Hamden versus Rumsfeld Essay

of nations. This is the constitutional provision used to show that military commission tribunals are legal. However, this court feels that only certain circumstances allow for offense to be triable in a military commission. Those offenses are; 1 in place of civilian courts when marital law has been declared, 2 temporary military government in occupied territory or in lands where there is no government to try cases, and 3 when the crime is  an incident to the conduct of war which violate the laws of war. The court states that only the 3rd type applies, however the charge of conspiracy is not an incident to the conduct of war. Incidents of war are accusations of actual conduct, not the attempt or planning of such conduct. Inchoate criminal charges belong in a federal court or court martial proceeding. Secondly this commission violates not only constitutional rights afforded an individual, but also rules established by the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. A military commission tribunal must have rules and regulations that do not fall short of at least a military court martial proceeding. The lack of presence and ability to see the evidence and witness before you is not constitutional. Therefore Hamdan should not be tried in front of this commission. This court reversed the commission’s charges of conspiracy.

Application

The President does not have a blank check to try prisoners of war as he pleases. While there is a large separation of powers issue here, Congress has specifically legislate the UCMJ to prescribe the rules for such commissions to avoid these violations and the court would not disagree with that. This court decided it

will not analyze the President’s Power to create Military Commissions at a time of war, but state that these commissions; however, do have guidelines and must not violate our constitution or any international conventions we have signed into law.

Conclusion

The Court argued that the Bush administration's military commissions had violated the U.S. Military Code of Justice and the Geneva Conventions in specific and dramatic ways. The commissions prohibited a defendant's attorney from discussing evidence with the defendant, prevented a defendant and his attorney from viewing evidence used against the defendant, deprived the defendant of his right to appeal to a U.S. court, and allowed any evidence determined to contain "probative value" to be admitted -- including unsworn testimony, hearsay, and evidence garnered through the use of torture. Thus, the Court ruled that Hamdan's scheduled "military commission ... lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949." Though narrowly decided, the Supreme Court's ruling in Hamdan v. Rumsfeld reaffirmed the Court's paramount role in and commitment to guarding personal liberties in times of even the gravest national exigencies. In nullifying the Bush administration's special military commissions for trying terrorism suspects, Hamdan left a void in the government's prosecutorial apparatus in the so-called "War on Terror." In the fall of 2006, Congress and the president sought to fill this void by enacting the Military Commission Act. Its constitutionality, however, is unclear. For example, the act strips aliens deemed "enemy combatants" of the right to challenge their detention in a court of law, and removes evidence and procedural safeguards ordinarily employed in judicial trials or in

military courts-martial.

Work Cited

1. Garrison, Arthur H. "Hamdan v. Rumsfeld, Military Commissions, and Acts of Congress: A Summary." Am. J. Trial Advoc. 30 (2006): 339.