This ruling was affirmed by the D.C. Circuit but effectively reversed by the Supreme Court ruling Rasul v. Bush (2004), which stated that non-citizen Guantánamo detainees do in fact have the right to file a habeas petition.

Under the MCA, however, the federal courts had no jurisdiction to hear Boumediene’s habeas application because he had been classified as an enemy combatant. So the case was appealed to the D.C. Circuit a second time on the grounds that it violated the Suspension Clause. The D.C. Circuit denied the appeal, basing its decision on language in the MCA stipulating that the Act apply to all cases with no exceptions. It was also argued that the Suspension Clause was only meant to protect habeas rights as they existed in 1789 and could not possibly have been meant in 1789 to extend to an overseas military base. Finally, the court held that aliens outside of the U.S. were outside the realm of constitutional protection and, as such, Guantánamo detainees were not guaranteed a right to the writ of habeas corpus.

After initially denying review, the Supreme Court weighed in on the case and issued a 5-4 decision declaring that Guantánamo detainees who had been classified as enemy combatants were nonetheless protected by the Suspension Clause and entitled to seek habeas. The fact that they were enemy combatants on an overseas military base was not enough to remove them from the realm of constitutional protection; the MCA was therefore unconstitutional in its violation of those rights.

Beyond stirring controversy around issues of executive action and the treatment of suspected terrorists, these cases raise integral questions about just how far the reach of constitutional protection should extend. Even more pertinently, they highlight the unavoidable and constantly developing conflict between the preservation of national security and the guarantee of constitutional rights—a conflict that will likely never cease.