Hamdan v. Rumsfeld
Justice Stevens opinion began with the issue of jurisdiction. He denied the U.S. government’s motion to dismiss under section 1005 of the Detainee Treatment Act of 2005. The DTA gave the D.C. Circuit court of appeals exclusive jurisdiction to review decisions of cases being tried by a military commission. Congress did not include language in the DTA that might have specified Supreme Court jurisdiction, making the government’s argument to the court unpersuasive. The government’s argument that Schlesinger v. Councilman, 420 U.S. 738(1975), precludes Supreme Court review was similarly rejected. Councilman applied to a member of the U.S. military who was being tried before a military court-martial. Since Hamdan was not a member of the U.S. military, he would be tried before a commission and not a court-martial. With Ex parte Quirin the court recognized its duty to enforce Constitutional protections by convening a special term and expediting review of a trial by military convention. The opinion stated that, because DTA did not bar it from considering the petition, it was unnecessary to decide whether laws unconditionally barring habeas corpus petitions would unconstitutionally violate the Suspension Clause.
The opinion next addressed the substantive issue of the case. It didn’t decide whether the President possessed the Constitutional power to convene military commissions. Even if he possessed such power, those tribunals would either have to be sanctioned by the “laws of war”, as highlighted by Congress in Article 21 of the Uniform Code of Military Justice, or authorized by a statute. As for authorization by statute there is nothing in the Authorization for Use of Military Force pertaining to the President’s was powers beyond those enumerated in Art. 21. The AUMF, UCMJ and the DTA acknowledge the president’s authority to convene military commissions only where justified by the exigencies of war, but it still operates within...