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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
Facts.
It is alleged that between the years of 1996 and 2001 Hamdan was engaged in actions in preparation of the September 11, 2001 attacks against the United States. Militia forces in Afghanistan that were fighting the Taliban captured Hamdan and turned him over to the U.S. Military in 2002. He was transferred to Guantanamo Bay. A United States occupied Military base. After a year of being detained without any charges being brought against him, President Bush declared that he had committed acts triable by a military commission. He was charged with one count of conspiracy to commit offenses triable by the commission. This commission is created by military necessity, not by statute or constitutional power. This commission has a presiding officer and at least three other members. The accused is afforded military counsel, and a copy of the charges against him. This hearing may be conducted outside the presence of the accused for the accused does not have a right to see all evidence or hear all witness statement against him for purposes of national security. After being tried and convicted of conspiracy, Hamdan apply for a writ of Habeas Corpus stating he deserved all the constitutional rights afforded to him at trial, the writ was granted.
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.
