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HAMDAN V. RUMSFELD: THE BUSH ADMINISTRATION AND
‘THE RULE OF LAW’
DENNIS PHILLIPS
Abstract: In June 2006 the US Supreme Court announced its decision in
Hamdan v. Rumsfeld, the Court’s most notable case in its 2005-2006
Session. Widely hailed as a check on presidential power with regard to the
treatment of Guantanamo Bay detainees, Hamdan was in fact a restrained,
primarily procedural decision that represented no real threat to presidential
authority. George W. Bush went to work immediately to transform what
many took to be a judicial roadblock into a political advantage aimed at the
further expansion of executive power.
The accumulation of all powers legislative, executive and judiciary
in the same hands…may justly be pronounced the very definition of
tyranny.
James Madison, The Federalist Papers, (1788)
Commentators of all persuasions agreed that it was a landmark ruling,
certainly the most important in the Supreme Court’s 2005-06 Session.
Stanford Law School’s Kathleen Sullivan went further, describing Hamdan
v. Rumsfeld as the most significant case on presidential powers since
Richard Nixon was forced to surrender the White House tapes. Harold
Hongju Koh, dean of Yale Law School, called the case ‘a stunning
rejection’ of the Bush Administration’s handling of terrorist detainees.
Derek Jinks, author of The Rules of War: The Geneva Conventions in the
Age of Terror (2005), described the ruling as ‘a terrifically important one
for the future of law in war’. David Remes, a Washington D.C. lawyer
representing 17 Guantanamo Bay detainees, said the decision proved the
President could not set himself up ‘as judge and jury and prosecutor and
rulemaker. He is not a king.’ Taking an opposite view, former federal
prosecutor Andrew McBride complained that the Supreme Court had
adopted a ‘startlingly’ narrow view of the president’s authority: ‘it’s just
outrageous to say that a terrorist organization whose sole purpose is to
violate the laws of war should be given the protection of the Geneva
Conventions.’1
Hamdan v. Rumsfeld: Background
The Supreme Court case Hamdan v. Rumsfeld, Secretary of Defense, et al.2
involved 36-year-old Salim Ahmed Hamdan, a poorly educated, 36-year-old
AUSTRALASIAN JOURNAL OF AMERICAN STUDIES
41
Yemini national who had worked as Osama bin Laden’s driver and
bodyguard. In November 2001 Hamdan was captured by a group of Afghan
warlords and turned over to the Americans for a $US5000 bounty. After six
month in U.S. prison camps in Bagram and Kandahar, he was flown to
Guantanamo Bay, Cuba where he has remained ever since.3
During the same month that Hamdan was captured, President George W.
Bush signed an Executive Order – ‘Detention, Treatment and Trial of
Certain Non-Citizens in the War on Terrorism’ – authorising the Secretary
of Defense to appoint military commissions to try Guantanamo Bay
detainees. Trials were to be held in Guantanamo before panels composed of
three to seven military officers. Rights of the accused considered
fundamental in a civilian court, or even in a courts-martial under America’s
Uniform Code of Military Justice (UCMJ), did not apply in the proposed
military commission trials. Most notably, accused terrorists would not, of
right, be permitted to see all the evidence against them. Furthermore,
hearsay evidence, unsworn testimony and evidence obtained through
coercion were all permitted and, in extreme cases and for ‘national security’
reasons, the defendant might not even be allowed to be present at his own
trial.4 In summary, the Executive branch of the US Government had total
control over the entire judicial process. In establishing the military
commissions the Bush Administration completely shunned the Congress,
the body empowered by the Constitution to convene military tribunals.
In July 2003, after Hamdan had been held in custody for almost two years,
President Bush announced that Hamdan and five other detainees at
Guantanamo Bay would be tried by military commission. Not until a year
later, 13 July 2004, did the Government finally charge Hamdan with
‘conspiracy’ and agreeing with members of al Qaeda to attack civilians and
‘perpetrate terrorism’.5
Not surprisingly, detainee lawyers and civil libertarians soon challenged the
legality of the military tribunals. After three years of legal jockeying, on 8
November 2004, a US District Court ruled that the military commissions as
constituted by President Bush violated standards of justice stipulated under
both the UCMJ and ‘Common Article Three’ of the Geneva Conventions.6
The Administration promptly appealed.
On 15 July 2005 the three-judge panel of the US Court of Appeals for the
District of Columbia overruled the District Court, declaring that the military
commissions were legitimate, that the Geneva Conventions did not apply to
al Qaeda terrorists and that, in any event, the Conventions did not confer
‘rights and remedies’ upon individuals and hence were not judicially
enforceable. Terrorist detainees were entitled only to a ‘competent tribunal’
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and that, said the court, was precisely what the Bush Administration had
provided.7 One of the three Appeals Court judges in this case was John G.
Roberts Jr. whom Bush shortly thereafter appointed as Chief Justice of the
United States Supreme Court, replacing the late CJ William Rehnquist.
With the DC Court of Appeals clearly on its side, the Bush Administration
then made a startling move to divert all other judicial avenues of appeal. On
30 December 2005, Bush signed into law, as part of a Department of
Defense Appropriations measure, a remarkable piece of legislation titled the
‘Detainee Treatment Act’ (DTA).8 The DTA provided that, with the sole
exception of the DC Court of Appeals, ‘no court, justice, or judge shall have
jurisdiction to hear any…action against the United States…relating to any
aspect of the detention by the Department of Defense of an alien at
Guantanamo Bay’. The DC Court of Appeals was granted ‘exclusive
jurisdiction’ on all matters related to enemy combatants and military
tribunals.9
After the US Supreme Court granted certiorari on 7 November 2005 and
scheduled Hamdan v. Rumsfeld for argument, the Bush Administration filed
a motion on 13 February 2006 to dismiss certiorari, citing the DTA as their
justification.10 When the case reached the Supreme Court, the attempt to
dismiss certiorari was itself dismissed. The Supreme Court heard the case
and handed down its 5-3 decision (C.J. Roberts recused) on 29 June 2006.
Hamdan v. Rumsfeld: The Majority Opinion
In his 75-page majority opinion, Justice Stevens found that ‘conspiracy’ is
not a war crime and ‘none of the overt acts that Hamdan is alleged to have
committed violates the law of war’. Furthermore, the military commissions
created by President Bush did not meet the basic standard of justice required
by both American and international law. The commissions were deficient in
numerous respects, including acceptance of secret, hearsay and coerced
evidence, withholding of evidence, provision that a two-thirds vote was
sufficient for conviction (except in death penalty cases), appeal only to a
three-member review panel composed of Secretary of Defense appointees
(only one of which had to have prior experience as a judge), no automatic
right of appeal for any sentence of less than 10 years, and ‘final disposition’
of any case placed in the hands of the President himself. Stevens concluded
that what President Bush proposed to do through the military commissions
was to try Hamdan and other Guantanamo detainees before a tribunal that
‘arguably is without any basis in law and operates free from many of the
procedural rules prescribed by Congress for courts-martial…’.11
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43
In addition, the Court’s majority opinion also concluded that the military
commissions, as constituted, violated ‘Common Article Three’ of the
Geneva Conventions of 1949. Common Article Three (so named because it
was the same in all four of the Conventions) set a minimum standard that
prisoners of war and individuals who found themselves in Hamdan’s
position be tried by ‘a regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized peoples’.12 It
was clear, the Court said, that President Bush’s military commissions did
not meet those requirements.
Hamdan v. Rumsfeld: Dissenting Opinions
Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented, each
writing a concurring minority opinion. In the main minority opinion, Scalia
explained why he would be happy to recuse not only himself but also the
whole Court. Pointing to the DTA’s provision that ‘no court, justice or
judge’ shall have jurisdiction to consider the habeas corpus application of a
Guantanamo Bay detainee, Scalia argued the Supreme Court should not
have granted certiorari only to make ‘a mess of this statute’.13
Justice Thomas was more detailed and thoughtful if no less shocked by what
Scalia had termed the ‘audacity’ of the Court’s ‘plurality’ ruling. Thomas
began with the assertion that the majority opinion ‘openly flouts our wellestablished duty to respect the Executive’s judgment in matters of military
operations and foreign affairs’. The Court’s proper attitude on such matters,
he argued, should be one of ‘deference’, especially to the Executive branch
of the government.
More convincingly, Thomas went on to elaborate on the extent to which he
believes that, when it comes to the war on terrorism, Western law
hamstrings itself on intricate procedural matters and meticulous definitions
of such words as ‘conspiracy’. Are we somehow more law-abiding and
virtuous, he asks, if we decide we must wait until a terrorist is caught ‘in the
midst of the attack itself’, virtually inviting yet another tragedy in the form
of a mass murder of thousands of innocent citizens? If the majority’s
reasoning in this case is any guide, then the answer must be yes. The ‘rights
of the accused’ trump the victims’ right to life. Therefore, ‘The plurality’s
willingness to second-guess the determination of the political branches that
these conspirators must be brought to justice is both unprecedented and
dangerous.’ Thomas went on to argue that the ‘nebulous’ standards of the
Geneva Conventions’ Common Article Three were ‘not judicially
enforceable’ and, in any event, Common Article Three cannot be said to
apply to a terrorist detainee such as Hamdan.14
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For his part, Justice Samuel Alito, the Court’s newest member, saw nothing
at all wrong with the military commissions and, in effect, wondered what
the fuss was all about.15
What Hamdan v. Rumsfeld Did Not Do
In the flurry of press reports following the public release of the Supreme
Court’s ruling in Hamdan v. Rumsfeld, it was easy to lose sight of the fact
that, in many respects, the decision was quite conservative and restrained.
On the day the decision was announced, the respected Supreme Court
reporter Lyle Denniston wrote at length on what Hamdan did not decide.
Denniston began by pointing out that the Court did not address the two most
important questions to arise from the war on terrorism. The first is ‘whether
the country is, indeed, at “war” in some constitutional sense’, and the
second is ‘whether the President has authority, acting all alone, to decide
what measures are needed to respond to the continuing terrorism threat’.16
Beyond these two fundamental questions, Denniston argued, the Hamdan
ruling was notable for ‘a host of other undecided issues’. Chief among them
was the scope and legality of several aspects of the DTA, including the
validity of pre-Act habeas corpus challenges, certain interrogation and
detention provisions, etc. Furthermore, Hamdan did not decide whether
detainees linked to al Qaeda are entitled to ‘the full protections of the
Geneva Conventions…’. The Court limited its ruling to Common Article
Three and, even there, the majority opinions focused on the legality of the
Bush Administration’s military commissions and remained silent, for
example, on the ‘no-torture protections’ of the Conventions.
The Court also did not address how long the Government may hold a
detainee without charge or trial. Certainly the Hamdan ruling did not order
the closing of Guantanamo Bay, or the release of any detainee. Nor did it
shorten the detention time of any detainee. In fact, by aborting the military
commission proceedings that had already commenced against a handful of
alleged terrorists who, like Hamdan, had actually been formally charged, the
decision undoubtedly further delayed the legal process. For Australian
detainee David Hicks it meant an even more prolonged period in what could
only be described as ‘legal limbo’.17
Nor did the Court specify what a ‘regularly constituted court’ must be. The
majority opinions agreed that military courts-martial under the provisions of
the UCMJ is a regularly constituted court, but then so did Hamdan himself.
He and his legal team had not objected here to trial by courts-martial. In
addition to all of the above, the Hamdan ruling did not address definitively
the nature and types of charges that may be tried before a military
AUSTRALASIAN JOURNAL OF AMERICAN STUDIES
45
commission. Even on the ‘conspiracy’ charge the concurring majority
opinions were not in agreement.
Essentially all the Court decided in its Hamdan ruling was that the military
commissions created by the Bush Administration failed to meet the basic
procedural requirements specified by both American and international law
and that they lacked specific authorisation from Congress. This was
significant less for what the Court decided than for what the Bush
Administration had done in creating the commissions. By ignoring the
Congress and trying to sideline the judiciary, the President had challenged
the rule of law and the balance-of-power provisions that constitute the very
bedrock of the American political system. Going out of his way to
acknowledge Executive powers in times of national emergency, Justice
Stevens stated explicitly that the Court was not questioning the
Government’s power to detain Hamdan ‘for the duration of active
hostilities’ (which, in the war on terrorism, seems to mean indefinitely).
Justices Breyer and Kennedy concurred, virtually inviting the Bush
Administration to go back to Congress to get proper advice and consent on
the jurisdiction and procedures applicable to appropriate legislation for a
reconstituted set of military commissions that would meet the basic
standards required of ‘a regularly constituted court’.18
Hamdan v. Rumsfeld: The Consequences
The Bush Administration wasted no time in launching a two-pronged,
‘sweet-and-sour’, offensive in response to the Supreme Court’s Hamdan
ruling. On the day the decision was announced President Bush adopted what
appeared to be a conciliatory position, stating that he took the decision
‘seriously’ and he intended to work with Congress to seek a solution. At the
same time, the Republican Party took a much harder line in an attempt to
‘wrest a political victory from a legal defeat’.19
The President clearly saw his Party’s majority numbers in both the House
and the Senate as potentially the easiest way to reinvent his military
tribunals. Immediately after the Fourth of July break, the House and Senate
Armed Services committee and the Senate Judiciary Committee opened
hearings on the Hamdan ruling and the future structure of the
Administration’s military commissions. A few days later Deputy Defense
Secretary Gordon England released a Department of Defense (DOD)
memorandum reversing an Administration policy that had prevailed for
more than four years on treatment of terror detainees. England’s
announcement negated that part of a Presidential Order of 7 February 2002
specifically stating that certain provisions of the Geneva Conventions did
‘not apply to either al Qaeda or Taliban detainees’. The White House
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followed the release of England’s memorandum with one of its own,
admitting terror detainees now had legal rights under the Geneva
Conventions and that this policy switch was a direct result of the Supreme
Court’s ruling in Hamdan.20
At the same time, however, Pentagon lawyers testified before Congress that
Gordon England’s memo (and presumably the White House statement
supporting it) did not represent a shift in policy. According to DOD leading
counsel Daniel Dell’Orto, the US military had always observed the Geneva
Conventions and had always treated detainees humanely. Now, all Congress
needed to do to satisfy the Court’s Hamdan ruling was simply to supply the
missing legislation, i.e. ratify the Administration’s existing military
tribunals and ‘move on’. Dell’Orto was in a hurry. As he put it, ‘I don’t
want a soldier when he kicks down a door in a hut in Afghanistan searching
for Osama bin Laden to have to worry about…whether he’s got to advise
[bin Laden] of some rights …’.21
The testimony of Daniel Dell’Orto and others convinced The New York
Times and other close observers of the Court’s ruling that the President’s
idea of cooperation was ‘purely cosmetic. …the administration made it clear
that it merely wanted Congress to legalize President Bush’s illegal actions –
to amend the law to negate the court’s ruling instead of creating a system of
justice within the law.’ From start to finish in the war on terrorism,
concluded a Times’ editorial, Administration policy has ‘had far less to do
with fighting Osama bin Laden than with expanding presidential power’.22
Quite apart from the President’s intentions, the obvious conflict between
England’s memo and Dell’Orto’s testimony revealed long-standing and
deep divisions within the Pentagon on the subject of detainee treatment.
Indeed, many in the Pentagon, including military lawyers and JAGs (judge
advocates general) welcomed the Court’s Hamdan decision. Colonel David
Wallace, a West Point law professor, argued that commanders in the field
would be pleased with the Court’s ruling because it reinforced what many of
them had advocated all along, namely clear and faithful compliance with
Geneva Convention requirements. According to Wallace, the Supreme
Court’s pronouncement would get rid of the Administration’s dodgy rules
governing the treatment of so-called ‘unlawful combatants’ and, hopefully,
bring current practice into line with the best in US military tradition.23
Fortunately, leading Senate Republicans – Judiciary Committee Chairman
Arlen Specter (R.-Pa.), Armed Services Chairman John Warner (R.-Va.),
Lindsey Graham (R.-S.C.) and John McCain (R.-Ariz.) – all challenged the
‘merely legitimise what’s already there’ approach. They proposed, and not
for the first time, that Congress begin its legislative work with the existing
AUSTRALASIAN JOURNAL OF AMERICAN STUDIES
47
UCMJ and the rules governing normal courts-martial and then adapt those
rules to the exigencies of the war on terrorism.24
In the immediate aftermath of the Hamdan ruling, there was further
evidence that the President’s idea of cooperation was more cosmetic than
real. The Bush Administration had run into considerable opposition on
another matter when in December 2005 The New York Times revealed that,
after the terrorist attacks on 11 September 2001, the Government had
instituted a secret and widespread, warrantless, domestic surveillance
program as part of its war on terror.25 This revelation was followed by
others focusing on ‘classified surveillance programs and huge
unprecedented databases used to monitor domestic and international phone
calls, faxes, e-mails and bank transfers’. And all this while six European
governments and three international bodies were investigating secret prisons
run by the CIA.26
Legal challenges to the surveillance program emerged from a wide range of
sources, but the President steadfastly refused to submit the program to any
form of judicial review. However, two weeks after the Hamdan decision,
Bush cut a deal with Senate Judiciary Committee Chairman Specter
whereby the warrantless surveillance program would be submitted to a
secret court created under the 1978 Foreign Intelligence Surveillance Act
(FISA). All lawsuits challenging the program were to be funnelled through
the same court. The New York Times complained that Specter’s bill was, in
fact, not binding on the President and that it stripped the federal courts of
‘the right to hear legal challenges to the president’s wiretapping authority’.27
Leading Democrats agreed, describing this presidential ‘concession’ as
another political trick. Representative Jane Harman (D.-Cal.), the ranking
Democrat on the House Intelligence Committee, said that Bush’s concession
amounted to little more than an attempted ‘end run around the Foreign
Intelligence Surveillance Act and provides the president a blank check to
conduct warrantless surveillance of Americans’.28
Tricky or not, the President’s initiatives appeared to be the ‘sweet’ side of
the Republican counter-attack when compared to the other and more
aggressive prong of Administration strategy which was played out by less
restrained Party leaders, supported by numerous conservative columnists
and talk-show hosts who sought whatever advantage they could find in
converting a legal setback into a political weapon. Statements by leading
Democrats praising the Supreme Court’s Hamdan decision as a victory for
the rule of law were condemned by prominent Republicans as proving the
Democrats were ‘soft on terrorism’. When House Minority Leader Nancy
Pelosi (D., Cal.) observed that the Supreme Court in Hamdan had affirmed
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‘the American ideal that all are entitled to the basic guarantees of our justice
system’, House Majority Leader John Boehner (Rep., Oh.) accused her of
seeking ‘special privileges for terrorists’.29
With the likelihood of a prolonged Congressional struggle over military
commission legislation, and with a crucial mid-term election looming in
November, the temptation to ‘demagogue the issue’ was overpowering.
Describing House-Senate tension as ‘the main dynamic in Congress’ during
2006, Representative Barney Frank (D., Mass.) predicted trouble ahead
because, ‘The House thinks the Senate is a cowardly lion and the Senate
thinks the House is the scarecrow without a brain’.30
Hamdan v. Rumsfeld and the Court’s future
Hamdan v. Rumsfeld was a restrained but significant ruling on the legality
of President’s Bush’s special military tribunals, but it was also important for
another reason that received too little attention at the time – the closeness of
the vote. The case was decided by an unusual 5-3 count because Chief
Justice John Roberts recused himself. We can safely assume from his vote
on Hamdan when he was still serving on the Washington DC Court of
Appeals that, had he not recused, Roberts would have voted with Scalia,
Thomas and Alito in dissent, yielding a 5-4 result that mirrors many
previous votes on what has become one of the most clearly and closely
divided Courts of the modern era.
For the past quarter-century – at least since Ronald Reagan assumed the
presidency in 1981 – neo-conservative politicians have made quite clear
their determination to remodel the Supreme Court away from the judicial
‘activism’ of the 1950s and 1960s (during the tenure of Chief Justice Earl
Warren) and restore it to the alleged judicial ‘self-restraint’ of an earlier era.
According to the neo-conservative mantra, judges are not to ‘legislate from
the bench’ or trod where only legislators and presidents are entitled to go.
Judges, particularly those serving on the US Supreme Court, are to interpret,
not make, the laws and abide strictly by the ‘original intent’ of the Founding
Fathers.
All of this appears convincing enough until one realises that today’s new
breed of conservative judges are a far cry from genuine conservatives.
Traditional conservatives are, by definition, cautious, distrustful of large
visions, and believers in incremental and not revolutionary change. Neoconservatives, by contrast, are revolutionary in their conservatism. They talk
about judicial ‘self-restraint’ and advocate abiding by the ‘original intent’ of
the Founders, but in practice they frequently throw caution to the winds and
insist on sweeping change. As Bruce Ackerman, professor of law and
AUSTRALASIAN JOURNAL OF AMERICAN STUDIES
49
political science at Yale has explained, the American political and
ideological divide today is not between liberalism and conservatism, but
between conservatism and neo-conservatism and there is a great deal at
stake in this struggle.31
Throughout their six-year tenure to date, key members of the Bush
Administration, led by Vice-President Dick Cheney and his chief-of-staff,
David Addington, have worked hard to tilt constitutional separation of
powers doctrine heavily toward expanded Executive authority. Cheney and
Addington have long believed that the real lesson of Watergate and the Irancontra scandal was that the president needed more authority and that
Congress and the courts constituted an obstacle in the path to the expansion
of presidential power.32
David Addington was the legal mind behind what came to be known as the
‘New Paradigm’, namely that ‘the President, as Commander-in-Chief, has
the authority to disregard virtually all previously known legal boundaries if
national security demands it’. Statutes prohibiting torture, secret detention,
and warrantless surveillance can be cast aside with impunity. Scott Horton,
a professor at Columbia Law School, has observed that Addington and a
small group of influential Administration lawyers want to ‘overturn two
centuries of jurisprudence defining the limits of the executive branch’. Jane
Harmon, the aforementioned senior Democrat on the House Intelligence
Committee, says that Cheney and Addington are essentially focused on the
idea of restoring the Nixon presidency.33
Examining their judicial record, it is obvious that, with certain notable
exceptions, neo-conservative justices like Scalia, Thomas, Alito and Roberts
have clearly demonstrated their willingness to ‘restore’ limited government
by striking down many laws protecting workers, minorities and the
environment. Like Nixon, they believe that so-called ‘liberal, activist’
judges have gone too far in extending due process rights to minorities, gays,
consumers, criminals and other unsavoury elements in society. Justice
Scalia has been quite outspoken in his opposition to the ‘liberal’ courts of
the past. When the US Supreme Court struck down criminal sodomy
statutes in 16 states as an invasion of personal liberty and privacy, Antonin
Scalia charged that the Court had sold out to the ‘homosexual agenda’.
Given the opportunity, he and his neo-conservative brethren on the Court
would nullify many basic civil and criminal protections, limit the power of
the federal government to regulate business and limit the power of the
federal courts to check the exercise of Executive authority. Bruce Ackerman
has concluded that, when it comes to the neo-conservative push to gain a
majority on the US Supreme Court, what we have witnessed in recent years,
is ‘a wholesale attack on the premises of 20th Century constitutionalism’.34
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In Hamdan v. Rumsfeld the Court came perilously close to ratifying one of
the neo-conservatives’ major goals – an outright expansion of presidential
power. In this important case, the Court was but one vote away from
approving the President’s illegal military commissions and today the
President himself is but one appointment away from giving the Supreme
Court a neo-conservative majority – one that would, in this case at least,
have granted George W. Bush a completely free hand in his treatment of
Guantanamo Bay (and other) detainees.35
Of the five justices who made up the majority in Hamdan, Mr. Justice
Stevens is 86 years old, Justice Ruth Bader Ginsburg is 73, Justice Kennedy
is 70, Justice Breyer is 68 and Justice Souter is 67. It is quite possible that
President Bush, who has already made two Supreme Court appointments
(Roberts and Alito) and who has two more years in office, may well have
the opportunity to make a third appointment – one that in all probability
would create a neo-conservative majority.36 In that event, Hamdan v.
Rumsfeld will be remembered less as a landmark case checking presidential
power than as one of the last, restrained protests of a Court slowly but
certainly yielding both its Constitutional role and its independence to ever
more assertive Executive pressure.
Afterword
The above article was submitted to the Australasian Journal of American
Studies in July 2006. After several months of intensive personal lobbying
with key members of Congress, George W. Bush achieved the
Congressional authorisation he believed he needed to negate the Supreme
Court’s judgment in Hamdan v. Rumsfeld. The detainee treatment bill
passed by Congress in late September granted the President power to
identify enemies, imprison them indefinitely and interrogate them (banning
only the most extreme treatment) – and all this without the full court
reviews normally afforded ordinary prisoners. On 30 September The New
York Times noted that the new law ‘will give the president more power over
terrorism suspects than he had before the Supreme Court decision...in
Hamdan v. Rumsfeld …’ Further legal challenges seemed inevitable.
ENDNOTES
1
Kathleen Sullivan from ‘The Jim Lehrer News Hour’, PBS, 4 July 2006; Hongju Koh quote
in Neil Lewis, ‘Detainees may test reach of Guantanamo ruling’, The New York Times, 1 July
2006; Jinks in Derek Jinks, ‘Court rejects Guantanamo tribunals’, The Washington Post, 29
June 2006; Remes and McBride quoted in Warren Richey, ‘Supreme Court rejects military
tribunals’, The Christian Science Monitor, 30 June 2006.
2
Hamdan v. Rumsfeld, Secretary of Defense, et al. 548 U.S._(2006) at:
http://supremecourtus.gov/opinions/o5pdf/05-184pdf
AUSTRALASIAN JOURNAL OF AMERICAN STUDIES
3
51
For a profile of Salim Hamdan, see Jonathan Mahler, ‘The Bush Administration vs. Salim
Hamdan’, The New York Times Magazine, 8 January 2006. Mahler is writing a book on the
Hamdan case. The US Naval Station at Guantanamo Bay, Cuba consists of a 116 square
kilometre area retained by the United States under a perpetual lease arrangement dating to a
1903 treaty negotiated in the wake of the Spanish-American War of 1898. For an interesting,
brief history, see the Wikipedia entry for ‘Guantanamo Bay Naval Base’.
4
Linda Greenhouse, ‘Justices, 5-3, Broadly Reject Bush Plan to Try Detainees’, The New
York Times, 30 June 2006
5
See text of Hamdan v. Rumsfeld (ft. 2 above), ‘Syllabus’ and Justice John Paul Stevens’
majority opinion following. Stevens’ opinion cited hereafter as: Stevens, Hamdan, followed
by the page number from Stevens’ text opinion.
6
Stevens, Hamdan, p. 6. See also case ‘Syllabus’, pp. 1-2.
7
Salim Ahmed Hamdan v. Donald H. Rumsfeld, United States Secretary of Defense, et al., US
Court of Appeals for the District of Columbia Circuit, 15 July 2005, No. 04-5393.
8
http://www/justicescholars.org/pegc/detainee_act_2005.html
9
Ibid., Sec. 1005.
10
Stevens, Hamdan, pp. 7-8.
11
Ibid., pp.25, 35-39, 46-53, 72.
12
Quoted in Ibid., pp. 67-68. See also pp. 57-62. For ‘Common Article Three’ see,
http://www.unhchr.ch/html/menu3/b/92.htm
13
Scalia, J., dissenting, in Hamdan v. Rumsfeld, pp. 1-5.
14
Thomas, J., dissenting, Ibid., pp. 1-3, 29-30, 40-49.
15
Alito, J., dissenting, Ibid., pp. 1-10.
16
For this and the following Denniston quotations, see Lyle Denniston, ‘Analysis: what
Hamdan did not decide’, SCOTUSblog, 29 June 2006 at http://www.scotusblog.com
(accessed on 1 July 2006). In Rasul v. Bush in 2004 the Supreme Court ruled that American
courts had the authority to decide whether foreign terror suspects held at Guantanamo Bay,
Cuba had been rightfully detained.
17
For a blistering attack on the treatment of Hicks, especially by the Australian Government,
see Marian Wilkinson, ‘US decision condemns Howard’s way, too’ in The Sydney Morning
Herald 1-2 July 2006, p. 4.
18
Stevens, Hamdan, p. 72; Breyer, J., concurring, p. 1; Kennedy, J., concurring, p. 10.
19
Michael Abramowitz and Jonathan Weisman, ‘GOP seeks advantage in ruling on trials’,
The Washington Post 1 July 2006.
20
Mark Mazzetti and Kate Zernike, ‘White House says terror detainees hold basic rights’, The
New York Times 12 July 2006. See also, Scott Shane, ‘Terror and power: Bush takes a step
back’, Ibid.
21
Jonathan Weisman, ‘Battle looms in Congress over military tribunals’, The Washington
Post 13 July 2006.
22
‘The real agenda’, The New York Times, 16 July 2006.
23
Thomas Ricks, ‘US troops will benefit from clarity, experts say’, The Washington Post, 12
July 2006.
24
Weisman, ‘Battle looms’, op. cit.
25
James Risen and Eric Lichtblau, ‘Bush secretly lifted some limits on spying in US after
9/11, officials say’, The New York Times, 15 December 2005.
26
Dana Priest, ‘Rethinking embattled tactics in terror war’, The Washington Post 11 July
2006.
27
‘The real agenda’, op. cit.
28
Charles Babington and Peter Baker, ‘Bush compromises on spying program’, The
Washington Post 14 July 2006.
29
Quoted in Abramowitz and Weisman, ‘GOP seeks advantage’, op. cit. In Australia,
columnist Janet Albrechtsen joined in the condemnatory chorus. She described the Supreme
Court’s majority opinion in Hamdan as written by ‘a few judges dosed up on judicial
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AUSTRALASIAN JOURNAL OF AMERICAN STUDIES
arrogance’. She accused the Court of not having to ‘defer to bothersome legislatures’ (when,
in fact, it was to the US Congress that the Court had referred the President). Albrechtsen then
concluded that rulings such as this one from judges ‘unaccountable for the consequences of
their decisions produces some downright dangerous outcomes for the rest of us’. See Janet
Albrechtsen, ‘Sob stories won’t change David Hicks’s legal status’, The Australian 12 July
2006.
30
Weisman, ‘Battle looms in Congress’, op. cit.
31
Bruce Ackerman, ‘The art of stealth’, London Review of Books 27.4, 17 February 2005 at:
http://www.lrb.co.uk/v27/n04/acke01/_.html
32
Jane Mayer, ‘The hidden power: the legal mind behind the White House’s war on terror’,
The New Yorker 3 July 2006 at:
http://www.newyorker.com/fact/content/articles/060703fa_fact1
33
Horton and Harmon quoted in Ibid. Even as the Supreme Court ruled on Hamdan, the
Senate was considering President Bush’s appointment of Pentagon general counsel William
Haynes II as a judge to the US Court of Appeals, Fourth Circuit. Haynes was one of the
architects of the Administration’s much criticised policies on detainee interrogation and
torture. Twenty retired military officers publicly opposed Haynes’ confirmation on the
grounds that he had ‘compromised military values, ignored federal and international law and
damaged America’s reputation and world leadership’. Quoted in ‘Abu Ghraib rewarded’, The
New York Times (editorial), 17 July 2006.
34
Ackerman, ‘The art of stealth’, op. cit.
35
A vote of 4-4, rather than 5-3, would have sustained the decision of the Washington DC
Court of Appeals.
36
Bruce Ackerman, ‘The stealth revolution, continued’, London Review of Books, 38.3, 9
February 2006 at: http://www.lrb.co.uk/v28/no03/acke01_.html Some authorities believe
that line has already been crossed, citing as evidence the Supreme Court’s 5-4 decision in
Bush v. Gore (2000) that awarded the White House to the candidate who lost the popular
vote. See Charles Tiefer, Veering Right: How the Bush Administration Subverts the Law for
Conservative Causes, University of California Press, Berkeley, 2004, pp. 30-34, 142, 303-04.