Military Commissions: Unlawful—Hamdan v. Rumsfeld

In a decision that will be discussed loudly and often, the United States Supreme Court announced that the Bush Administration’s military commissions, created after the attack on September 11, 2001 to try alleged al Qaeda terrorists, are unlawful under both military justice law and the Geneva Conventions.^[1] Moreover, the 5‑3 (1/2) majority, Chief Justice Roberts abstaining, held that the laws of international conflict apply to the actions against al Qaeda —thereby throwing into question the entire scope of activities concerning the detainees at Guantanamo Bay.^[2]

The 185‑page opinion in Hamdan v. Rumsfeld, 548 U.S. ____ (2006), was authored by Justice John Paul Stevens for the majority, joined by Justices Breyer, Souter, Kennedy (in part), and Ginsburg.^[3] The full Court decision includes a concurrence by Justice Breyer (joined by Justices Kennedy, Souter, and Ginsburg), a partial concurrence by Justice Kennedy (joined by Justices Breyer, Ginsburg and Souter) and separate dissents by Justices Thomas, Scalia, and Alito (each joining the others’ opinions).^[4] We previewed this case last March.

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[1] Hamdan v. Rumsfeld, 548 U.S. ____ (2006).
[2] Id.
[3] Id.
[4] Id.