1
Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism §1(a),
66 Fed. Reg. 57,833 (Nov. 16, 2001) (hereinafter M.O.).
2
542 U.S. 507 (2004).
3
Hamdan v. Rumsfeld, No. 05-154, slip op. at 72 (U.S. June 29, 2006).
Congressional Research Service ˜ The Library of Congress
CRS Report for Congress
Received through the CRS Web
Order Code RS22466
July 6, 2006
Hamdan v. Rumsfeld: Military Commissions
in the “Global War on Terrorism”
Jennifer K. Elsea
Legislative Attorney
American Law Division
Summary
The Supreme Court ruled 5-3 that President Bush’s military order on the Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism exceeded
his authority. The Court found that Congress did not strip the Court of jurisdiction to
hear Hamdan v. Rumsfeld when it passed the Detainee Treatment Act of 2005 (title X
of P.L.109-148), which limited federal court jurisdiction over habeas corpus petitions
from detainees held at the Guantanamo Bay detention facility. Although the Court did
not dispute the President’s authority to hold the petitioner as an “enemy combatant ...
for the duration of hostilities,” it found the military tribunals convened to try detainees
for violations of the law of war did not comply with the Uniform Code of Military
Justice (UCMJ) or the law of war, as incorporated in the UCMJ and embodied in
Common Article 3 of the Geneva Conventions, which the Court held applicable to the
armed conflict. The three dissenters argued that the ruling would hamper the President’s
ability to fight terrorism. The majority left open the possibility that Congress could
grant the necessary authority to create military commissions that depart from the UCMJ.
One new bill, S. 3614, addresses the issue.
In Hamdan v. Rumsfeld, decided June 29, 2006, the Supreme Court reviewed the
validity of military commissions established to try suspected terrorists of violations of the
law of war, pursuant to President Bush’s military order (M.O.).
1
The Court did not revisit
its 2004 opinion in Hamdi v. Rumsfeld
2
upholding the President’s authority to detain
individuals in connection with antiterrorism operations, and did not resolve whether the
petitioner could claim prisoner-of-war (POW) status, but held that “in undertaking to try
Hamdan and subject him to criminal punishment, the Executive is bound to comply with
the Rule of Law that prevails in this jurisdiction.”
3
