In a 5-3 decision written by Justice Stevens, the Supreme Court ruled that the military commissions set up by the Bush Administration to try detainees at Guantanamo Bay were illegal because they lacked the protections required under the Geneva Conventions and the United States Uniform Code of Military Justice (UCMJ). The Court decided to consider Salim Ahmed Hamdan’s habeus corpus petition despite legislation by Congress preventing the Supreme Court from hearing cases of accused combatants before their military commissions takes place. The Court reasoned that, because Hamdan’s case was pending when the prohibitive legislation was passed, his case should not be covered by the legislation. Justices Scalia, Thomas, and Alito each wrote dissenting opinions, and Chief Justice Roberts recused himself because he had previously ruled on the case as a member of the Court of Appeals for the District of Columbia Circuit.
This case is activist for several reasons. First, the Court contorts the text of Congressional legislation to give itself the authority to hear the case. The Detainee Treatment Act, passed by Congress on December 30, 2005, provides: “[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” This provision was to “take effect on the date of the enactment of this Act.” Contrary to the Court’s reasoning, this Act is not ambiguous as between pending and future cases. As Justice Scalia writes in his dissent, “[i]t prohibits any exercise of jurisdiction, and it became effective as to all cases [on] December 30.” Justice Scalia further identifies “[a]n ancient and unbroken line of authority attest[ing] that statutes ousting jurisdiction unambiguously apply to cases pending at their effective date.”
The Court also contorted the text of both the UCMJ and the Geneva Conventions in order to restrict the power of the President to establish military commissions when he deems necessary. Article 36 of the UCMJ authorizes the President to establish procedures for military commissions “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.” Justice Thomas argues that “[f]ar from constraining the President’s authority, Article 36 recognizes the President’s prerogative to depart from the procedures applicable in criminal cases whenever he alone does not deem such procedures ‘practicable.’”
The Court likewise uses the requirement under Common Article 3 of the Geneva Conventions that offenders be tried by a “regularly constituted court” as a reason to invalidate the military commissions. While Article 3 does not detail the way in which a “regularly constituted court” must be appointed, set up, or established, the Court gives its own meaning to the term, concluding that its structure and composition should not deviate from conventional court-martial standards. Justice Alito takes issue with the Court’s subjective reading of the text, arguing that “[t]here is no reason why a court that differs in structure or composition from an ordinary military court must be viewed as having been improperly constituted.” He notes that “[t]ribunals that vary significantly in structure, composition, and procedures may all be ‘regularly’ or ‘properly’ constituted.”
The Court also plays legislator, creating a right of habeas corpus for alien enemies who, at no relevant time and in no stage of his captivity, have been within the territorial jurisdiction of the United States. While the Constitution guarantees this right to United States citizens and those detained within the United States, it does not extend it to alien enemies who are detained outside the United States.
Finally, this decision is an act of judicial imperialism on the part of the majority, for it second-guesses a decision by the President in an area where he should be given deference, especially as he was acting with the consent of Congress. Justice Thomas writes that “military and foreign policy judgments are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.” It was therefore beyond the duty of the Court to hear this case, let alone to come to a decision which undermines the national security decisions of the Commander in Chief as authorized by Congress.