HAMDAN V. RUMSFELD

nore at HAMDAN V. RUMSFELD or RUMSFELD and Geneva Convention and al Qaeda

BACKGROUND INFORMATION ON THE RULING OF THE U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT IN HAMDAN V. RUMSFELD

The U.S. Court of Appeals for the D.C. Circuit unanimously affirmed the power of the President, pursuant to Congressional authorization, to have aliens like Salim Ahmed Hamdan tried by a military commission-a process with a long history in our military tradition. The court also agreed with the President's determination that the Geneva Convention does not apply to al Qaeda members. This decision is a major win for the Administration in the war on terror.

·The court ruled that the military commissions established by the President had been authorized by Congressional Joint Resolution of 2001, authorizing use of force by the President to prevent acts of international terrorism against the U.S., and by two statutes (10 USC § 821 and 10 USC § 836).

·The D.C. Circuit found that the President did not violate constitutional separation of powers-he acted pursuant to specific authority from Congress to prevent terrorist attacks, and general authority to establish military commissions, which are different from courts martial.

·The D.C. Circuit held that the President correctly determined that the Geneva Convention does not apply to al Qaeda members, for the reasons given by the President: they do not wear distinctive insignia and do not conduct their operations in accordance with the laws and customs of war.

·The court made clear that the Geneva Convention provisions are not enforceable through legal actions brought by aliens in U.S. courts.

·The appellate court sharply criticized the trial court for overruling the President on whether al Qaeda members are covered by the Geneva Convention; the D.C. Circuit held that this type of determination “is the sort of political-military decision constitutionally committed to [the President].”

·The court further held that nothing Congress has enacted in the Uniform Code of Military Justice says that Military Commissions have to match identically the way courts martial are run.

·The D.C. Circuit’s opinion reaffirms that an important incident to the conduct of war is the adoption of measures by the military commander to seize and subject to disciplinary procedures enemies who have violated the laws of war.

·Hamdan was a personal bodyguard/driver for Osama bin Laden between 1996 and November 2001.

·He was captured in Afghanistan in November 2001; sent to Guantanamo.

·Under presidential order, he was charged before a military commission with conspiracy to commit attacks on civilians, murder, and terrorism; delivering weapons to al Qaeda members; and driving bin Laden to training camps and safe havens.

·Hamdan filed action in federal civilian court to stop the military commission from trying him on these charges. Hamdan has a military lawyer. His main claim is that the proceedings are unfair because he will not get to see and respond to classified evidence; his attorney will, but Hamdan will not.

·A federal district court accepted Hamdan’s arguments, ruling that Hamdan can only be tried subject to standard military court martial procedures.

Source: USDOJ ### FOR IMMEDIATE RELEASE,FRIDAY, JULY 15, 2005 WWW.USDOJ.GOV OPA, (202) 514-2007, TDD (202) 514-1888