HAMDAN V. RUMSFIELD

Syllabus

Authority to convene military commissions in appropriate circumstances, see, e.g., id, at 518, there is nothing in the AUMF?s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21. Cf. Ex parte Yerger, 8 Wall. 85, 105.

Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Art. 21 or the AUMF, was enacted after the President convened Hamdan?s commission, it contains no language authorizing that tribunal or any other at Guant?namo Bay. Together, the UCMJ, the AUMF and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances...justified under the Constitution and laws, including the law of war. Absent a more specific congressional authorization, this Court?s task is, as it was in Quirin, to decide whether Hamdan's military commission is so justified...

4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949. Pp. 49?72.

(a) The commission?s procedures, set forth in Commission Order No. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to ?close.? Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and ?other national security interests.? Appointed military defence counsel must be privy to these closed sessions, but may, at the presiding officer?s discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan's commission permit the admission of any evidence that, in the presiding officer?s opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other ?protected information,? so long as the presiding officer concludes that the evidence is ?probative? and that its admission without the accused?s knowledge would not result in the denial of a full and fair trial. Pp. 49?52.

(b) The Government objects to this Court?s consideration of a procedural challenge at this stage on the grounds, inter alia, that Hamdan will be able to raise such a challenge following a final decision under the DTA, and that there is no basis to presume, before the trial has even commenced, that it will not be conducted in good faith and according to law. Cite as: 548 US.

Syllabus

Hamdan apparently is not subject to the death penalty (at least as matters now stand) and may receive a prison sentence shorter than 10 years, he has no automatic right to federal-court review of the commission?s ?final decision? under DTA ?1005(e)(3). Second, there is a basis to presume that the procedures employed during Hamdan's trial will violate the law: He will be, and indeed already has been, excluded from his own trial. Thus, review of the procedures in advance of a ?final decision? is appropriate. Pp. 52?53.

(c) Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan's commission trial are illegal....