Hamdan v. Rumsfeld, majority opinion

1. Who is Salim Hamdan? (p. 29)

2. What are the two prinicpal reasons Hamdan claims the military commision convened by President Bush lacks authority to try him? (p. 29, 3rd paragraph)

3. The President claims the basis of his authority is in Congres’s Authorization to Use Military Force (AUMF), his November 13, 2001 Order, and his July 3, 2003 Order. Find the Court’s description of these in Sec. I, p. 30.

4. What are the specific charged lodged against Hamdan and the spcific acts he is accused of committing? (Sec. I, p. 30-31)

5. What does the Court mean when it says “The military commission, a tribunal neither mentioned in the Constitution nor created by statute, was born of military necessity.” (Sec. IV, p. 31

6. How does the Constitution divide powers between Congress and the Executive Branch (e.g. the President) during wartime? (Sec. IV, p. 32)

7. What are the three situations the Court identifies where military commissions have been used in the past? (Sec. V, p. 33-34)

8. In Sec. V, middle paragraph, p. 35, the Court states: “The question is whether the precondiditons designed to ensure that a military necessity exists to justify the use of this extraordinaray tribunal have been satisfied here.” What does this mean and how does the Court answer this question?

9. Towards the end of Sec. V, why does the Court conclude that conspiracy is not an offense that may be tried by a military commission?

10. In Section VI, the Court considers whether the procedures to be used in Hamdan’s military commission comply with the Uniform Code of Military Justice (UCMJ, which covers court martial proceedings for US military personnel) and the law of nations. What are the specific procedures that are at issue here? (Section IV, Part A, p. 37-38)

11. What are the two restrictions that the UCMJ places on the President’s power to make rules for military commissions? (Section IV, Part C, p. 40) How does Hamdan argue that the President has violated those restrictions? How does the government argue that the President has not violated those restrictions? Which side does the Court agree with and why?

12. What is Common Article 3 of the Geneva Convention? (Section IV, Part D, p. 41-42) Why does the government claim that this does not apply to Hamdan’s military commission? Why does the Court disagree with the government’s argument?

13. The Court concludes that “in undertaking to try Hamdan and subject him to criminal punishment, the Executive [e.g. the President] is bround to comply with the Rule of Law that prevails in this jurisdiction.” (Section VII, p. 44) Do you agree or disagree with this statement?

Hamdan v. Rumsfeld, concurring opinions.

14. What do the concurring opinions find that the President needs to do to proceed with Hamdan’s military commission?