The opinion of the court was delivered by: James Robertson United States District Judge
Salim Ahmed Hamdan seeks a preliminary injunction that would stop his trial by military commission pending federal court review of the Military Commission's determination that he is an unlawful enemy combatant and of his claims that the trial will violate the Constitution and the Geneva Conventions.
Hamdan is a Yemeni national. He was captured by militia forces in Afghanistan in November 2001 and turned over to the United States military. Since June 2002, he has been held at the Defense Department's detention facility at Guantanamo Bay. One year into his detention at Guantanamo, in July 2003, the President declared him eligible for trial by military commission on unspecified charges. In April 2004, Hamdan filed a petition for mandamus or habeas corpus in the United States District Court for the Western District of Washington. On July 13, 2004, two years and eight months into his detention, Hamdan was formally charged with single count of conspiracy "to commit . . . offenses triable by military commission." In August 2004, his habeas petition was transferred to the District of Columbia and randomly assigned to me.
Around the same time, in July 2004, in compliance with the Supreme Court's decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Deputy Secretary of Defense established Combatant Status Review Tribunals (CSRTs) to determine whether detainees at Guantanamo are "enemy combatants." Hamdan was classified as a enemy combatant by a CSRT on October 2, 2004, and designated for trial before a military commission.
On November 8, 2004, I granted Hamdan's habeas petition. Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004).*fn1 The Supreme Court generally sustained my decision,*fn2 holding that Hamdan could not be lawfully tried by a military tribunal convened only by executive order and that the structure and procedures of the military commission then in place violated both the Uniform Code of Military Justice and the Geneva Conventions. Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2759 (2006). Four justices, in a plurality opinion, also concluded that the only offense Hamdan was then charged with -- conspiracy -- was not a violation of the law of war and thus not triable by military commission. Id. at 2780.
Four justices (not the same four) noted in Hamdan that "[n]othing prevents the President from returning to Congress to seek the authority he believes necessary" in order lawfully to try enemy combatants before a military tribunal. Id. at 2799. The President accepted that invitation and, in October 2006, Congress enacted the Military Commissions Act, Pub. L. No. 109-366, 120 Stat. 2600. In Section 3(a)(1) of that Act, codified at 10 U.S.C. § 948d(a), Congress gave military commissions jurisdiction to try "alien unlawful enemy combatant[s]."
Under the Act, a military commission is made up of at least five officers, 10 U.S.C. §§ 948i, 948m, and is presided over by a military judge, 10 U.S.C. § 948j. Many of the procedures for an MCA commission parallel those that had been established by the President's order. Before and after passage of the MCA, the applicable rules have required that the defendant be represented by appointed military counsel and have the ability to retain private counsel (as Hamdan has), that he be informed of the charges against him, that he be presumed innocent until proven guilty beyond a reasonable doubt, that he receive (with important qualifications) the evidence that the prosecution intends to produce at trial and any known exculpatory evidence, that he not be required to testify at trial, and that he be allowed to present evidence and cross-examine witnesses. 32 C.F.R. §§ 9.3 - 9.6; 10 U.S.C. §§ 948k, 949a, 949c, & 949l.
The procedures codified by the MCA also include significant improvements. Previously, the accused could be excluded from the proceedings, and evidence admitted against him without his knowledge. 32 C.F.R. §§ 9.6(b)(3), (d)(5). The MCA repairs that problem by requiring the presence of the defendant unless, after being warned, he persists in conduct that justifies his exclusion in order to protect the safety of others or to avoid disrupting the proceedings. 10 U.S.C. §§ 949d(b), (e). While the MCA adopts fairly permissive standards allowing for the use of hearsay and requires the party opposing admission to prove unreliability, whenever the government intends to use hearsay, it must notify the defendant "sufficiently in advance to provide the adverse party with a fair opportunity to meet the evidence" and must explain "the particulars of the evidence (including information on the general circumstances under which the evidence was obtained)." 10 U.S.C. § 949a(b)(2)(E)(ii).
The curtailment of confrontation rights through the broad allowance of hearsay is one of a number of ways in which MCA commissions depart from standards that would be applied in either U.S. criminal trials or courts-martial. Another departure, and a startling one, is that under 10 U.S.C. § 948r(c), evidence obtained by "coercion" may be used against the defendant so long as the military judge decides that its admission is in the interest of justice and that it has "sufficient" probative value. Compare Chambers v. Florida, 309 U.S. 227 (1940) (reversing conviction and excluding evidence obtained through five days of coercive interrogation).
That said, one of the most substantial improvements under the MCA is in the structure for review of convictions. Before the MCA, the President himself, or the Secretary of Defense acting at his direction, was vested with final reviewing authority. There was no provision for independent review outside the military's chain of command. Under the MCA, defendants convicted by military commission are afforded three levels of appellate review. A defendant may first appeal his conviction to a Court of Military Commission Review (CMCR), comprised of at least three military judges or civilians with "comparable qualifications" appointed by the Secretary of Defense. 10 U.S.C. § 950f. After exhausting (or waiving) proceedings before the CMCR, the defendant has an appeal of right to the D.C. Circuit, which has "exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission." 10 U.S.C. § 950g. The Court of Appeals has jurisdiction to review all "matters of law" in order to consider "whether the final decision was consistent with the standards and procedures specified" in the MCA and with "the Constitution and laws of the United States." 10 U.S.C. §§ 950g(a)-(c). Finally, 10 U.S.C. § 950g(d) provides that the Supreme Court may review the final judgment of the Court of Appeals on a writ of certiorari, in accordance with 28 U.S.C. § 1257.
Except for its provision "channeling" appellate review of final judgments to the D.C. Circuit, the MCA was clearly designed to keep enemy combatants away from the federal courts: section 7 of the MCA unambiguously stripped Article III courts of their jurisdiction to consider habeas petitions filed by enemy combatants. It was in compliance with Section 7 that I dismissed Hamdan's petition for habeas corpus on December 13, 2006: Congress had stripped federal courts of their statutory habeas jurisdiction, and I thought that precedent required that I refuse a "constitutional" writ of habeas corpus to an alien detained at Guantanamo Bay. Hamdan v. Rumsfeld, 464 F. Supp. 2d 9 (D.D.C. 2006). That belief turned out to be incorrect. The Supreme Court, in Boumediene v. Bush, 128 S.Ct. 2229 (2008), decided last month that Section 7 was unconstitutional. The Court held that the Suspension Clause, Art. I, § 9, cl. 2 of the Constitution, "has full effect at Guantanamo Bay," and that the Boumediene petitioners "are entitled to the privilege of habeas corpus to challenge the legality of their detention." Id. at 2262.
While these developments were moving forward in Congress and the courts, Hamdan's military commission moved forward, as well, although not without difficulty. On April 5, 2007, the Convening Authority authorized two new charges against Hamdan, both of which had recently been "codified" under the MCA. Charge I was, and is, for conspiracy in violation of 10 U.S.C. § 950v(b)(28); Charge II is for providing material support for terrorism in violation of 10 U.S.C. § 950v(b)(25). On June 4, 2007, the military judge presiding over Hamdan's Commission dismissed those charges, for lack of jurisdiction, because Hamdan had been classified by CSRT only as an "enemy combatant" and not as an "unlawful enemy combatant." The government moved for reconsideration and for the military judge to hear evidence and decide for himself whether Hamdan was lawfully triable under the MCA. The motion was granted and, as a result of hearings held on December 5 and 6, 2007, the military judge issued an opinion finding Hamdan to be an unlawful enemy combatant. In that same opinion, issued on December 19, 2007, ...