761:
41:
1203:
signed in 1949. He again emphasized that the jurisdiction of military commissions is not prescribed by statute but is rather "adapted in each instance to the need that called it forth". Thomas argued that the Court's conclusion that
Article 36 of the UCMJ amounts to an attempt by Congress to curb the Executive's power is "contrary to the text and structure of the UCMJ" and also inconsistent with prior decisions of the Court. Addressing Hamdan's claims under the Geneva Convention, Thomas argued that these are foreclosed by the Court's holding in
1045:(DTA) (effective December 30, 2005) that states "o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." §1005(e)(1), 119 Stat. 2742. Scalia's opinion is that this clause suffices to deny the Supreme Court jurisdiction over the case, calling the majority's reading of the effectiveness provisions of §1005(h), a "mess". He cites
1001:
1326:
1282:'preserved' the President's power 'to convene military commissions.'" Alito disagreed with Kennedy's assertion that "an acceptable degree of independence from the Executive is necessary to render a commission 'regularly constituted' by the standards of our Nation's system of justice", arguing that Kennedy "offers no support for this proposition (which in any event seems to be more about fairness or integrity than regularity)", and further arguing that the commission in
1230:, Alito sided with Thomas and Scalia's explanation of why they believe the courts had no jurisdiction for this case. He explained why he believed the military commission in this case was legal. Alito disagreed with the holding of the Court which found that military commissions did not meet the definition of "a regularly constituted court" as required in Common Article 3 of the Geneva Conventions. Alito argued that Common Article 3 was satisfied in
1261:"special tribunals", which Article 66 does prohibit, such a prohibition is not applicable to Hamdan's tribunal because the military commissions were "regular". Further, because the Bush Administration might conduct the hundreds of such tribunals according to the same procedures, Alito concluded that "it seems that petitioner's tribunal, like the hundreds of others respondents propose to conduct, is very much regular and not at all special."
1052:
clear language saying it does not. Scalia claimed that the majority had made this interpretation "for the flimsiest of reasons". He was referring to the majority's use of Senate floor debate records to bolster their interpretation, writing that it "makes no difference" that the language in support of his position was inserted into the
Congressional Record after the law was voted upon. He also accuses the majority of ignoring the President's
1199:, Thomas noted with some incredulity that while the Justices in the instant decision "disregard the commander-in-chief's wartime decisions", they had no trouble deferring to the judgment of the Corps of Engineers in upholding the agency's "wildly implausible conclusion that a storm drain is a tributary of the waters of the United States". He added that "It goes without saying that there is much more at stake here than storm drains."
600:
813:, in which the court recognized its duty to enforce relevant Constitutional protections by convening a special Term and expediting review of a trial by military convention. The opinion explicitly stated that, because DTA did not bar it from considering the petition, it was unnecessary to decide whether laws unconditionally barring habeas corpus petitions would unconstitutionally violate the
1022:
raise issues of neutrality with respect to the military judges involved. The negation of fairness safeguards renders the commission a judicial entity which is not a "regularly constituted court", as required in the Geneva
Convention. In sum, Kennedy writes that the commission exceeds congressional bounds, though the Congress is free to re-write the law as they see fit.
167:(1) Whether the military commission established by the President to try petitioner and others similarly situated for alleged war crimes in the "war on terror" is duly authorized under Congress's Authorization for the Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224; the Uniform Code of Military Justice (UCMJ); or the inherent powers of the President?
1190:, but rather authorized the Executive to use force to combat it. Additionally, Thomas wrote that under the common law of war, which is "flexible and evolutionary in nature", war courts are permitted a degree of latitude in their jurisdiction. In holding otherwise, the plurality failed to properly defer to the judgment of the Executive and military commanders.
793:(DTA), which gave the D.C. Circuit Court of Appeals "exclusive" jurisdiction to review decisions of cases being tried before military commissions. Congress did not include language in the DTA that might have precluded Supreme Court jurisdiction, making the government's argument to the Court unpersuasive. The government's argument that
1257:. Alito wrote that the military commission was "regularly" or "properly" constituted, using the example of the various types of local, state, federal and international courts and how "although these courts are 'differently constituted' and differ substantially in many other respects, they are all 'regularly constituted.'"
991:
insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine—through democratic means—how best to do so. The
Constitution places its faith in those democratic means. Our Court today simply does the same.
829:(AUMF) "even hinting" at expanding the President's war powers beyond those enumerated in Art. 21. Instead, the AUMF, the UCMJ, and the DTA "at most acknowledge" the President's authority to convene military commissions only where justified by the exigencies of war, but still operating within the laws of war.
1202:
Thomas likewise disagreed with the plurality's holding that even if the government had charged Hamdan with a crime that was clearly cognizable by military commission, the commission would still lack power to proceed because it does not comply with the terms of the UCMJ and the four Geneva
Conventions
1177:
for which he was caught redhanded ... but with an 'agreement' the inception of which long predated ... the ". He lambasted the plurality for second-guessing the
Executive's judgment, arguing that the Court's disagreement was based upon "little more than its unsupported assertions" and constituted "an
915:
In one of these sections, Stevens addressed the issue of whether military commissions can try conspiracy charges. He argued that military commissions are not courts of general jurisdiction, which are able to try any crime; that the court has traditionally held that offenses against the law of war are
894:
Hamdan observes that
Article 5 of the Third Geneva Convention requires that if there be "any doubt" whether he is entitled to prisoner-of-war protections, he must be afforded those protections until his status is determined by a "competent tribunal". Because we hold that Hamdan may not, in any event,
1476:
In
December 2007, a tribunal determined that Hamdan was an "unlawful enemy combatant". In August 2008, he was convicted by the military commission of the lesser of two charges and received a sentence of 66 months, reduced by time served to five and a half months. In November 2008, the US transferred
1248:
Alito specifically disagreed with the opinions supporting the judgment which held that the military commission before which Hamdan would be tried is not "a regularly constituted court", and that the military commission is "illegal", because the commission's procedures allegedly would not comply with
820:
The opinion then addressed the substantive issues of the case. It explicitly did not decide whether the
President possessed the Constitutional power to convene military commissions like the one created to try Hamdan. Even if he possessed such power, those tribunals would either have to be sanctioned
64:
Salim Ahmed Hamdan, Petitioner v. Donald H. Rumsfeld, United States
Secretary of Defense; John D. Altenburg, Jr., Appointing Authority for Military Commissions, Department of Defense; Brigadier General Thomas L. Hemingway, Legal Advisor to the Appointing Authority for Military Commissions; Brigadier
1051:
and other cases granting "immediate effect in pending cases, absent an explicit statutory reservation". He wrote that in interpreting the language in the DTA, the majority ignored Supreme Court precedents which established that a statute excluding jurisdiction applies to pending cases unless it has
1021:
Part Two describes the differences between the procedures of the military commissions and the procedures prescribed by the UCMJ (fewer jury members, different rules of evidence, etc.). These differences demonstrate that the commissions do not operate under the rules of military courts-martial, and
990:
Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary. ... Where, as here, no emergency prevents consultation with Congress, judicial
1289:
Finally, Alito wrote that the commission procedures as a whole do not provide a basis for deeming the commissions to be illegitimate. He points to two procedural rules, which the Court found fault with: First, the rule "allowing the Secretary of Defense to change the governing rules 'from time to
1217:
that Common Article 3 of Geneva does not extend to al Qaeda detainees. Thomas asserted that the Court's duty in this instance to "defer to the President's understanding of the provision at issue" is made even more acute by the fact that he is acting pursuant to his authority as Commander-in-Chief.
751:
The Supreme Court announced its decision on June 29, 2006. The Court reversed the ruling of the Court of Appeals, holding that President George W. Bush did not have authority to set up the war crimes tribunals and finding the special military commissions illegal under both military justice law and
1025:
The third and final Part lists some of Kennedy's reservations. He would not say that the defendant must be present at all stages of the trial. There should be a reluctance to consider the applicability of Article 75 of Protocol I, since the U.S. never signed it and thus it is not binding. Kennedy
400:
After hearing oral arguments on March 28, 2006, on June 29, 2006, the Court issued a 5–3 decision holding that it had jurisdiction; that the administration lacked either the constitutional power or congressional authorization to establish these particular military commissions; that, absent such
1409:
issued a memo "Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense". This may be the basis of a July 11, 2006, statement by the Bush administration that all detainees at Guantanamo Bay and in U.S. military custody everywhere are
1260:
Alito stated that Geneva Convention Common Article 3 does not specifically rule out military commissions, and further points to the commentary in Article 66, which was the article the Court used in support of its opinion. Alito argued that even if Common Article 3 recognizes a prohibition on
1178:
unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority". Thomas further disagreed with the plurality's assumption that the date of the enactment of the AUMF constituted the start of war, suggesting that
1425:), might use the Supreme Court's ruling to challenge their treatment. Their reasoning may be that since the Geneva Conventions afforded protection to Hamdan, its other protections might be effective for them as well. Commentators expressed mixed opinions about the strength of this argument.
401:
authority, the military commissions had to comply with the "ordinary laws" of the U.S. and of war, which include the UCMJ and the Geneva Conventions incorporated therein; and that Hamdan's trial, having violated the rights and procedures under both bodies of law, was illegal.
1305:
the defendant, and that some may even help the defendant. In addition, "If a change is made and applied during the course of an ongoing proceeding and if the accused is found guilty, the validity of that procedure can be considered in the review proceeding for that case."
169:(2) Whether petitioner and others similarly situated can obtain judicial enforcement from an Article III court of rights protected under the 1949 Geneva Convention in an action for a writ of habeas corpus challenging the legality of their detention by the Executive branch?
840:, each of which require more protections than the military commission provides. The UCMJ, Art. 36 (b), requires that rules applied in courts-martial and military commissions be "uniform insofar as practicable". Stevens found several substantial deviations, including:
895:
be tried by the military commission the President has convened pursuant to the November 13 Order and Commission Order No. 1, the question whether his potential status as a prisoner of war independently renders illegal his trial by military commission may be reserved.
1166:, President Bush's decision to try Hamdan before a military commission "is entitled to a heavy measure of deference", inasmuch as Congress had authorized the President to use all necessary and appropriate force to prevent future acts of terrorism when it passed the
747:
to recuse himself, since he had made allegedly improper comments about the decision of the case prior to hearing oral arguments ("I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy") but he chose not to do so.
1209:, where the majority noted that the respondents could not assert "that anything in the Geneva Convention makes them immune from prosecution or punishment for war crimes". Further, even if Hamdan's claim under Common Article 3 was not foreclosed by
1469:, had all charges against them dismissed. The judges presiding over their military commissions ruled that the Military Commissions Act did not give them the jurisdiction to try Hamdan and Khadr, because it only authorized the trial of "
861:
The majority also found that the procedures in question violate the "at least" applicable Common Article 3 of the Geneva Conventions. It found that the D.C. Court of Appeals erred in concluding that the Conventions did not apply:
1477:
him to Yemen, where he served his last month. After release, he joined his family in Sana. In October 2012, the US Appeals Court for the District of Columbia, overturned Hamdan's conviction, acquitting him of the charge.
1356:
The impact of the decision on the petitioner, Hamdan, was that he can still be tried; however, his trial must be in a court, such as a military court-martial, or possibly a commission that has court-like protections.
1026:
writes that he feels it was not necessary to delve into the validity of the conspiracy charge, and he expresses no view on the merits of the other limitations of the commission noted in Part V of the Decision.
912:(that is, having decided that the military commissions had no foundation, the core question of the case was decided and the Court did not need to go further), those sections were without a majority in support.
882:
Because the military commission does not meet the requirements of the Uniform Code of Military Justice or of the Geneva Convention, it violates the laws of war and therefore cannot be used to try Hamdan.
572:
was not between two countries, and the Convention guarantees only a certain standard of judicial procedure—a "competent tribunal"—without speaking to the jurisdiction in which the prisoner must be tried.
2121:
844:
The defendant and the defendant's attorney may be forbidden to view certain evidence used against the defendant; the defendant's attorney may be forbidden to discuss certain evidence with the defendant;
385:
may pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place; whether the special military commissions established by the
1018:
In Part One of Kennedy's concurrence, he raises his concern for the separation of powers; specifically, how one branch can control all the elements of a case, including avenues of review and appeal.
948:
The majority opinion says that Justice Scalia's argument concerning the jurisdiction-stripping statute (section 1005e(1)) ignores the effective date provision of that very statute (section 1005(h)).
585:
The judicial branch of the United States government cannot enforce the Convention, thus invalidating Hamdan's argument that he cannot be tried until after his prisoner-of-war status is determined.
2683:
2981:
2519:
1698:
740:
535:
150:
807:". In contrast, Hamdan is not a member of the U.S. military, and would be tried before a military "commission", not a court-martial. To the court, the more persuasive precedent was
1075:
In its second major argument, Scalia's opinion argues that petitioners such as Hamdan held outside the territorial jurisdiction of the United States lack the right to the writ of
3001:
1145:; that the Geneva convention does not prohibit the special court council proposed; and that the President already had authority to set up the special court council proposed.
2276:
550:, unanimously reversed the decision of the District Court. Judge Randolph, who wrote the decision, cited the following reasons for the legality of the military commission:
986:, joined by Justices Kennedy, Souter, and Ginsburg. Breyer contended that the commissions are not necessarily categorically prohibited, as long as Congress approves them:
2922:
1313:
differ from country to country" and "much of the world does not follow aspects of our evidence rules, such as the general prohibition against the admission of hearsay".
1167:
826:
338:
1059:
Furthermore, he anticipates that expanding the jurisdictions able to hear writs of habeas corpus from Guantanamo Bay would create excessive load on the court system.
179:
Military commission to try petitioner is illegal and lacking the protections required under the Geneva Conventions and United States Uniform Code of Military Justice.
2831:
1047:
524:
142:
2526:
BRIEF OF LEGAL SCHOLARS AND HISTORIANS AS AMICI CURIAE IN SUPPORT OF PETITIONER, SALIM AHMED HAMDAN, v DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al., No. 05-184
2174:
1713:
872:, which does not legally control in Hamdan's case because there was then no deviation between the procedures used in the tribunal and those used in courts-martial;
1154:, Thomas briefly reprised the roles granted by the Constitution to the three different branches in time of war. He argued that under the framework established in
951:
The majority opinion says that the government's contention that the war started on September 11, 2001, undercuts Justice Thomas' argument that it started in 1996.
2657:
1186:
in August 1996 could be considered a declaration of war. Under this view, the enactment by Congress of the AUMF did not mark the beginning of the conflict with
2118:
1552:
1173:
Thomas disagreed strongly with the plurality's determination that the legality of the charges against Hamdan are doubtful because he was charged "not with an
2971:
2377:
1674:
1486:
93:
2575:
2282:
875:
It erroneously ruled that the Geneva Conventions do not apply because Art. 3 affords minimal protection to combatants "in the territory of" a signatory; and
2976:
2562:
1965:, Alito relied on the definition of "special", "relating to a single thing"; and the definition of "regular", "uniform in course, practice, or occurrence".
527:
ruled in the detainee's favor. He found that the United States could not hold a military commission unless it was first shown that the detainee was not a
2449:
2415:
886:
The Court did not hear the question that had decided the district court opinion, namely that Hamdan was entitled to a GCIII Art. 5 hearing instead of a
621:
614:
2691:
1638:
427:. Hamdan had formerly worked in Afghanistan on an agricultural project that Bin Laden had developed. Hamdan was captured by militia forces during the
1473:". Hamdan and Khadr's Combatant Status Review Tribunals, like those of all the other Guantanamo captives, had confirmed them as "enemy combatants".
1137:
In his dissent he asserted that the courts had no jurisdiction for this case for the reasons described in Scalia's dissent above; that Hamdan is an
1999:
2525:
2491:
1961:
1379:
follows through on President Bush's expressed intention to get explicit Congressional authorization to use military tribunals. Press Secretary
1264:
Alito wrote that "the commissions were appointed, set up, and established pursuant to an order of the President, just like the commission in
568:
Even if the Geneva Convention could be enforced in U.S. courts, it would not be of assistance to Hamdan at the time because the war against
504:
government officials allegedly responsible for Hamdan's detention; the short name of the case includes only the first-named defendant, then-
2071:
1309:
On the second rule, Alito argued that this rule does not violate the international standard incorporated into Common Article 3, because "
459:
65:
General Jay Hood, Commander Joint Task Force, Guantanamo, Camp Echo, Guantanamo Bay, Cuba; George W. Bush, President of the United States
2482:
446:
In July 2004, Hamdan was charged with conspiracy to commit terrorism, and the Bush administration made arrangements to try him before a
2996:
1736:
2538:
2895:
2631:
1491:
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924:). Finally, he found that there was no support in statute or court precedent for law-of-war military commissions trying charges of "
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of alien unlawful enemy combatants (or those whose status is to be determined) are not within the jurisdiction of those courts.
1062:
In addition, Scalia states that the original military tribunal was not shown to be inadequate. Regarding the application of the
2354:
636:
2211:"Stuck in Guantanamo: President Bush tried to create a new legal system for terrorism suspects. He created a quagmire instead"
944:
As is common in opinions to which there are dissents, Stevens' opinion addressed the major arguments in dissent. For example:
2308:
1927:
1859:
1450:
466:, challenging the constitutionality of the military commission, and saying that it lacked the protections required under the
428:
1414:
detainees and is ambiguous with respect to the interpretation of Common Article 3 and the definition of "humane treatment".
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2550:
1294:"; and second, the rule that "permits the admission of any evidence that would have 'probative value to a reasonable person
2023:
2011:
643:
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2720:
1627:
1442:
1365:
1214:
804:
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1710:
1041:
Scalia calls the Court's conclusion to hear the case "patently erroneous". His first argument relies on the part of the
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Those minimal protections include being tried by a "regularly constituted court", which the military commission is not.
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352:
45:
2267:
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929:
683:
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1087:, under which he claims Hamdan "is already subject to indefinite detention" "after an adverse determination by his
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822:
717:
705:
490:
471:
368:
334:
1433:
The decision may have important implications for other disputes relating to the extent of executive power and the
1112:
in Cuba have not yet ended their work regarding Hamdan and therefore should not be subject to judicial oversight.
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732:
451:
565:
The Geneva Convention is a treaty between nations and as such it does not confer individual rights and remedies.
2986:
1104:, 420 U.S. 738 (1975). In that case, the Supreme Court declined passing judgment on the decision of a military
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356:
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Stevens (Parts I through IV, VI through VI–D–iii, VI–D–v, and VII), joined by Kennedy, Souter, Ginsburg, Breyer
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Appeals are not heard by courts, but only within the Executive Branch (with an exception not here relevant).
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There were some indications that the other detainees being held at facilities throughout the world (e.g.,
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triable by military commission only when they are clearly defined as war crimes by statute or strong
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recused himself because he had previously ruled on this case as part of the three judge panel on the
2240:, by: Frohock, Christina M., National Security & Armed Conflict Law Review, 2015, Vol. 6, p1-24.
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has filed notice with several federal judges, and given notice to hundreds of detainees, that the
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entitled to humane treatment under the Geneva Conventions. This declaration appears not to cover
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any procedural improprieties that might occur in particular cases can be reviewed in those cases.
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520:
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2238:
The Eyes of the World: Charges, Challenges, and Guantánamo Military Commissions After Hamdan II
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1068:
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that focuses primarily on issues of jurisdiction, and was joined by Justices Thomas and Alito.
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790:
727:
The case was argued before the court on March 28, 2006. Katyal argued on behalf of Hamdan, and
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382:
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1213:, it is nevertheless meritless insofar as the President has accepted the determination of the
1128:
from the bench when the decision was announced, the first time he did so since his dissent in
2381:
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825:(UCMJ), or authorized by statute. As to the statutory authorization, there is nothing in the
463:
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2012:
President Bush and Japanese Prime Minister Koizumi Participate in a Joint Press Availability
1975:
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2342:
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1398:) indicated Congress would work quickly to authorize tribunals, while influential Senator
8:
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467:
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138:
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may have raised again the issue of which court would hear cases such as Hamdan's. The
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did not join Stevens' opinion as to several parts, largely on the grounds of judicial
74:
2839:
2764:
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2263:
2253:
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2002:, October 20, 2006, Matt Apuzzo, Associated Press Writer, retrieved October 20, 2006.
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Supreme Court's Ruling in Hamdan Means Warrantless Eavesdropping is Clearly Illegal
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909:
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Under the terms of the Geneva Convention, al Qaeda and its members are not covered.
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On the first rule Alito argued that not all changes during the course of a trial
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1008:
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applied to a member of the U.S. military who was being tried before a military "
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2283:
In Pursuit of Justice; Prosecuting Terrorism Cases in the Federal Courts (2009)
1391:
1386:
However, even among Senate Republicans, there were conflicting views. Senators
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963:
744:
462:, who with a legal team filed a petition for Hamdan in US District Court for a
238:
210:
493:. It determined that he was eligible for detention by the United States as an
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420 U.S. 738 (1975) precludes Supreme Court review was similarly rejected.
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736:
728:
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543:
246:
222:
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Petition for a writ of certiorari: Brief for the respondents in opposition
2335:
397:); and whether courts can enforce the articles of the Geneva Conventions.
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Newsflash: Pentagon Agrees to Abide by Supreme Court Ruling – Or Does It?
1656:
1576:
1422:
1399:
833:
701:
2666:
1325:
1298:". Alito asserts these rules cannot make the commissions illegitimate.
1015:, joined as to parts I and II by Justices Souter, Ginsburg, and Breyer.
2296:
The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power
1920:
The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power
1852:
The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power
1466:
1108:
before it finished its work; Scalia argues that likewise, the military
917:
847:
Evidence judged to have any probative value may be admitted, including
697:
154:
104:
1602:
In Loss for Bush, Supreme Court Blocks War-Crimes Trials at Guantanamo
970:(R-AZ), and includes falsified quotations attributed to other persons.
851:, unsworn live testimony, and statements gathered through torture; and
303:
Thomas, joined by Scalia; Alito (all but Parts I, II–C–1, and III–B–2)
287:
Kennedy (in part), joined by Souter, Ginsburg, Breyer (Parts I and II)
2684:"George Clooney To Direct Matt Damon In Aaron Sorkin's War On Terror"
2614:
2539:
Department of Defense Military Commission Order No. 1, March 21, 2002
1462:
1380:
1302:
1174:
555:
489:
to challenge their detention, Hamdan was granted a review before the
100:
2483:
Groups File Amicus Briefs in Case Involving Osama Bin Laden's Driver
2416:"U.S. Supreme Court Official Reporter's Transcript of Oral Argument"
599:
2513:
2475:
2441:
1976:"Q & A: Military Commissions Act of 2006: Military Commissions"
1829:
1699:
United States Court of Appeals for the District of Columbia Circuit
1241:
were appointed and established in accordance with domestic law, and
1187:
1109:
821:
by the "laws of war", as codified by Congress in Article 21 of the
741:
United States Court of Appeals for the District of Columbia Circuit
569:
536:
United States Court of Appeals for the District of Columbia Circuit
2055:
316:
Roberts took no part in the consideration or decision of the case.
2642:
967:
848:
579:
337:, Arts. 21 & 36; Detainee Treatment Act of 2005 (DTA) §1005;
271:
Stevens (Parts V and VI–D–iv), joined by Souter, Ginsburg, Breyer
2638:"The Nation's Second-Highest Court" Upholds Military Commissions
700:
to hear the case. The petition was filed on behalf of Hamdan by
2661:
2579:
2569:
1657:
Court bars efforts to try terrorist before military commissions
1428:
40:
2576:
Hamdan, Common Article 3 and the True Spirit of the Law of War
1183:
836:, to the majority these necessarily include the UCMJ and the
420:
2622:
Court permits terrorists to be tried by military commissions
1437:. In particular, it may undermine the Bush administration's
2982:
Guantanamo Bay captives legal and administrative procedures
2632:
Protecting America's Freedom: National Security and Defense
1088:
958:
that the Scalia dissent cites was inserted into the Record
454:
of March 21, 2002. He was assigned a defense counsel, LCDR
440:
2520:
U.S. Court of Appeals for the District of Columbia Circuit
483:(2004), which established that detainees had the right of
2728:
2687:
525:
United States District Court for the District of Columbia
858:
These deviations made the commissions violate the UCMJ.
2277:
National Security Law for Policymakers and Law Students
1094:
Finally, Justice Scalia chastises the Court for taking
3002:
United States Supreme Court cases of the Roberts Court
2175:"Khadr remains in detention after all charges dropped"
1270:, 317 U. S. 1 (1942), and the Court acknowledges that
2252:
1487:
List of United States Supreme Court cases, volume 548
514:
311:
Alito, joined by Scalia, Thomas (Parts I through III)
2610:
Bin Laden driver charged in first Guantanamo hearing
2586:
U.S. Charges Yemeni Described as Bin Laden Bodyguard
1734:
Hamdan, Salim v. Rumsfeld, Donald (Secy. of Defense)
1711:"Supreme Court to hear challenge to Gitmo tribunals"
928:", either in the Geneva Conventions, in the earlier
19:
For the case involving a United States citizen, see
2135:
1743:
Medill, Northwestern University, November 11, 2005.
1098:jurisdiction of the case and draws an analogy with
764:
Justice Stevens, the author of the Court's opinion.
2038:"Warner Is Uncertain on Legislation for Tribunals"
1639:Bin Laden's driver outmanoeuvres Guantanamo trials
724:provided the additional legal counsel for Hamdan.
554:Military commissions are legitimate forums to try
1402:suggested a cautious and deliberative response.
755:
450:, established by the Department of Defense under
2953:
2259:All the Laws but One: Civil Liberties in Wartime
1456:
954:The majority opinion notes that language in the
519:After reviewing Hamdan's habeas petition, Judge
2299:, New York: Farrar, Straus and Giroux, p.
2141:
2102:"Detainees May Test Reach of Guantánamo Ruling"
2058:on slate.com, from Timothy Noah, July 11, 2006.
1922:. New York: Farrar, Straus and Giroux, p. 285.
1854:. New York: Farrar, Straus and Giroux, p. 300.
696:On November 7, 2005, the Supreme Court granted
2658:Why Hamdan is Right about Conspiracy Liability
2147:"Military panels hear captives' side of story"
1832:", slate.com, by Emily Bazelon, June 29, 2006.
1722:Jurist, University of Pittsburgh School of Law
962:the legislation had been enacted, by Senators
435:. In 2002, he was sent by the U.S. to its new
2714:
2634:, Washington Legal Foundation, July 15, 2005.
2566:: The Supreme Court Affirms International Law
1274:recognized that the statutory predecessor of
2972:Extrajudicial prisoners of the United States
2203:
1962:Webster's Third New International Dictionary
1429:Implications for theories of executive power
1193:Referring to the Court's recent decision in
781:The Stevens opinion began with the issue of
423:who worked as a bodyguard and chauffeur for
2977:George W. Bush administration controversies
2544:
2450:"Full text transcript of the oral argument"
1316:
778:, which commanded a majority only in part.
477:Following the U.S. Supreme Court ruling in
431:in the fall of 2001 and turned over to the
279:Breyer, joined by Kennedy, Souter, Ginsburg
2721:
2707:
2353:: Establishing a Constitutional Process",
1524:Hamdan v. Rumsfeld, Supreme Court Syllabus
939:
500:The defendants in this case included many
2896:Federal Bureau of Investigation v. Fazaga
1791:
1789:
1492:List of United States Supreme Court cases
1163:Youngstown Sheet & Tube Co. v. Sawyer
684:Learn how and when to remove this message
589:
381:raises several legal issues: Whether the
2904:Federal Bureau of Investigation v. Fikre
1675:High Court Sidesteps Guantanamo Bay Case
1286:was no different from the present case.
999:
995:
759:
2407:Supreme Court (slip opinion) (archived)
2317:
2172:
2035:
1383:echoed the plan to appeal to Congress.
1168:Authorization for Use of Military Force
974:
827:Authorization for Use of Military Force
2954:
2355:U.S. Senate Committee on the Judiciary
2292:
2069:U.S. will give detainees Geneva rights
2026:, June 30, 2006, White House Archives.
2014:, June 29, 2006, White House Archives.
2000:US: Courts No Longer Open to Detainees
1786:
1543:
1541:
1539:
1066:of the Constitution, Scalia points to
735:, argued on behalf of the government.
733:Solicitor General of the United States
620:Please improve this article by adding
2702:
2598:Fourth Guantanamo Detainee Is Charged
2551:High Court Rejects Detainee Tribunals
2532:
2262:. New York: William Morrow & Co.
2099:
1806:. Supreme Court of the United States.
1451:Foreign Intelligence Surveillance Act
899:
578:Congress authorized such activity by
28:2006 United States Supreme Court case
2872:Clapper v. Amnesty International USA
2690:. September 23, 2009. Archived from
1624:Charge Sheets for Salim Ahmed Hamdan
1449:without warrants as required by the
1320:
593:
2185:Canwest MediaWorksPublications Inc.
1768:"US court rejects Guantanamo trial"
1628:United States Department of Defense
1536:
1141:and therefore not protected by the
1115:
1029:
558:because they have been approved by
13:
2848:Holder v. Humanitarian Law Project
2366:
2246:
2112:
1234:because the military commissions:
1221:
515:District and Appeals Court rulings
355:case in which the Court held that
107:5185; 19 Fla. L. Weekly Fed. S 452
46:Supreme Court of the United States
14:
3013:
2997:United States Supreme Court cases
2384:557 (2006) is available from:
2361:
2289: (archived November 11, 2009)
2173:Alberts, Sheldon (June 4, 2007).
1594:
2078:", by Anne Plummer Flaherty, AP.
1362:Military Commissions Act of 2006
1324:
888:Combatant Status Review Tribunal
823:Uniform Code of Military Justice
785:, denying the U.S. government's
718:Seattle University School of Law
706:Georgetown University Law Center
598:
491:Combatant Status Review Tribunal
472:Uniform Code of Military Justice
369:Uniform Code of Military Justice
39:
2992:United States military case law
2231:
2166:
2100:Lewis, Neil A. (July 1, 2006).
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1375:The passage and signing of the
452:Military Commission Order No. 1
295:Scalia, joined by Thomas, Alito
2962:2006 in United States case law
2503:"Text of the July 15th ruling"
2090:Marty Lederman, July 11, 2006.
2036:Zernike, Kate (July 1, 2006).
1686:
1668:
1650:
1632:
1617:
1569:
1517:
1081:. He points in a footnote to
791:Detainee Treatment Act of 2005
756:Stevens' opinion for the Court
157:granted, 126 S. Ct. 622 (2006)
1:
2931:Republic of Sudan v. Harrison
1511:
1457:Charges dismissed/new charges
1013:an opinion concurring in part
984:a one-page concurring opinion
743:. Critics called for Justice
622:secondary or tertiary sources
437:Guantanamo Bay detention camp
404:
1461:On June 5, 2007, Hamdan and
351:, 548 U.S. 557 (2006), is a
16:2006 U.S. Supreme Court case
7:
2626:Washington Legal Foundation
2487:Physicians for Human Rights
2074:September 13, 2007, at the
1662:Washington Legal Foundation
1480:
365:detainees at Guantanamo Bay
353:United States Supreme Court
10:
3018:
2967:Donald Rumsfeld litigation
2939:Opati v. Republic of Sudan
2318:Happold, Matthew (2007), "
2124:November 22, 2008, at the
1830:Not Live From Capitol Hill
1366:U.S. Department of Justice
789:under Section 1005 of the
408:
333:, Common Arts. 2 & 3;
18:
2923:Republic of Iraq v. Beaty
2914:
2823:
2813:United States v. Zubaydah
2737:
2293:Mahler, Jonathan (2008),
2024:Press Gaggle by Tony Snow
1918:Mahler, Jonathan (2008).
1850:Mahler, Jonathan (2008).
1529:December 7, 2020, at the
1471:unlawful enemy combatants
1101:Schlesinger v. Councilman
866:It erroneously relied on
796:Schlesinger v. Councilman
776:the opinion for the Court
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2729:Case law related to the
2676:New York Review of Books
2545:News reports, commentary
2496:US Department of Justice
1447:National Security Agency
1435:unitary executive theory
1360:Shortly thereafter, the
1317:Reaction to the decision
1196:Rapanos v. United States
752:the Geneva Conventions.
393:(including the UCMJ and
2832:United States v. Ressam
2324:Human Rights Law Review
1739:March 31, 2006, at the
1716:April 18, 2006, at the
1564:'s Supreme Court Online
1134:, 530 U.S. 914 (2000).
1048:Bruner v. United States
940:Addressing the dissents
720:. The Seattle law firm
497:or person of interest.
429:invasion of Afghanistan
2694:on September 23, 2009.
1938:126 S. Ct. at 2823–49.
1555:June 14, 2006, at the
1206:Johnson v. Eisentrager
1148:Citing his dissent in
1069:Johnson v. Eisentrager
1043:Detainee Treatment Act
1005:
993:
897:
869:Johnson v. Eisentrager
765:
609:relies excessively on
590:Supreme Court decision
383:United States Congress
2987:Human rights case law
2667:Why the Court Said No
2322:and the Law of War",
2254:Rehnquist, William H.
1644:Sydney Morning Herald
1405:On July 7, 2006, the
1394:(the latter a former
1215:Department of Justice
1034:Justice Scalia wrote
1003:
996:Kennedy's concurrence
988:
892:
763:
737:Chief Justice Roberts
464:writ of habeas corpus
439:at its naval base in
375:ratified by the U.S.
145:2004); reversed, 415
99:126 S. Ct. 2749; 165
55:Decided June 29, 2006
53:Argued March 28, 2006
2462:on February 16, 2017
2428:on February 16, 2017
2281:Human Rights First:
1757:(AP) March 26, 2006.
1577:"Hamdan v. Rumsfeld"
1443:domestic wiretapping
1407:Secretary of Defense
1228:a seven page dissent
1036:a dissenting opinion
975:Breyer's concurrence
956:Congressional Record
633:"Hamdan v. Rumsfeld"
534:On July 15, 2005, a
506:Secretary of Defense
357:military commissions
2864:Ashcroft v. al-Kidd
2797:al-Marri v. Spagone
2749:Rumsfeld v. Padilla
2738:Guantanamo Bay and
2336:10.1093/hrlr/ngm010
1841:126 S. Ct. at 2799.
1724:, November 7, 2005.
1683:, January 19, 2005.
1665:, November 9, 2004.
1647:, November 9, 2004.
1396:military prosecutor
1131:Stenberg v. Carhart
548:Stephen F. Williams
540:A. Raymond Randolph
538:three-judge panel:
448:military commission
361:Bush administration
235:Ruth Bader Ginsburg
162:Questions presented
2789:Boumediene v. Bush
2773:Hamdan v. Rumsfeld
2679:, August 10, 2006.
2652:Hamdan v. Rumsfeld
2618:, August 25, 2004.
2564:Hamdan v. Rumsfeld
2533:Pentagon documents
2374:Hamdan v. Rumsfeld
2351:Hamdan v. Rumsfeld
1817:Hamdan v. Rumsfeld
1799:Hamdan v. Rumsfeld
1694:Hamdan v. Rumsfeld
1611:The New York Times
1549:Hamdan v. Rumsfeld
1533:, pg. 4., point 4.
1505:Boumediene v. Bush
1336:. You can help by
1238:qualify as courts,
1006:
900:Plurality sections
838:Geneva Conventions
766:
708:and Lt. Commander
470:and United States
468:Geneva Conventions
417:Salim Ahmed Hamdan
415:The plaintiff was
411:Salim Ahmed Hamdan
395:treaty obligations
373:Geneva Conventions
367:violated both the
348:Hamdan v. Rumsfeld
331:Geneva Conventions
199:Associate Justices
34:Hamdan v. Rumsfeld
2949:
2948:
2840:Ashcroft v. Iqbal
2765:Hamdi v. Rumsfeld
2320:Hamdan v Rumsfeld
2310:978-0-374-22320-5
1928:978-0-374-22320-5
1860:978-0-374-22320-5
1819:, p. 66, note 61.
1680:Los Angeles Times
1608:, as reported by
1354:
1353:
1311:rules of evidence
1180:Osama bin Laden's
1151:Hamdi v. Rumsfeld
1143:Geneva convention
1139:illegal combatant
1084:Hamdi v. Rumsfeld
1064:Suspension Clause
1054:signing statement
930:Hague Conventions
815:Suspension Clause
787:motion to dismiss
772:John Paul Stevens
769:Associate Justice
694:
693:
686:
668:
480:Hamdi v. Rumsfeld
344:
343:
21:Hamdi v. Rumsfeld
3009:
2888:Tanzin v. Tanvir
2880:Ziglar v. Abbasi
2856:Snyder v. Phelps
2805:Kiyemba v. Obama
2723:
2716:
2709:
2700:
2699:
2695:
2646:, July 20, 2005.
2628:, July 15, 2005.
2606:, July 14, 2004.
2594:, July 14, 2004.
2572:, June 30, 2006.
2559:, June 29, 2006.
2522:, July 15, 2005.
2517:
2509:
2507:
2498:, December 2004.
2479:
2471:
2469:
2467:
2461:
2455:. Archived from
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2421:. Archived from
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2357:, July 11, 2006.
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2145:(June 4, 2007).
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1614:, June 29, 2006.
1606:Associated Press
1598:
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1587:
1573:
1567:
1545:
1534:
1521:
1370:habeas petitions
1349:
1346:
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1293:
1116:Thomas's dissent
1030:Scalia's dissent
934:Nuremberg Trials
904:Because Justice
716:, an alumnus of
689:
682:
678:
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556:enemy combatants
456:Charles D. Swift
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184:Court membership
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2591:Washington Post
2582:, July 3, 2006.
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2216:Washington Post
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2191:on June 6, 2007
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1334:needs expansion
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1182:declaration of
1157:Ex parte Quirin
1122:Clarence Thomas
1118:
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1009:Justice Kennedy
1004:Justice Kennedy
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920:precedent (cf.
906:Anthony Kennedy
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419:, a citizen of
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2219:. June 7, 2007
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2762:
2759:
2758:
2757:Rasul v. Bush
2754:
2751:
2750:
2746:
2745:
2743:
2741:
2740:habeas corpus
2736:
2732:
2731:War on Terror
2724:
2719:
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2712:
2710:
2705:
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2693:
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2269:0-688-05142-1
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2180:National Post
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2057:
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2043:
2039:
2032:
2025:
2020:
2013:
2008:
2001:
1996:
1981:
1977:
1971:
1964:
1963:
1956:
1949:
1944:
1935:
1929:
1925:
1921:
1915:
1909:at 2810–2823.
1908:
1903:
1896:
1891:
1884:
1879:
1873:at 2799–2809.
1872:
1867:
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1500:
1499:
1498:Rasul v. Bush
1495:
1493:
1490:
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1388:Arlen Specter
1384:
1382:
1378:
1373:
1371:
1367:
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1339:
1335:
1332:This section
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1113:
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1107:
1106:court-martial
1103:
1102:
1097:
1092:
1090:
1086:
1085:
1080:
1079:
1078:habeas corpus
1073:
1071:
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1065:
1060:
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846:
843:
842:
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839:
835:
830:
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818:
816:
812:
811:
806:
805:court-martial
802:
798:
797:
792:
788:
784:
779:
777:
773:
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762:
753:
749:
746:
742:
738:
734:
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710:Charles Swift
707:
703:
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685:
677:
666:
663:
659:
656:
652:
649:
645:
642:
638:
635: –
634:
630:
629:Find sources:
623:
617:
616:
612:
607:This article
605:
601:
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595:
584:
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532:
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526:
522:
512:
510:
507:
503:
502:United States
498:
496:
492:
488:
487:
486:habeas corpus
482:
481:
475:
473:
469:
465:
461:
457:
453:
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444:
442:
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433:United States
430:
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314:
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302:
298:
294:
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270:
266:
262:
258:
255:Case opinions
253:
248:
244:
240:
236:
232:
228:
224:
220:
216:
212:
208:
204:
201:
198:
196:
193:
191:Chief Justice
190:
189:
187:
182:
177:
172:
165:
160:
156:
152:
148:
144:
140:
137:granted, 344
136:
135:
134:habeas corpus
131:Petition for
130:
126:
121:
118:
117:Oral argument
115:
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102:
96:
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2464:. Retrieved
2457:the original
2430:. Retrieved
2423:the original
2373:
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2327:
2323:
2319:
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2237:
2233:
2221:. Retrieved
2214:
2205:
2193:. Retrieved
2189:the original
2178:
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2156:. Retrieved
2152:Miami Herald
2150:
2137:
2114:
2105:
2095:
2083:
2063:
2050:
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2031:
2019:
2007:
1995:
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1979:
1970:
1960:
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1947:
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1934:
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1914:
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1771:
1762:
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1660:
1652:
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1596:
1584:. Retrieved
1580:
1571:
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1496:
1475:
1460:
1432:
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1342:
1338:adding to it
1333:
1308:
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1271:
1265:
1263:
1259:
1247:
1231:
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783:jurisdiction
780:
767:
750:
729:Paul Clement
726:
722:Perkins Coie
695:
680:
671:
661:
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647:
640:
628:
608:
544:John Roberts
533:
518:
499:
484:
478:
476:
445:
414:
399:
378:
377:
347:
346:
345:
321:Laws applied
247:Samuel Alito
242:
230:
223:David Souter
218:
206:
195:John Roberts
132:
123:Case history
92:
63:
25:
2512:(67.7
1980:www.hrw.org
1950:at 2849–55.
1423:black sites
1400:John Warner
1211:Eisentrager
1126:his dissent
1110:commissions
966:(R-SC) and
834:laws of war
702:Neal Katyal
391:federal law
327:U.S. Const.
284:Concurrence
276:Concurrence
139:F. Supp. 2d
2956:Categories
2474:(301
2440:(301
1778:January 5,
1512:References
1467:Omar Khadr
1280:§ 821
1255:§ 836
932:or at the
926:conspiracy
918:common law
832:As to the
801:Councilman
698:certiorari
644:newspapers
611:references
405:Background
105:U.S. LEXIS
103:723; 2006
71:Docket no.
2615:USA Today
2343:Testimony
2056:Geneva-22
1985:April 27,
1754:USA Today
1586:April 27,
1381:Tony Snow
1345:June 2020
1303:prejudice
1175:overt act
910:parsimony
714:U.S. Navy
674:June 2020
458:from the
389:violated
268:Plurality
153:, 2005);
151:D.C. Cir.
101:L. Ed. 2d
81:Citations
2824:Domestic
2466:June 27,
2432:June 27,
2372:Text of
2256:(1998).
2122:Archived
2072:Archived
1897:at 2808.
1885:at 2804.
1772:BBC News
1737:Archived
1714:Archived
1562:Duke Law
1553:Archived
1527:Archived
1481:See also
1463:Canadian
1188:al Qaeda
1120:Justice
570:al-Qaeda
560:Congress
460:Navy JAG
260:Majority
113:Argument
2643:FindLaw
2389:Cornell
2285:at the
2223:June 7,
2195:June 4,
2158:June 4,
1959:Citing
1566:, 2005.
1445:by the
968:Jon Kyl
849:hearsay
712:of the
658:scholar
580:statute
523:of the
363:to try
308:Dissent
300:Dissent
292:Dissent
174:Holding
2942:(2020)
2934:(2019)
2926:(2009)
2915:Others
2907:(2024)
2899:(2022)
2891:(2020)
2883:(2017)
2875:(2013)
2867:(2011)
2859:(2011)
2851:(2010)
2843:(2009)
2835:(2008)
2816:(2022)
2808:(2010)
2800:(2009)
2792:(2008)
2784:(2008)
2776:(2006)
2768:(2004)
2760:(2004)
2752:(2004)
2662:JURIST
2580:JURIST
2570:JURIST
2510:
2472:
2438:
2410:
2404:
2401:
2398:Justia
2395:
2392:
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2266:
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1858:
1465:youth
1284:Quirin
1278:
1272:Quirin
1253:
1232:Hamdan
1096:equity
1011:wrote
982:wrote
922:Quirin
774:wrote
731:, the
660:
653:
646:
639:
631:
379:Hamdan
245:
243:·
241:
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231:·
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207:·
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143:D.D.C.
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2506:(PDF)
2460:(PDF)
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2380:
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1184:jihad
1124:read
960:after
665:JSTOR
651:books
421:Yemen
155:cert.
141:152 (
128:Prior
2468:2017
2434:2017
2382:U.S.
2305:ISBN
2264:ISBN
2225:2007
2197:2007
2160:2007
1987:2022
1924:ISBN
1856:ISBN
1780:2010
1588:2022
1581:Oyez
1441:for
1421:and
1390:and
1290:time
1160:and
1089:CSRT
637:news
546:and
441:Cuba
339:AUMF
335:UCMJ
149:33 (
147:F.3d
94:more
86:U.S.
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2688:MTV
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