Salim Ahmed Hamdan, a Yemeni national who was Osama Bin Laden’s driver and guard, was captured in Afghanistan during the hostilities in 2001. In 2004, President George W. Bush ordered that Hamdan be tried by a military commission.

Hamdan filed his petition for habeas corpus, claiming that the military commission lacked authority to try him since there was no congressional act that authorized them. Further, Hamdan’s counsels—Prof. Neal Katyal and Lt. Commander Charles Swift—asserted that military commissions were unlawful from the procedural and substantive legal point of the Uniform Code of Military Justice (UCMJ) and Common Article III of the Geneva Conventions.

On November 8, 2004, Judge James Robertson of the U.S. District Court for the District of Columbia granted Hamdan’s petition. The government argued that Hamdan was not entitled to access to federal courts since he was not a prisoner of war but rather an enemy combatant. Further, the government reasoned that the Geneva Conventions did not apply, since the conventions only addressed international wars instead of conflicts against terrorists.

The judge held that the conventions applied since they “are triggered by the place of conflict, and not by what particular faction a fighter is associated with.” More importantly, he found that “there [was] nothing in [the] record to suggest that a competent tribunal had determined that Hamdan is not a prisoner-of-war under the Geneva Conventions.” Consequently, the court dismissed the government’s position that al Qaeda members are not prisoners of war due to the determination, stating that “the President is not a ‘Tribunal.’”

The court also found that the military commissions were inconsistent with and contrary to the UCMJ in that they excluded the accused from hearings and denied the accused access to the evidence presented against him.

Hence the court ordered that “unless and until a competent tribunal determines that Hamdan is not entitled to POW status, he may be tried for the offenses …only by court-martial under the UCMJ.” Interestingly, Hamdan was charged with conspiracy to commit acts of terror. The court also held that unless and until the military commissions amended the rule withholding evidence and excluding Hamdan from commission sessions, the trial before the commission was unlawful.

On July 15, 2005, the U.S Court of Appeals for the District of Columbia Circuit reversed the lower court’s decision. In his opinion, Judge Randolph asserted that the district court erred in “interpret[ing] the final qualifying clause [of Article 10 of UCMJ] to mean that military commissions must comply in all respects with the requirements of the UCMJ.” Instead, he presented a reading in which the President may not adopt procedures that are contrary to or inconsistent with the UCMJ’s provisions governing military commissions. He ruled that Hamdan’s trial before a military commission did not violate Article 36 if it omitted the procedural guarantee of access to evidence and commission sessions.

Further, the court found that Hamdan’s petition for a prisoner of war status under the conventions was “not judicially enforceable” due to a subsection of Army Regulation 190-8 which requires that prisoners receive the protections of the convention “until some other legal status is determined by a competent authority.” The court found the President as a competent authority and gave “great weight” to his determination of Hamdan’s status as an enemy combatant.

Accordingly, on January 6, 2006, the Center for Constitutional Rights (CCR), along with a host of international human rights organizations, filed an amicus brief which argued that the Geneva Conventions create primary individual rights which are enforceable through the federal court’s interpretation of treaties and common international law.

CCR reasoned that under the supremacy clause “all Treaties made under the Authority of the United States share with the Constitution and federal statutes the status of supreme law of the land.” Consequently, the brief argued that “the Supremacy Clause, as applied to treaties, is that it converts primary international rights and duties into primary domestic rights,” and are accordingly enforceable in federal courts.

The brief also addressed the court of appeals’ Army Regulation argument by showing that every branch of the armed forces treats the Geneva Conventions as binding law and that the conventions take precedence in “conflicts or discrepancies between regulations.”

More importantly, the brief cited an Army field manual which stated that “persons who have been determined by a competent tribunal not to be entitled to prisoner-of-war status may not be executed, imprisoned, or otherwise penalized without further judicial proceedings (in compliance with the Fourth Geneva Convention) to determine what acts they have committed and what penalty should be imposed therefore.”

On June 29, 2006, the Supreme Court reversed the lower court’s decision. However, while the case was pending, Congress passed the Detainee Treatment Act (DTA), which stripped all courts, justices, and judges of the jurisdiction to hear an application for a writ of habeas corpus or any other action against the government and its agents relating to detention of a detainee at Guantánamo.

Before reviewing the merits of the case, the Court held that the DTA did not apply to pending cases. The core issue which the Court examined was whether Congress had authorized President Bush to create military tribunals.

In its argument, the government asserted that congressional authorization was inherent in the Authorization for the Use of Military Force (AUMF) as well as the UCMJ, which requires that commissions and tribunals conform to the common law of war.

The Court, contrary to the lower court, found that in matters of procedure the military tribunals must follow the same guidelines as court-martial procedures. Hence, Hamdan’s trial by a military tribunal was deemed unlawful since the tribunal was “inconsistent with or contrary to” the UCMJ. From a substantive legal point, the charges against Hamdan were not consistent with the common laws of war. Hamdan had been charged with conspiracy to commit acts of terror; however, conspiracy to act is not considered a war crime.

On the question of whether or not Common Article III of the Geneva Conventions applied, the Court rejected the government’s assertion that the conventions were inapplicable. Further, the Court found that the President was constrained in his prescriptions for tribunals by statutory limits relating to the conventions within the military commissions.

The Court required that in accordance with the conventions, Hamdan be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

In October 2006, President Bush signed into law the Military Commissions Act, which above and beyond the DTA added a retroactivity provision which stripped federal habeas jurisdiction for all pending and future cases.

On remand in December 2006, the District Court of D.C. found that even though the MCA did strip the jurisdiction of the federal courts, it did not suspend the writ of habeas corpus within the Constitution’s suspension clause. However, Judge Robertson held that non-resident enemy aliens captured and detained outside the United States had no constitutional entitlement to habeas corpus since “lawful but involuntary [presence] is not of the sort to indicate any substantial connection with our country that would justify the invocation of a constitutional right to habeas corpus.”