On June 29, 2006, the Supreme Court by a 5-3 vote in Hamdan v. Rumsfeld (1) set aside President Bush's November 13, 2001 order (2) providing for trial by military commission of non-citizens believed to be associated with the al Qaeda terrorist organization and apprehended during the conflict in Afghanistan and being held in Guantanamo Bay, Cuba. In an opinion authored by Justice Stevens, the Court held that President Bush lacked congressional authorization to provide for the trial of these Guantanamo detainees by military commission and that some of the procedures contemplated for these trials contravened the Uniform Code of Military Justice ("UCMJ"). (3) Heralded by many academic observers as a signal victory for the "Rule of Law" and human rights even in wartime, Hamdan requires the President to try the Guantanamo detainees by court-martial proceedings or to seek from Congress express authorization of the use of military commissions falling short of court-martial procedures. Now, less than one year after the Court's decision, Congress has provided such authorization in the Military Commissions Act of 2006 ("MCA"). (4) Before discussing the MCA, we begin with an examination of the limits of the Court's holding in Hamdan.
I. THE LIMITS OF HAMDAN V. R UMSFELD
Hamdan is a remarkable ruling. Use of military commissions during wartime to try military personnel or enemy combatants considered to have violated the laws of war has a long history, dating back to the Mexican War (5) and in some accounts to the Revolutionary War. (6) To our knowledge, the Court had not previously placed curbs on the President's ability to try suspected unlawful combatants by military commission. Ex parte Milligan was, of course, a case involving "a citizen in civil life, in nowise connected with the military service...." (7) The decisions from the World War II era, especially Ex parte Quirin (8) and In re Yamashita, (9) pointed in one direction (10)--that existing Articles of War legislation had authorized military commissions as an exercise of the President's common law military power, and that courts-martial provided a concurrent means for trying war criminals that did not alter the traditional role for military commissions. (11)
Congress codified the Articles of War by enacting the UCMJ in 1950 (12) but it made no changes in the Articles dealing with military commissions or the procedures governing them. It did provide in Article 36(b) that the President's rules and regulations prescribing procedure "in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals ... shall be uniform insofar as practicable and shall be reported to Congress." (13) Despite contrary World War II precedent, (14) the Hamdan Court seized on this seemingly modest provision, the implications of which for military commissions occasioned no discussion in the relevant committee reports, (15) as establishing a "uniformity principle" contravened by Hamdan's military commission.
With the benefit of hindsight, the President might have done a better job framing the issue for the courts. It was naturally difficult to convince the Justices of a military...