Brief Fact Summary. Hamdan was charged with conspiracy to commit offences triable by a military commission and was granted Habeas Corpus to dispute this charge.
Synopsis of Rule of Law. Prisoners of war may not be tried in military commissions that do not afford the rights prescribed in the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions
Far from making the requisite substantial showing, the Government has failed even to offer a merely colorable case for inclusion of conspiracy among those offenses cognizable by law-of-war military commission.View Full Point of Law
Issue. Whether Hamdan committed a crime triable by military commissions and whether that commission is constitutional.
Held. No. The President at a time of war has the power to try and punish crimes against the laws of nations. This is the constitutional provision used to show that military commission tribunals are legal. However, this court feels that only certain circumstances allow for offense to be triable in a military commission. Those offenses are; 1 in place of civilian courts when marital law has been declared, 2 temporary military government in occupied territory or in lands where there is no government to try cases, and 3 when the crime is an incident to the conduct of war which violate the laws of war. The court states that only the 3rd type applies, however the charge of conspiracy is not an incident to the conduct of war. Incidents of war are accusations of actual conduct, not the attempt or planning of such conduct. Inchoate criminal charges belong in a federal court or court martial proceeding. Secondly this commission violates not only constitutional rights afforded an individual, but also rules established by the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. A military commission tribunal must have rules and regulations that do not fall short of at least a military court marshal proceeding. The lack of presence and ability to see the evidence and witness before you is not constitutional. Therefore Hamdan should not be tried in front of this commission. This court reversed the commission’s charges of conspiracy.
Concurrence. The President does not have a blank check to try prisoners of war as he pleases. While there is a large separation of powers issue here, Congress has specifically legislate the UCMJ to prescribe the rules for such commissions to avoid these violations and we will not disagree with it.
Discussion. This court decided it will not analyze the President’s Power to create Military Commissions at a time of war, but state that these commissions; however, do have guidelines and must not violate our constitution or any international conventions we have signed into law.