United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 7, 2005 Decided July 15, 2005
Reissued July 18, 2005
No. 04-5393
SALIM AHMED HAMDAN ,
APPELLEE
v.
DONALD H. RUMSFELD , UNITED STATES SECRETARY OF
DEFENSE, ET AL.,
APPELLANTS
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, 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.
2
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.
3
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.
4
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
5
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, 124 S. Ct. 2633 (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
(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
6
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
(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, 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 (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). 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
7
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 the Military Tribunals,
111 YALE L.J. 1259, 1284-85 (2002).
There is doubt that this separation-of-powers claim properly
may serve as a basis for a court order halting a trial before a
military commission, see United States v. Cisneros, 169 F.3d
763, 768-69 (D.C. Cir. 1999), and there is doubt that someone
in Hamdan’s position is entitled to assert such a constitutional
claim, see People’s Mojahedin Org. v. Dep’t of State, 182 F.3d
17, 22 (D.C. Cir. 1999); 32 County Sovereignty Comm. v. Dep’t
of State, 292 F.3d 797, 799 (D.C. Cir. 2002). In any event, on
the merits there is little to Hamdan’s argument.
The President’s Military Order of November 13, 2001,
stated that any person subject to the order, including members
of al Qaeda, “shall, when tried, be tried by a military
commission for any and all offenses triable by [a] military
commission that such individual is alleged to have
8
committed . . ..” 66 Fed. Reg. at 57,834. The President relied
on four sources of authority: his authority as Commander in
Chief of the Armed Forces, U.S. CONST ., art. II, § 2; Congress’s
joint resolution authorizing the use of force; 10 U.S.C. § 821;
and 10 U.S.C. § 836. The last three are, of course, actions of
Congress.
In the joint resolution, passed in response to the attacks of
September 11, 2001, Congress authorized the President “to use
all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized,
committed, or aided” the attacks and recognized the President’s
“authority under the Constitution to take action to deter and
prevent acts of international terrorism against the United States.”
Authorization for Use of Military Force, Pub. L. No. 107-40,
115 Stat. 224, 224 (2001). In re Yamashita, 327 U.S. 1 (1946),
which dealt with the validity of a military commission, held that
an “important incident to the conduct of war is the adoption of
measures by the military commander, not only to repel and
defeat the enemy, but to seize and subject to disciplinary
measures those enemies who, in their attempt to thwart or
impede our military effort, have violated the law of war.” Id. at
11. “The trial and punishment of enemy combatants,” the Court
further held, is thus part of the “conduct of war.” Id. We think
it no answer to say, as Hamdan does, that this case is different
because Congress did not formally declare war. It has been
suggested that only wars between sovereign nations would
qualify for such a declaration. See John M. Bickers, Military
Commissions are Constitutionally Sound: A Response to
Professors Katyal and Tribe, 34 TEX. TECH. L. REV. 899, 918
(2003). Even so, the joint resolution “went as far toward a
declaration of war as it might, and as far or further than
Congress went in the Civil War, the Philippine Insurrection, the
Boxer Rebellion, the Punitive Expedition against Pancho Villa,
the Korean War, the Vietnam War, the invasion of Panama, the
9
Gulf War, and numerous other conflicts.” Id. at 917. The
plurality in Hamdi v. Rumsfeld, in suggesting that a military
commission could determine whether an American citizen was
an enemy combatant in the current conflict, drew no distinction
of the sort Hamdan urges upon us. 124 S. Ct. at 2640-42.
Ex parte Quirin also stands solidly against Hamdan’s
argument. The Court held that Congress had authorized military
commissions through Article 15 of the Articles of War. 317
U.S. at 28-29; accord In re Yamashita, 327 U.S. at 19-20. The
modern version of Article 15 is 10 U.S.C. § 821, which the
President invoked when he issued his military order. Section
821 states that court-martial jurisdiction does not “deprive
military commissions . . . of concurrent jurisdiction with respect
to offenders or offenses that by statute or by the law of war may
be tried by military commissions.” Congress also authorized the
President, in another provision the military order cited, to
establish procedures for military commissions. 10 U.S.C.
§ 836(a). Given these provisions and Quirin and Yamashita, it
is impossible to see any basis for Hamdan’s claim that Congress
has not authorized military commissions. See Curtis A. Bradley
& Jack L. Goldsmith, Congressional Authorization and the War
on Terrorism, 118 HARV. L. REV. 2048, 2129-31 (2005). He
attempts to distinguish Quirin and Yamashita on the ground that
the military commissions there were in “war zones” while
Guantanamo is far removed from the battlefield. We are left to
wonder why this should matter and, in any event, the distinction
does not hold: the military commission in Quirin sat in
Washington, D.C., in the Department of Justice building; the
military commission in Yamashita sat in the Phillipines after
Japan had surrendered.
We therefore hold that through the joint resolution and the
two statutes just mentioned, Congress authorized the military
commission that will try Hamdan.
10
III.
This brings us to Hamdan’s argument, accepted by the
district court, that the Geneva Convention Relative to the
Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316
(“1949 Geneva Convention”), ratified in 1955, may be enforced
in federal court.
“Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the
Land.” U.S. CONST ., art. VI, cl. 2. Even so, this country has
traditionally negotiated treaties with the understanding that they
do not create judicially enforceable individual rights. See
Holmes v. Laird, 459 F.2d 1211, 1220, 1222 (D.C. Cir. 1972);
Canadian Transport Co. v. United States, 663 F.2d 1081, 1092
(D.C. Cir. 1980). As a general matter, a “treaty is primarily a
compact between independent nations,” and “depends for the
enforcement of its provisions on the interest and honor of the
governments which are parties to it.” Head Money Cases, 112
U.S. 580, 598 (1884). If a treaty is violated, this “becomes the
subject of international negotiations and reclamation,” not the
subject of a lawsuit. Id.; see Charlton v. Kelly, 229 U.S. 447,
474 (1913); Whitney v. Robertson, 124 U.S. 190, 194-95 (1888);
Foster v. Neilson, 27 U.S. (2 Pet.) 253, 306, 314 (1829),
overruled on other grounds, United States v. Percheman, 32
U.S. (7 Pet.) 51 (1883).
Thus, “[i]nternational agreements, even those directly
benefitting private persons, generally do not create private rights
or provide for a private cause of action in domestic courts.”
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE
UNITED STATES § 907 cmt. a, at 395 (1987). The district court
nevertheless concluded that the 1949 Geneva Convention
conferred individual rights enforceable in federal court. We
believe the court’s conclusion disregards the principles just
11
mentioned and is contrary to the Convention itself. To explain
why, we must consider the Supreme Court’s treatment of the
Geneva Convention of 1929 in Johnson v. Eisentrager, 339 U.S.
763 (1950), and this court’s decision in Holmes v. Laird, neither
of which the district court mentioned.
In Eisentrager, German nationals, convicted by a military
commission in China of violating the laws of war and
imprisoned in Germany, sought writs of habeas corpus in federal
district court on the ground that the military commission
violated their rights under the Constitution and their rights under
the 1929 Geneva Convention. 339 U.S. at 767. The Supreme
Court, speaking through Justice Jackson, wrote in an alternative
holding that the Convention was not judicially enforceable: the
Convention specifies rights of prisoners of war, but
“responsibility for observance and enforcement of these rights
is upon political and military authorities.” Id. at 789 n.14. We
relied on this holding in Holmes v. Laird, 459 F.2d at 1222, to
deny enforcement of the individual rights provisions contained
in the NATO Status of Forces Agreement, an international
treaty.
This aspect of Eisentrager is still good law and demands
our adherence. Rasul v. Bush, 124 S. Ct. 2686 (2004), decided
a different and “narrow” question: whether federal courts had
jurisdiction under 28 U.S.C. § 2241 “to consider challenges to
the legality of the detention of foreign nationals” at Guantanamo
Bay. Id. at 2690. The Court’s decision in Rasul had nothing to
say about enforcing any Geneva Convention. Its holding that
federal courts had habeas corpus jurisdiction had no effect on
Eisentrager’s interpretation of the 1929 Geneva Convention.
That interpretation, we believe, leads to the conclusion that the
1949 Geneva Convention cannot be judicially enforced.
12
Although the government relied heavily on Eisentrager in
making its argument to this effect, Hamdan chose to ignore the
decision in his brief. Nevertheless, we have compared the 1949
Convention to the 1929 Convention. There are differences, but
none of them renders Eisentrager’s conclusion about the 1929
Convention inapplicable to the 1949 Convention. Common
Article 1 of the 1949 Convention states that parties to the
Convention “undertake to respect and to ensure respect for the
present Convention in all circumstances.” The comparable
provision in the 1929 version stated that the “Convention shall
be respected . . . in all circumstances.” Geneva Convention of
1929, art. 82. The revision imposed upon signatory nations the
duty not only of complying themselves but also of making sure
other signatories complied. Nothing in the revision altered the
method by which a nation would enforce compliance. Article 8
of the 1949 Convention states that its provisions are to be
“applied with the cooperation and under the scrutiny of the
Protecting Powers . . ..” This too was a feature of the 1929
Convention. See Geneva Convention of 1929, art. 86. But
Article 11 of the 1949 Convention increased the role of the
protecting power, typically the International Red Cross, when
disputes arose: “[I]n cases of disagreement between the Parties
to the conflict as to the application or interpretation of the
provisions of the present Convention, the Protecting Powers
shall lend their good offices with a view to settling the
disagreement.” Here again there is no suggestion of judicial
enforcement. The same is true with respect to the other method
set forth in the 1949 Convention for settling disagreements.
Article 132 provides that “at the request of a Party to the
conflict, an enquiry shall be instituted, in a manner to be decided
between the interested Parties, concerning any alleged violation
of the Convention.” If no agreement is reached about the
procedure for the “enquiry,” Article 132 further provides that
“the Parties should agree on the choice of an umpire who will
decide upon the procedure to be followed.”
13
Hamdan points out that the 1949 Geneva Convention
protects individual rights. But so did the 1929 Geneva
Convention, as the Court recognized in Eisentrager, 339 U.S. at
789-90. The NATO Status of Forces Agreement, at issue in
Holmes v. Laird, also protected individual rights, but we held
that the treaty was not judicially enforceable. 459 F.2d at 1222.
Eisentrager also answers Hamdan’s argument that the
habeas corpus statute, 28 U.S.C § 2241, permits courts to
enforce the “treaty-based individual rights” set forth in the
Geneva Convention. The 1929 Convention specified individual
rights but as we have discussed, the Supreme Court ruled that
these rights were to be enforced by means other than the writ of
habeas corpus. The Supreme Court’s Rasul decision did give
district courts jurisdiction over habeas corpus petitions filed on
behalf of Guantanamo detainees such as Hamdan. But Rasul did
not render the Geneva Convention judicially enforceable. That
a court has jurisdiction over a claim does not mean the claim is
valid. See Bell v. Hood, 327 U.S. 678, 682-83 (1946). The
availability of habeas may obviate a petitioner’s need to rely on
a private right of action, see Wang v. Ashcroft, 320 F.3d 130,
140-41 & n.16 (2d Cir. 2003), but it does not render a treaty
judicially enforceable.
We therefore hold that the 1949 Geneva Convention does
not confer upon Hamdan a right to enforce its provisions in
court. See Huynh Thi Anh v. Levi, 586 F.2d 625, 629 (6th Cir.
1978).
IV.
Even if the 1949 Geneva Convention could be enforced in
court, this would not assist Hamdan. He contends that a military
commission trial would violate his rights under Article 102,
which provides that a “prisoner of war can be validly sentenced
14
only if the sentence has been pronounced by the same courts
according to the same procedure as in the case of members of
the armed forces of the Detaining Power.” One problem for
Hamdan is that he does not fit the Article 4 definition of a
“prisoner of war” entitled to the protection of the Convention.
He does not purport to be a member of a group who displayed
“a fixed distinctive sign recognizable at a distance” and who
conducted “their operations in accordance with the laws and
customs of war.” See 1949 Convention, arts. 4A(2)(b), (c) &
(d). If Hamdan were to claim prisoner of war status under
Article 4A(4) as a person who accompanied “the armed forces
without actually being [a] member[] thereof,” he might raise that
claim before the military commission under Army Regulation
190-8. See Section VII of this opinion, infra. (We note that
Hamdan has not specifically made such a claim before this
court.)
Another problem for Hamdan is that the 1949 Convention
does not apply to al Qaeda and its members. The Convention
appears to contemplate only two types of armed conflicts. The
first is an international conflict. Under Common Article 2, the
provisions of the Convention apply to “all cases of declared war
or of any other armed conflict which may arise between two or
more of the High Contracting Parties, even if the state of war is
not recognized by one of them.” Needless to say, al Qaeda is
not a state and it was not a “High Contracting Party.” There is
an exception, set forth in the last paragraph of Common Article
2, when one of the “Powers” in a conflict is not a signatory but
the other is. Then the signatory nation is bound to adhere to the
Convention so long as the opposing Power “accepts and applies
the provisions thereof.” Even if al Qaeda could be considered
a Power, which we doubt, no one claims that al Qaeda has
accepted and applied the provisions of the Convention.
15
The second type of conflict, covered by Common Article 3,
is a civil war -- that is, an “armed conflict not of an international
character occurring in the territory of one of the High
Contracting Parties . . ..” In that situation, Common Article 3
prohibits “the passing of sentences and the carrying out of
executions without previous judgment pronounced by a
regularly constituted court affording all the judicial guarantees
which are recognized as indispensable by a civilized people.”
Hamdan assumes that if Common Article 3 applies, a military
commission could not try him. We will make the same
assumption arguendo, which leaves the question whether
Common Article 3 applies. Afghanistan is a “High Contracting
Party.” Hamdan was captured during hostilities there. But is
the war against terrorism in general and the war against al Qaeda
in particular, an “armed conflict not of an international
character”? See INT ’L COMM . RED CROSS, COMMENTARY: III
GENEVA CONVENTION RELATIVE TO THE TREATMEN T OF
PRISONERS OF WAR 37 (1960) (Common Article 3 applies only
to armed conflicts confined to “a single country”). President
Bush determined, in a memorandum to the Vice President and
others on February 7, 2002, that it did not fit that description
because the conflict was “international in scope.” The district
court disagreed with the President’s view of Common Article 3,
apparently because the court thought we were not engaged in a
separate conflict with al Qaeda, distinct from the conflict with
the Taliban. Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 161
(D.D.C. 2004). We have difficulty understanding the court’s
rationale. Hamdan was captured in Afghanistan in November
2001, but the conflict with al Qaeda arose before then, in other
regions, including this country on September 11, 2001. Under
the Constitution, the President “has a degree of independent
authority to act” in foreign affairs, Am. Ins. Ass’n v. Garamendi,
539 U.S. 396, 414 (2003), and, for this reason and others, his
construction and application of treaty provisions is entitled to
“great weight.” United States v. Stuart, 489 U.S. 353, 369
16
(1989); Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S.
176, 185 (1982); Kolovrat v. Oregon, 366 U.S. 187, 194 (1961).
While the district court determined that the actions in
Afghanistan constituted a single conflict, the President’s
decision to treat our conflict with the Taliban separately from
our conflict with al Qaeda is the sort of political-military
decision constitutionally committed to him. See Japan Whaling
Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986). To the
extent there is ambiguity about the meaning of Common Article
3 as applied to al Qaeda and its members, the President’s
reasonable view of the provision must therefore prevail.
V.
Suppose we are mistaken about Common Article 3.
Suppose it does cover Hamdan. Even then we would abstain
from testing the military commission against the requirement in
Common Article 3(1)(d) that sentences must be pronounced “by
a regularly constituted court affording all the judicial guarantees
which are recognized as indispensable by civilized peoples.”
See Councilman, 420 U.S. at 759; New, 129 F.3d at 644; supra
Part I. Unlike his arguments that the military commission
lacked jurisdiction, his argument here is that the commission’s
procedures -- particularly its alleged failure to require his
presence at all stages of the proceedings -- fall short of what
Common Article 3 requires. The issue thus raised is not whether
the commission may try him, but rather how the commission
may try him. That is by no stretch a jurisdictional argument.
No one would say that a criminal defendant’s contention that a
district court will not allow him to confront the witnesses against
him raises a jurisdictional objection. Hamdan’s claim therefore
falls outside the recognized exception to the Councilman
doctrine. Accordingly, comity would dictate that we defer to the
ongoing military proceedings. If Hamdan were convicted, and
if Common Article 3 covered him, he could contest his
17
conviction in federal court after he exhausted his military
remedies.
VI.
After determining that the 1949 Geneva Convention
provided Hamdan a basis for judicial relief, the district court
went on to consider the legitimacy of a military commission in
the event Hamdan should eventually appear before one. In the
district court’s view, the principal constraint on the President’s
power to utilize such commissions is found in Article 36 of the
Uniform Code of Military Justice, 10 U.S.C. § 836, which
provides:
Pretrial, trial, and post-trial procedures, including modes of
proof, for cases arising under this chapter triable in courts-
martial, military commissions and other military tribunals
. . . may be prescribed by the President by regulations
which shall, so far as he considers practicable, apply the
principles of law and the rules of evidence generally
recognized in the trial of criminal cases in the United States
district courts, but which may not be contrary to or
inconsistent with this chapter.
(Emphasis added.) The district court interpreted the final
qualifying clause to mean that military commissions must
comply in all respects with the requirements of the Uniform
Code of Military Justice (UCMJ). This was an error.
Throughout its Articles, the UCMJ takes care to distinguish
between “courts-martial” and “military commissions.” See, e.g.,
10 U.S.C. § 821 (noting that “provisions of this chapter
conferring jurisdiction upon courts-martial do not deprive
military commissions . . . of concurrent jurisdiction”). The
terms are not used interchangeably, and the majority of the
18
UCMJ’s procedural requirements refer only to courts-martial.
The district court’s approach would obliterate this distinction.
A far more sensible reading is that in establishing military
commissions, the President may not adopt procedures that are
“contrary to or inconsistent with” the UCMJ’s provisions
governing military commissions. In particular, Article 39
requires that sessions of a “trial by court-martial . . . shall be
conducted in the presence of the accused.” Hamdan’s trial
before a military commission does not violate Article 36 if it
omits this procedural guarantee.
The Supreme Court’s opinion in Madsen v. Kinsella, 343
U.S. 341 (1952), provides further support for this reading of the
UCMJ. There, the Court spoke of the place of military
commissions in our history, referring to them as “our
commonlaw war courts. . . . Neither their procedure nor their
jurisdiction has been prescribed by statute.” Id. at 346-48. The
Court issued its opinion two years after enactment of the UCMJ,
and it is difficult, if not impossible, to square the Court’s
language in Madsen with the sweeping effect with which the
district court would invest Article 36. The UCMJ thus imposes
only minimal restrictions upon the form and function of military
commissions, see, e.g., 10 U.S.C. §§ 828, 847(a)(1), 849(d), and
Hamdan does not allege that the regulations establishing the
present commission violate any of the pertinent provisions.
VII.
Although we have considered all of Hamdan’s remaining
contentions, the only one requiring further discussion is his
claim that even if the Geneva Convention is not judicially
enforceable, Army Regulation 190-8 provides a basis for relief.
This regulation, which contains many subsections, “implements
international law, both customary and codified, relating to
[enemy prisoners of war], [retained personnel], [civilian
19
internees], and [other detainees] which includes those persons
held during military operations other than war.” AR 190-8 § 1-
1(b). The regulation lists the Geneva Convention among the
“principal treaties relevant to this regulation.” § 1-1(b)(3); see
Hamdi, 124 S. Ct. at 2658 (Souter, J., concurring) (describing
AR 190-8 as “implementing the Geneva Convention”). One
subsection, § 1-5(a)(2), requires that prisoners receive the
protections of the Convention “until some other legal status is
determined by competent authority.” (Emphasis added.) The
President found that Hamdan was not a prisoner of war under
the Convention. Nothing in the regulations, and nothing
Hamdan argues, suggests that the President is not a “competent
authority” for these purposes.
Hamdan claims that AR 190-8 entitles him to have a
“competent tribunal” determine his status. But we believe the
military commission is such a tribunal. The regulations specify
that such a “competent tribunal” shall be composed of three
commissioned officers, one of whom must be field-grade. AR
190-8 § 1.6(c). A field-grade officer is an officer above the rank
of captain and below the rank of brigadier general -- a major, a
lieutenant colonel, or a colonel. The President’s order requires
military commissions to be composed of between three and
seven commissioned officers. 32 C.F.R. § 9.4(a)(2), (3). The
commission before which Hamdan is to be tried consists of three
colonels. Brief for Appellants at 7. We therefore see no reason
why Hamdan could not assert his claim to prisoner of war status
before the military commission at the time of his trial and
thereby receive the judgment of a “competent tribunal” within
the meaning of Army Regulation 190-8.
* * *
20
For the reasons stated above, the judgment of the district
court is reversed.
So ordered.
W ILLIAMS, Senior Circuit Judge, concurring: I concur in
all aspects of the court’s opinion except for the conclusion
that Common Article 3 does not apply to the United States’s
conduct toward al Qaeda personnel captured in the conflict in
Afghanistan. Maj. Op. 15-16. Because I agree that the
Geneva Convention is not enforceable in courts of the United
States, and that any claims under Common Article 3 should be
deferred until proceedings against Hamdan are finished, I
fully agree with the court’s judgment.
* * *
There is, I believe, a fundamental logic to the
Convention’s provisions on its application. Article 2 (¶ 1)
covers armed conflicts between two or more contracting
parties. Article 2 (¶ 3) makes clear that in a multi-party
conflict, where any two or more signatories are on opposite
sides, those parties “are bound by [the Convention] in their
mutual relations”--but not (by implication) vis-à-vis any non-
signatory. And as the court points out, Maj. Op. at 14, under
Article 2 (¶ 3) even a non-signatory “Power” is entitled to the
benefits of the Convention, as against a signatory adversary, if
it “accepts and applies” its provisions.
Non-state actors cannot sign an international treaty. Nor
is such an actor even a “Power” that would be eligible under
Article 2 (¶ 3) to secure protection by complying with the
Convention’s requirements. Common Article 3 fills the gap,
providing some minimal protection for such non-eligibles in
an “armed conflict not of an international character occurring
in the territory of one of the High Contracting Parties.” The
gap being filled is the non-eligible party’s failure to be a
nation. Thus the words “not of an international character” are
sensibly understood to refer to a conflict between a signatory
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nation and a non-state actor. The most obvious form of such a
conflict is a civil war. But given the Convention’s structure,
the logical reading of “international character” is one that
matches the basic derivation of the word “international,” i.e.,
between nations. Thus, I think the context compels the view
that a conflict between a signatory and a non-state actor is a
conflict “not of an international character.” In such a conflict,
the signatory is bound to Common Article 3’s modest
requirements of “humane[]” treatment and “the judicial
guarantees which are recognized as indispensable by civilized
peoples.”
I assume that our conflicts with the Taliban and al Qaeda
are distinct, and I agree with the court that in reading the
Convention we owe the President’s construction “great
weight.” Maj. Op. at 15. But I believe the Convention’s
language and structure compel the view that Common Article
3 covers the conflict with al Qaeda.