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November 8, 2004.


The opinion of the court was delivered by: JAMES ROBERTSON, District Judge


Salim Ahmed Hamdan petitions for a writ of habeas corpus, challenging the lawfulness of the Secretary of Defense's plan to try him for alleged war crimes before a military commission convened under special orders issued by the President of the United States, rather than before a court-martial convened under the Uniform Code of Military Justice. The government moves to dismiss. Because Hamdan has not been determined by a competent tribunal to be an offender triable under the law of war, 10 U.S.C. § 821, and because in any event the procedures established for the Military Commission by the President's order are "contrary to or inconsistent" with those applicable to courts-martial, 10 U.S.C. § 836, Hamdan's petition will be granted in part. The government's motion will be denied. The reasons for these rulings are set forth below. BACKGROUND

Hamdan was captured in Afghanistan in late 2001, during a time of hostilities in that country that followed the terrorist attacks in the United States on September 11, 2001 mounted by al Qaeda, a terrorist group harbored in Afghanistan. He was detained by American military forces and transferred sometime in 2002 to the detention facility set up by the Defense Department at Guantanamo Bay Naval Base, Cuba. On July 3, 2003, acting pursuant to the Military Order he had issued on November 13, 2001,*fn1 and finding "that there is reason to believe that [Hamdan] was a member of al Qaida or was otherwise involved in terrorism directed against the United States," the President designated Hamdan for trial by military commission. Press Release, Dep't of Defense, President Determines Enemy Combatants Subject to His Military Order (July 3, 2003), In December 2003, Hamdan was placed in a part of the Guantanamo Bay facility known as Camp Echo, where he was held in isolation. On December 18, 2003, military counsel was appointed for him. On February 12, 2004, Hamdan's counsel filed a demand for charges and speedy trial under Article 10 of the Uniform Code of Military Justice. On February 23, 2004, the legal advisor to the Appointing Authority*fn2 ruled that the UCMJ did not apply to Hamdan's detention. On April 6, 2004, in the United States District Court for the Western District of Washington, Hamdan's counsel filed the petition for mandamus or habeas corpus that is now before this court. On July 9, 2004, Hamdan was formally charged with conspiracy to commit the following offenses: "attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism." Dep't of Defense, Military Commission List of Charges for Salim Ahmed Hamdan, Following the Supreme Court's decision on June 28, 2004, that federal district courts have jurisdiction of habeas petitions filed by Guantanamo Bay detainees, Rasul v. Bush, 124 S. Ct. 2686 (2004), and the Ninth Circuit's decision on July 8, 2004, that all such cases should be heard in the District of the District of Columbia, Gherebi v. Bush, 374 F.3d 727 (9th Cir. 2004), the case was transferred here, where it was docketed on September 2, 2004.*fn3 Oral argument was held on October 25, 2004.

  Hamdan's petition is stated in eight counts. It alleges the denial of Hamdan's speedy trial rights in violation of Article 10 of the Uniform Code of Military Justice, 10 U.S.C. § 810 (count 1); challenges the nature and length of Hamdan's pretrial detention as a violation of the Third Geneva Convention (count 2) and of Common Article 3 of the Geneva Conventions (count 3); challenges the order establishing the Military Commission as a violation of the separation of powers doctrine (count 4) and as purporting to invest the Military Commission with authority that exceeds the law of war (count 7); challenges the creation of the Military Commission as a violation of the equal protection guarantees of the Fifth Amendment (count 5) and of 42 U.S.C. § 1981 (count 6); and argues that the Military Order does not, on its face, apply to Hamdan (count 8).

  Although Judge Lasnik (W.D. Wash.) ordered the respondents to file a "return," Order Granting Motion to Hold Petition in Abeyance (W.D. Wash. No. 04-0777) (May 11, 2004), and although the motion to dismiss now before this court is styled a "consolidated return to petition and memorandum of law in support of cross-motion to dismiss," no formal show cause order has issued, nor have the respondents ever filed a factual response to Hamdan's allegations. An order issued October 4, 2004 [Dkt # 26] by Judge Joyce Hens Green, who is coordinating and managing all of the Guantanamo Bay cases in this court, provided that "[r]espondents are not required . . . to file a response addressing enemy combatant status issues . . . or a factual return providing the factual basis for petitioner's detention as an enemy combatant, pending further order of the Court."*fn4 The absence of a factual return is of no moment, however. The issues before me will be resolved as a matter of law. The only three facts that are necessary to my disposition of the petition for habeas corpus and of the cross-motion to dismiss are that Hamdan was captured in Afghanistan during hostilities after the 9/11 attacks, that he has asserted his entitlement to prisoner-of-war status under the Third Geneva Convention, and that the government has not convened a competent tribunal to determine whether Hamdan is entitled to such status. All of those propositions appear to be undisputed. ANALYSIS

  1. Abstention is neither required nor appropriate.

  The well-established doctrine that federal courts will "normally not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted," Schlesinger v. Councilman, 420 U.S. 738 (1975), is not applicable here. Councilman involved a court-martial, not a military commission. Its holding is that, "when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, the federal district courts must refrain from intervention. . . ." Id. at 758. In reaching that conclusion, the Court found it necessary to distinguish its previous decisions in United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955) (civilian ex-serviceman not triable by court-martial for offense committed while in service), Reid v. Covert, 354 U.S. 1 (1957) (civilian dependent not triable by court-martial for murder of service member husband overseas in peacetime), and McElroy v. United States. ex rel. Guagliardo, 361 U.S. 281 (1960) (civilian employees of armed forces overseas not subject to court-martial jurisdiction for noncapital offenses), none of which required exhaustion. The Councilman Court also repeated its observation in Noyd v. Bond, 395 U.S. 683, 696 n. 8 (1969), that it is "especially unfair to require exhaustion . . . when the complainants raised substantial arguments denying the right of the military to try them at all." A jurisdictional argument is just what Hamdan present here.

  Controlling Circuit precedent is found in New v. Cohen, 129 F.3d 639, 644 (D.C. Cir. 1997). In that case, following the Supreme Court's decision in Parisi v. Davidson, 405 U.S. 34 (1972), the Court of Appeals noted that, although the abstention rule is often "`framed in terms of `exhaustion' it may more accurately be understood as based upon the appropriate demands of comity between two separate judicial systems.'" Id. at 642, (quoting Parisi, 405 U.S. at 40).

  None of the policy factors identified by the Supreme Court as supporting the doctrine of comity is applicable here. See Parisi, 405 U.S. at 41, discussed in New, 129 F.3d at 643. In the context of this case, according comity to a military tribunal would not "aid[] the military judiciary in its task of maintaining order and discipline in the armed services," or "eliminate[] needless friction between the federal civilian and military judicial systems," nor does it deny "due respect to the autonomous military judicial system created by Congress," because, whatever else can be said about the Military Commission established under the President's Military Order, it is not autonomous, and it was not created by Congress. Parisi, 405 U.S. at 40. The New case identifies an exception to the exhaustion rule that it characterizes as "quite simple: a person need not exhaust remedies in a military tribunal if the military court has no jurisdiction over him." New, 129 F.3d at 644. That rule, squarely based on the Supreme Court's opinions in McElroy, Reed, and Toth, supra, applies here. Even Councilman supports the proposition that a district court should at least determine whether the petitioner has "`raised substantial arguments denying the right of the military to try [him] at all.'" 420 U.S. at 763 (quoting Noyd v. Bond, 395 U.S. at 696 n. 8). Having done so, and having considered Hamdan's arguments that he is not triable by military commission at all, I conclude that abstention is neither required nor appropriate as to the issues resolved by this opinion.

  2. No proper determination has been made that Hamdan is an offender triable by military tribunal under the law of war.

  a. The President may establish military commissions only for offenders or offenses triable by military tribunal under the law of war.

  The major premise of the government's argument that the President has untrammeled power to establish military tribunals is that his authority emanates from Article II of the Constitution and is inherent in his role as commander-in-chief. None of the principal cases on which the government relies, Exparte Quirin, 317 U.S. 1 (1942), Application of Yamashita, 327 U.S. 1 (1946), and Madsen v. Kinsella, 343 U.S. 341 (1952), has so held. In Quirin the Supreme Court located the power in Article I, § 8, emphasizing the President's executive power as commander-in-chief "to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war." Quirin, 317 U.S. at 10 (emphasis added). Quirin stands for the proposition that the authority to appoint military commissions is found, not in the inherent power of the presidency, but in the Articles of War (a predecessor of the Uniform Code of Military Justice) by which Congress provided rules for the government of the army. Id. Thus, Congress provided for the trial by courts-martial of members of the armed forces and specific classes of persons associated with or serving with the army, id., and "the Articles [of War] also recognize the `military commission' appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by court martial." Id. The President's authority to prescribe procedures for military commissions was conferred by Articles 38 and 46 of the Articles of War. Id. The Quirin Court sustained the President's order creating a military commission, because "[b]y his Order creating the . . . Commission [the President] has undertaken to exercise the authority conferred upon him by Congress. . . ." Id. at 11.

  This sentence continues with the words ". . . and also such authority as the Constitution itself gives the Commander in Chief, to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war." Id. at 11. That dangling idea is not explained — in Quirin or in later cases. The Court expressly found it unnecessary in Quirin "to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation. For here Congress has authorized trial of offenses against the law of war before such commissions." Id.

  In Yamashita, the Supreme Court noted that it had "had occasion [in Quirin] to consider at length the sources and nature of the authority to create military commissions for the trial of enemy combatants for offenses against the law of war," Yamashita, at 327 U.S. at 7, and noted:
[W]e there pointed out that Congress, in the exercise of the power conferred upon it by Article I, § 8 Cl. 10 of the Constitution to `define and punish . . . Offenses against the Law of Nations . . .,' of which the law of war is a part, had by the Articles of War [citation omitted] recognized the `military commission' appointed by military command as it had previously existed in United States Army practice, as an appropriate tribunal for the trial and punishment of offenses against the law of war. Id. at 7 (emphasis added). Further on, the Court noted:
We further pointed out that Congress, by sanctioning trial of enemy combatants for violations of the law of war by military commission, had not attempted to codify the law of war or to mark its precise boundaries. Instead, by Article 15 it had incorporated, by reference, as within the preexisting jurisdiction of military commissions created by appropriate military command, all offenses which are defined as such by the law of war, and which may constitutionally be included within that jurisdiction. It thus adopted the system of military common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts, and as further defined and supplemented by the Hague Convention, to which the United States and the Axis powers were parties."
Id. at 7-8 (emphasis added). And again:
Congress, in the exercise of its constitutional power to define and punish offenses against the law of nations, of which the law of war is a part, has recognized the `military commission' appointed by military command, as it had previously existed in United States Army practice, as an appropriate tribunal for the trial and punishment of offenses against the law of war.
Id. at 16 (emphasis added). Yamashita concluded that, by giving "sanction . . . to any use of the military commission contemplated by the common law of war," Congress "preserve[d] their traditional jurisdiction over enemy combatants unimpaired by the Articles [of War]. . . ." Id. at 20. What was then Article 15 of the Articles of War is now Article 21 of the Uniform Code of Military Justice, 10 U.S.C. § 821. It provides:
The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.
Quirin and Yamashita make it clear that Article 21 represents Congressional approval of the historical, traditional, nonstatutory military commission. The language of that approval, however, does not extend past "offenders or offenses that by statute or by the law of war may be tried by military commissions. . . ." 10 U.S.C. § 821.

  Any additional jurisdiction for military commissions would have to come from some inherent executive authority that Quirin, Yamashita, and Madsen neither define nor directly support. If the President does have inherent power in this area, it is quite limited. Congress has the power to amend those limits and could do so tomorrow. Were the President to act outside the limits now set for military commissions by Article 21, however, his actions would fall into the most restricted category of cases identified by Justice Jackson in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952), in which "the President takes measures incompatible with the expressed or implied will of Congress," and in which the President's power is "at its lowest ebb."*fn5

  b. The law of war includes the Third Geneva Convention, which requires trial by court-martial as long as Hamdan's POW status is in doubt.

"From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals."
This language is from Quirin, 317 U.S. at 27-28. The United States has ratified the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, 6 U.S.T. 3316, 74 U.N.T.S. 135 (the Third Geneva Convention). Afghanistan is a party to the Geneva Conventions.*fn6 The Third Geneva Convention is acknowledged to be part of the law of war, 10/25/04 Tr. at 55; Military Commission Instruction No. 2, § (5)(G) (Apr. 30, 2003); 32 C.F.R. § 11.5(g), d20030430milcominstno2.pdf. It is applicable by its terms in "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them." Third Geneva Convention, art. 2. That language covers the hostilities in Afghanistan that were ongoing in late 2001, when Hamdan was captured there. If Hamdan is entitled to the protections accorded prisoners of war under the Third Geneva Convention, one need look no farther than Article 102 for the rule that requires his habeas petition to be granted:
A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed.*fn7
The Military Commission is not such a court. Its procedures are not such procedures.

  The government does not dispute the proposition that prisoners of war may not be tried by military tribunal. Its position is that Hamdan is not entitled to the protections of the Third Geneva Convention at all, and certainly not to prisoner-of-war status, and that in any event the ...

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