Cases

al-Marri v.
Spagone
From Wikipedia, the free encyclopedia
al-Marri v. Spagone, 555 U.S. 1220 (2009), was a

legal case in which the United States Supreme Court
had to decide whether individuals can be imprisoned
indefinitely for suspected wrongdoing without being
al-Marri v. Spagone
charged with a crime and tried before a jury.[1][2]

The case was dismissed as moot on March 6, 2009,
by the application of the Acting Solicitor General to
transfer petitioner from military custody to the
Supreme Court of the United States

Decided March 6, 2009
Full case
Ali Saleh Kahlah al-Marri, Petitioner v.
name
Daniel Spagone, United States Navy
Commander, Consolidated Naval Brig
Docket nos. 08-368
(http://www.supremecourt.gov/Search.aspx?
FileName=/docketfiles/08-368.htm)
Citations 555 U.S. 1220 (more)
129 S. Ct. 1545; 173 L. Ed. 2d 671; 2009
U.S. LEXIS 1777; 77 U.S.L.W. 3502; 21
Fla. L. Weekly Fed. S 701
Prior
Writ of Certiorari to the United States Court
history
of Appeals for the Fourth Circuit
Subsequent Dismissed as moot
history
Questions presented
Whether U.S. residents can be imprisoned indefinitely for
suspected wrongdoing without being charged with a
crime and tried before a jury.
Court membership
custody of the Attorney General.[3]

The Fourth Circuit had ruled that a United States
resident cannot be held on suspicion of terrorist
activities, but must be charged in a domestic court or
released.
Contents
1 Background
2 Fourth Circuit decision
3 See also
4 References
5 External links
Background
Chief Justice
John G. Roberts
The federal government arrested Ali Saleh Kahlah

al-Marri on December 12, 2001, and indicted him on
charges two years later on apparently unrelated
charges of credit card fraud and assorted crimes of
dishonesty.
Associate Justices
John P. Stevens Antonin Scalia
Anthony Kennedy David Souter
Clarence Thomas Ruth Bader Ginsburg
Stephen Breyer Samuel Alito
On June 23, 2003, President George W. Bush's

administration determined al-Marri to be an enemy
combatant and ordered him transferred to the custody of the U.S. Department of Defense.[4] The federal
government asserts he is a sleeper agent for the terrorist organization Al-Qaeda, sent to the United States to
explore disruptions of the country's financial systems. This was said to justify his detention without trial in
civilian courts. Since that time, he has been held at the naval brig in Charleston, South Carolina. He is the
only known enemy combatant to be held in military custody on U.S. soil (others are being held at the
Guantanamo Bay detention camp in Cuba).
1
Fourth Circuit decision

Judge Diana Gribbon Motz wrote the plurality opinion, which held that, as a legal resident of the United
States who was originally detained in the United States, al-Marri could not be held in military custody as an
enemy combatant. The court also held that the Military Commissions Act does not strip federal courts of
jurisdiction to hear habeas corpus petitions from alleged enemy combatants arrested and detained within the
borders of the United States. The court ordered the government to either charge al-Marri with a crime,
initiate deportation proceedings, or release him.
Dissenting from the opinion, Judge Henry E. Hudson indicated that he believed Bush possessed the
authority to detain alleged sleeper agents such as al-Marri, "the type of stealth warrior used by Al Qaeda".[5]
The decision of Judge Motz was subsequently set aside and the case was reheard en banc on August 22,
2007, by the entire Fourth Circuit Court of Appeals. In a plurality opinion issued on July 15, 2008, the court
held that the president did have authority to hold Al-Marri in military custody, but that Al-Marri was
entitled to a greater, but undefined, degree of due process in his habeas corpus petition than had been
accorded by the court below. The Supreme Court granted certiorari.
Shortly following his becoming president, President Barack Obama ordered Al-Marri transferred to civilian
authorities, and the Supreme Court dismissed the case as moot on March 6, 2009. Al-Marri was
subsequently prosecuted in civilian court and pleaded guilty. He had been imprisoned for eight years
without charges.
See also
Habeas corpus
United States v. Munsingwear, Inc., 340 U.S. 36 (https://supreme.justia.com/cases/federal/us/340/36/)
(1950)
References
1. 08-368 (http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/08-368.htm)
2. Kravetz, Andy (2008-12-05). "U.S. Supreme Court to hear al-Marri's case"
(http://www.pjstar.com/homepage/x596332629/U-S-Supreme-Court-to-hear-al-Marris-case). Peoria Journal
Star.
3. [1] (http://www.supremecourt.gov/orders/courtorders/030609zr.pdf)
4. Enemy Combatant Designation by President Bush
(http://news.findlaw.com/nytimes/docs/almarri/usalmarri62303ecord.html).
5. Complete decision on Findlaw.com (http://news.findlaw.com/nytimes/docs/almarri/almarriwright61107opn.pdf),
Hudson's Dissent, at pg. 86.
External links
En Banc decision of the Fourth Circuit
(http://www.ca4.uscourts.gov/Opinions/Published/067427A.P.pdf)
Complete decision on Findlaw.com
(http://news.findlaw.com/nytimes/docs/almarri/almarriwright61107opn.pdf)
2
Coverage (http://www.nytimes.com/2007/06/11/washington/11cndcnd-combatant.html?hp) from the

New York Times
Al-Marri v. Spagone (https://archive.org/details/org.c-span.201952-1) is available for free download
at the Internet Archive
Retrieved from "http://en.wikipedia.org/w/index.php?title=Al-Marri_v._Spagone&oldid=650309305"
Categories: United States Supreme Court cases War on Terror captives' habeas corpus petitions
2007 in United States case law United States Supreme Court cases of the Roberts Court
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Bas v. Tingy
Bas v. Tingy, 4 U.S. (4 Dall.) 37 was a case argued

before the United States Supreme Court in 1800.
Bas v. Tingy
Contents
1 Background
2 Opinion of the Court
3 Subsequent developments
4 References

Argued August 14, 1800
Decided August 15, 1800
Full case Bas, Plaintiff in Error v. Tingy, Defendant in
name
Error
Citations 4 U.S. 37
(https://supreme.justia.com/us/4/37/case.html)
(more)
1 L. Ed. 731; 1800 U.S. LEXIS 307; 4 Dall.
37
Court membership
Background
Relations were deteriorating with France and
Congress began enacting laws providing armed
American ships greater ability to reclaim American
ships taken by the French. In 1798, Congress passed
legislation allowing for payment of 1/8 full value of
the vessel, to be paid to the recaptor, for ships
reclaimed from the French. However, in 1799,
Congress enacted another law allowing the recaptors
of a private vessel 1/2 salvage value of the ship,
where retaken after 96 hours from the enemy. This
was to be paid by the vessel's owner and without any
deduction.
Chief Justice
Oliver Ellsworth
Associate Justices
William Cushing William Paterson
Samuel Chase Bushrod Washington
Alfred Moore
Case opinions
Majority Moore; Washington; Chase; Paterson
On April 21, 1799, Tingy, captain of the Ganges recaptured the Eliza, belonging to Bas, after the French
had taken it three weeks before. Bas attempted to pay Tingy 1/8 value, pursuant to the 1798 law, while
Tingy demanded 1/2 payment, in accordance with the 1799 law. After lower courts ruled that Tingy was
entitled to 1/2 value, the case was appealed to the United States Supreme Court.
Opinion of the Court

Justice Bushrod Washington, writing first for the Court, noted that the difference between the two laws was
that the 1798 dealt with ships recaptured from the French, while the 1799 law dealt with ships recaptured
from the enemy. This turned on the issue of "was France the enemy?" and the larger question of, "were we
at war?" Washington proceeded to recognize the difference between a perfect war, where Congress declares
war upon another country, and an imperfect war, where Congress does not declare but rather authorizes
hostilities. Congress had, in this case, raised an army, suspended commerce with France and dissolved a
treaty. This also allowed them to defend themselves against French ships and reclaim American ships as
prize. This was, by all accounts, an imperfect war, qualifying France as an enemy under the 1799 law.
4
Justice Samuel Chase took a separate approach to the same conclusion, noting that in a perfect war
"...operations are restricted and regulated by the jus belli, forming a part of the law of nations," but in an
imperfect war "its extent and operation depend on our municipal laws." With Congress authorizing
hostilities, this was an imperfect war against France, making them the enemy and validating the 1799 law.
Justice William Paterson deemphasized the nature of the war, perfect versus imperfect, noting only that we
were at war "so far as we may proceed in hostile operations." For the duration of this war, France was the
enemy, and the 1799 law applied.
Subsequent developments
The decision of the lower courts was affirmed. The 1799 act of Congress governed the dispute and Captain
Tingy was awarded 1/2 the value of the Eliza.
References
Bas v. Tingy at the US Supreme Court Center (http://supreme.justia.com/us/4/37/)
Bas v. Tingy at The Founders' Constitution (http://presspubs.uchicago.edu/founders/documents/a1_8_11s10.html)
Retrieved from "http://en.wikipedia.org/w/index.php?title=Bas_v._Tingy&oldid=644643301"
Categories: United States Supreme Court cases 1800 in United States case law
United States Supreme Court cases of the Ellsworth Court
This page was last modified on 29 January 2015, at 02:31.
Boumediene v. Bush
Boumediene v. Bush, 553 U.S. 723 (2008), was a

writ of habeas corpus submission made in a civilian
court of the United States on behalf of Lakhdar
Boumediene, a naturalized citizen of Bosnia and
Herzegovina, held in military detention by the
United States at the Guantanamo Bay detention
Boumediene v. Bush
camps in Cuba.[1][2][3][4] Guantanamo Bay is not

formally part of the United States, and under the
terms of the 1903 lease between the United States
and Cuba, Cuba retained ultimate sovereignty over
the territory, while the United States exercises

Argued December 5, 2007
Decided June 12, 2008
Full case
Lakhdar Boumediene, et al., Petitioners
name
v.
George W. Bush, President of the United
States, et al.
Docket nos. 06-1195
Citations
553 U.S. 723 (more)
128 S. Ct. 2229; 2008 WL 2369628; 2008
U.S. LEXIS 4887
Argument
Oral argument
(http://www.oyez.org/cases/20002009/2007/2007_06_1195/argument/061195_20071205-argument.mp3)
Holding
Foreign terrorism suspects held at the Guantanamo Bay
Naval Base in Cuba have constitutional rights to challenge
their detention in United States courts. 476 F.3d 981,
reversed and remanded.
Court membership
complete jurisdiction and control.[5] The case was

consolidated with habeas petition Al Odah v.
United States. It challenged the legality of
Boumediene's detention at the United States Naval
Station military base in Guantanamo Bay, Cuba as
well as the constitutionality of the Military
Commissions Act of 2006. Oral arguments on the
combined cases were heard by the Supreme Court
on December 5, 2007.
On June 12, 2008, Justice Kennedy delivered the
opinion for the 5-4 majority, holding that the
prisoners had a right to the habeas corpus under the
United States Constitution and that the Military
Commissions Act of 2006 was an unconstitutional
suspension of that right. The Court applied the
Insular Cases, by the fact that the United States, by
virtue of its complete jurisdiction and control,
maintains "de facto" sovereignty over this territory,
while Cuba retained ultimate sovereignty over the
territory, to hold that the aliens detained as enemy
combatants on that territory were entitled to the
writ of habeas corpus protected in Article I, Section
9 of the U.S. Constitution. The lower court had
expressly indicated that no constitutional rights
(not merely the right to habeas) extend to the
Guantanamo detainees, rejecting petitioners'
arguments, but the Supreme Court held that
fundamental rights afforded by the Constitution
Chief Justice
John G. Roberts
Associate Justices
extend to the Guantanamo detainees as well.[6][7]

6
Case opinions
Majority
Kennedy, joined by Stevens, Souter,
Ginsburg, Breyer
Concurrence Souter, joined by Ginsburg, Breyer
Dissent
Roberts, joined by Scalia, Thomas, Alito
Dissent
Scalia, joined by Roberts, Thomas, Alito
Laws applied
Along with Rasul v. Bush (2004), Hamdi v.

Rumsfeld (2004), and Hamdan v. Rumsfeld (2006),
this is a landmark case in the Court's detainee jurisprudence.
Art. 1, Sec. 9 of the U.S. Const.
Contents
1 Background
3 Other opinions
3.1 Justice Souter's concurrence
3.2 Justice Scalia's dissent
3.3 Chief Justice Roberts' dissent
4 Aftermath
5 Release to France
6 Detainees whose cases were consolidated with Boumediene v. Bush
7 See also
8 References
9 External links
Background
Following the September 11 attacks in 2001, the United States launched a "Global War on Terror". In
November 2001, President Bush asserted authority to try captives from the War before "military
commissions" instead of through the civilian court system. Many captives from the war were held at Camp
X-Ray, which was opened at the United States' Guantanamo Bay Naval Base in Cuba in January 2002.
While the United States has an indefinite lease on Guantanamo Bay, Cuba still maintained de jure
sovereignty over the area. Because of the mixed jurisdiction, the Bush administration stated that the captives
are not subject to American law and have no right to protection under the United States Constitution nor the
American justice system.
Beginning in 2002, family and friends of approximately 200 captives initiated habeas corpus submissions to
challenge the detentions. These submissions eventually worked their way through the courts, and on June
28, 2004, the United States Supreme Court issued its decision in Rasul v. Bush (2004). In a 6-3 decision, the
Court dismissed the administration's argument that the Naval Base is outside civilian courts' jurisdiction and
ruled that the captives must be given an opportunity to hear and attempt to refute whatever evidence had
caused them to have been classified as "enemy combatants". As a result, the Department of Defense created
the Combatant Status Review Tribunals.
At the end of 2005, the United States Congress passed the Detainee Treatment Act, which explicitly states
that all captives held by the United States are protected against torture. The Act restricted the submission of
additional habeas corpus submissions to the courts, though it did not affect already filed habeas corpus
submissions.
Seven months later, the Supreme Court ruled in Hamdan v. Rumsfeld (2006) that only Congress and not the
Executive Branch has the Constitutional authority to set up military commissions to try captives taken in the
"war on terror". Congress passed the Military Commissions
Act of 2006 in October, creating Military
7
Commissions similar to those set up by the Executive Branch and retaining most of the features that had
concerned critics. For example, the Commissions were empowered to hear and consider "hearsay evidence",
suspects were restricted from attempting to refute or learn about evidence against them that was classified,
and submission of evidence extracted from persons using "enhanced interrogation techniques," prior to the
passage of the Detainee Treatment Act, was allowed. The Act attempted to mandate that all outstanding
habeas corpus submissions on behalf of the captives should be quashed.
In February 2007, a three-judge panel of the Appeals Court for the D.C. Circuit considered Lakhdar
Boumediene's habeas corpus submission, and in a split decision, upheld the Congress's authority to quash
the outstanding habeas corpus submissions.[8] In April 2007, the Court declined to review the Circuit
Court's decision.
Within a few months, it reversed this decision; on June 29, 2007, it granted a writ of certiorari to
Boumediene and his co-defendants.[3][9]
Over the following six months, in addition to the briefs submitted by the United States government and the
petitioner, over 20 amicus briefs were filed on behalf of Boumediene and his co-defendants by the
American Civil Liberties Union, the Center for Constitutional Rights,[10][11] the American Bar
Association,[12] and numerous other persons and organizations.[13]
The Supreme Court received over two dozen briefs of amicus curiae on the case, including some written
strictly on the history and application of Habeas Corpus in England, Scotland, Hanover, Ireland, Canada,
British-controlled territories, India, and the United States. Twenty-two amicus briefs were filed in support of
the petitioners, Boumediene and Al Odah, and four were filed in support of the respondents, the Bush
Administration.
Oral arguments were held on December 5, 2007,[14] and the Supreme Court announced its decision on June
12, 2008.[15]

The majority opinion, written by Justice Anthony Kennedy, found that the constitutionally guaranteed right
of habeas corpus review applies to persons held in Guantanamo and to persons designated as enemy
combatants on that territory.[16][17][18][19] If Congress intends to suspend the right, the Court said that an
adequate substitute must offer the prisoner a meaningful opportunity to demonstrate he is held pursuant to
an erroneous application or interpretation of relevant law, and the reviewing decision-making must have
some ability to correct errors, to assess the sufficiency of the government's evidence, and to consider
relevant exculpating evidence.[16][17][18][19] The court found that the petitioners had met their burden of
establishing that Detainee Treatment Act of 2005 failed to provide an adequate substitute for habeas corpus.
Kennedy's majority opinion begins with an over-twenty page review of the history of habeas corpus in
England from its roots in the due process clause of Magna Carta of 1215 to the 19th century. Next, the
opinion surveys American historical jurisprudence on the writ from 1789 until shortly after World War II,
concentrating on the application of habeas corpus to aliens and territories outside the borders of the United
States that still fall under United States control, comparing these areas to the Channel Islands, where the
writ did apply. While noting that habeas corpus did not apply in Scotland, a country under the control of the
8
English crown (as the same monarch held the crown of Scotland), the Court distinguished that fact by
stating that Scotland kept its unique system of laws even after union with England in 1707. The Court
turned to Ireland for a more amenable historical example, pointing out that while it was nominally a
sovereign country in the 18th century, English habeas corpus review did apply there since Ireland was under
de facto English control and shared the English legal system.
The majority opinion rejected the government's argument comparing the habeas corpus restriction under the
MCA to those affected by the Antiterrorism and Effective Death Penalty Act of 1996, which were ruled
constitutional after a suspension clause challenge. The Court explained the restrictions of AEDPA on
habeas review were not a complete suspension on habeas corpus, but simply procedural limitations, such as
limiting the number of successive habeas petitions a prisoner can file, or mandating a one-year time limit for
the filing of federal habeas review that begins when the prisoner's judgment and sentence become final.
The main distinction between the MCA and AEDPA, the Court went on to explain, was that AEDPA
applies in practice to those prisoners serving a sentence after having been tried in open court and whose
sentences have been upheld on direct appeal, whereas the MCA suspends the application of the writ to those
detainees whose guilt has not yet been legally determined. In other words, the comparison to AEDPA was
found by the majority to be misplaced, in that AEDPA's limitations on habeas review stemmed from cases
that had already been to trial, whereas the cases involving MCA had not been to trial and therefore habeas
review would have been appropriate.
The Court also concluded that the detainees are not required to exhaust review procedures in the court of
appeals before pursuing habeas corpus actions in the district court. The majority distinguished between de
jure and de facto sovereignty, finding that the United States had in effect de facto sovereignty over
Guantanamo. Distinguishing Guantanamo base from historical precedents, this conclusion allowed the court
to conclude that Constitutional protections of habeas corpus run to the U.S. military base at Guantanamo
Bay, Cuba.
In the majority ruling, Justice Kennedy called section 7 "not adequate".[16][17][18][19] He explained, "to hold
that the political branches may switch the constitution on or off at will would lead to a regime in which they,
not this court, 'say what the law is'."[20] The decision struck down section 7 of the MCA, but left intact the
remainder of the MCA and the Detainee Treatment Act.
Other opinions
Justice Souter's concurrence
Justice Souter's concurrence was joined by Justices Ginsburg and Breyer. According to Justice Souter,
"subsequent legislation eliminated the statutory habeas jurisdiction" over the claims brought by Guantanamo
Bay detainees, "so that now there must be constitutionally based jurisdiction or none at all."[21] Citing the
Supreme Court's decision in Rasul v. Bush (2004), he added that the ""[a]pplication of the habeas statute to
persons detained at [Guantanamo] is consistent with the historical reach of the writ of habeas corpus."[22]
Justice Souter pointed to the lengthy imprisonments, some of which have exceeded six years, as "a factor
insufficiently appreciated by the dissents."[22] He denied the dissenters' criticism that the Court's majority
"is precipitating the judiciary into reviewing claims that the military (subject to appeal to the Court of
Appeals for the District of Columbia Circuit) could handle within some reasonable period of time."[22]
9
Justice Scalia's dissent

Justice Scalia's dissent was joined by Chief Justice Roberts and justices Alito and Thomas. Justice Scalia
argued that "the procedures prescribed by Congress in the Detainee Treatment Act provide the essential
protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists
for judicial intervention beyond what the Act allows."[23] The commission of terrorist acts by some former
prisoners at Guantanamo Bay after their release "illustrates the incredible difficulty of assessing who is and
who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself
to rigorous evidence collection."[24] A consequence of the Court's majority decision will be that "how to
handle enemy prisoners in this war will ultimately lie with the branch [the judiciary] that knows least about
the national security concerns that the subject entails."[25] A conflict between the Military Commissions Act
and the Suspension Clause "arises only if the Suspension Clause preserves the privilege of the writ for aliens
held by the United States military as enemy combatants at the base in Guantanamo Bay, located within the
sovereign territory of Cuba."[26]
Justice Scalia added that the Court's majority "admits that it cannot determine whether the writ historically
extended to aliens held abroad, and it concedes (necessarily) that Guantanamo Bay lies outside the
sovereign territory of the United States."[27] Justice Scalia pointed out that Johnson v. Eisentrager (where
the Supreme Court decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.administered German prison in China) "thus heldheld beyond any doubtthat the Constitution does not
ensure habeas for aliens held by the United States in areas over which our Government is not sovereign."[28]
According to Justice Scalia, the Court's majority's "analysis produces a crazy result: Whereas those
convicted and sentenced to death for war crimes are without judicial remedy, all enemy combatants detained
during a war, at least insofar as they are confined in an area away from the battlefield over which the United
States exercises 'absolute and indefinite' control, may seek a writ of habeas corpus in federal court." Justice
Scalia added that the Constitution allows suspension of the writ of habeas corpus only in cases of rebellion
or invasion, both domestic disturbances; he asked "[i]f the extraterritorial scope of habeas turned on flexible,
'functional' considerations, as the [Court's majority] holds, why would the Constitution limit its suspension
almost entirely to instances of domestic crisis?"[29]
Chief Justice Roberts' dissent

Chief Justice Roberts' dissent focused on whether the process afforded the Guantanamo detainees in the
Detainee Treatment Act were an adequate substitute for the Habeas protections the Constitution guaranteed.
By arguing in the affirmative, he implied that the issue of whether the detainees had any Suspension Clause
rights was moot (since, if they did, he found that those rights were not violated anyway). This line of
reasoning was arguably more in line with the plain reading of Johnson v. Eisentrager (1950) (which denied
German prisoners of war habeas rights primarily due to both practical logistical concerns and the
determination that they had been afforded an adequate substitute: traditional military war crimes trials,
which complied with the Geneva Conventions) than that of Justice Scalia, and also avoided the more
controversial and complicated issue of whether the detainees were entitled to file habeas petitions in the first
place.
Aftermath
10
On November 20, 2008, following his review of their case files, Judge Richard J. Leon of the United States
District Court for the District of Columbia ordered the release of five Guantnamo detainees, including
Boumediene.[30] Judge Leon ordered the continued detention of a sixth, Belkacem Bensayah.
In the decision, he wrote: "To allow enemy combatancy to rest on so thin a reed would be inconsistent with
this court's obligation; the court must and will grant their petitions and order their release. This is a unique
case. Few if any others will be factually like it. Nobody should be lulled into a false sense that all of the ...
cases will look like this one."[30][31][32][33]
On October 28, 2009, President Obama signed into law the Military Commissions Act of 2009, which
amended the Military Commissions Act of 2006 and provided new rules for the handling of commission
trials and commission defendants' rights.[34]
In Boumediene v. Bush (2008), the Supreme Court had ruled for the first time that Guantnamo detainees
were entitled to submit habeas corpus petitions directly to federal judges in Washington to determine
whether the U.S. government had enough evidence to justify their continued open-ended detention without
charge.
The decision said in part:
We do consider it uncontroversial that the privilege of habeas corpus entitles the prisoner to
a meaningful opportunity to demonstrate he is being [unlawfully] held.[35] The decision added:
The habeas court must have sufficient authority to conduct a meaningful review of both the
cause for detention and the Executives power to detain.[35]
Following the Boumediene decision, federal judges began closely scrutinizing the quality of evidence
offered by the government. Government lawyers started losing cases.
In 2010 the D.C. Circuit Court began requiring federal judges to stop submitting the governments evidence
to such rigorous examination. The appeals court said judges must embrace a pro-government presumption
that the Guantnamo evidence is reliable. Government lawyers had argued that such a presumption was
justified because much of the evidence against the detainees was collected under battlefield conditions amid
the fog of war. Specifically, the US appeals court required federal judges hearing Guantnamo cases to
accord a special presumption of accuracy to US intelligence reports being used to justify continued
detention.[35]
This ruling by the appeals court provoked strong criticism from attorneys representing detainees at
Guantanamo as well as from within the appeals court. Lawyers said such a special presumption does not
comply with the requirements set by the Supreme Court in its Boumediene decision.
The court of appeals through its actions in this and other cases has created a regime in which
Guantnamo habeas cases are becoming exercises in futility, wrote the Washington lawyer S.
William Livingston, in his brief on behalf of Adnan Farhan Abdul Latif.[35] The entire point of
11
the habeas hearing is to force the government to justify its detention of people who have been
neither charged nor convicted, not to allow it to skate by with presumption, Livingston
said.[35]
The Appeals Court Judge David Tatel wrote a dissenting opinion in the Latif case. He said the appeals
courts requirement of a pro-government presumption in favor of US intelligence reports comes perilously
close to suggesting that whatever the government says must be treated as true.[35]
According to a study by legal scholars at the Center for Policy and Research at Seton Hall University School
of Law, between 2008 and July 2010, Guantnamo detainees won 56 percent of their habeas challenges in
federal court. After July 2010 and the appeals court ruling, the win rate fell to 8 percent. That means that
prior to July 2010, a federal judge agreed with 19 of 34 detainees who claimed there was insufficient
evidence to justify his open-ended detention at Guantnamo and ordered the release of each. After July
2010, a federal judge agreed with only 1 of 12 detainees. The change is attributed to rulings by the federal
appeals court, which has taken up 19 of the Guantnamo habeas cases and reversed or remanded every case
in which a federal judge ordered a detainees release.[35]
Release to France
On May 15, 2009, Boumediene was transferred to France, where he has relatives.[36][37] His wife and
children, who had moved from Bosnia to Algeria following his arrest, have joined him in France since his
release.[38]
Detainees whose cases were consolidated with Boumediene v. Bush

[39]
Belkacem Bensayah
Saber Lahmar
Mohammed Nechle
Mustafa Ait Idir
Lakhdar Boumediene
Hadj Boudella
See also
Algerian Six
List of United States Supreme Court cases, volume 553
Ex Parte Quirin
Ex Parte Milligan
Johnson v. Eisentrager
References
12
1. Marjorie Cohn (February 27, 2007). "Why Boumediene Was Wrongly Decided"
(http://jurist.law.pitt.edu/forumy/2007/02/why-boumediene-was-wrongly-decided.php). The Jurist. Retrieved
2007-04-16.
2. "Al Odah v United States" (http://ccrjustice.org/ourcases/current-cases/al-odah-v.-united-states). Center for
Constitutional Rights. April 27, 2005.
3. "Lakhdar Boumediene, et al. v. George W. Bush docket" (http://www.oyez.org/cases/20002009/2007/2007_06_1195/docket/). Oyez.org. August 24, 2007. Retrieved 2007-11-06.
4. Dworkin, Ronald (August 14, 2008). "Why It Was a Great Victory" (http://www.nybooks.com/articles/21711).
New York Review of Books. Retrieved May 26, 2012.
5. CONSEJO DE SALUD PLAYA DE PONCE v JOHNNY RULLAN, SECRETARY OF HEALTH OF THE
COMMONWEALTH OF PUERTO RICO
(http://puertoricoadvancement.org/Documents/Consejo%20De%20Salud%20Playa%20De%20Ponce%20V.%20J
ohnny%20Rullan%20%20Secretary%20of%20Health%20of%20the%20Commonwealth%20of%20Puerto%20Rico.pdf) (PDF), The
United States District Court for the District of Puerto Rico, retrieved 2009-12-20
6. BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.
(http://www.law.cornell.edu/supct/html/06-1195.ZS.html), Cornell University Law School, retrieved 2009-12-23
7. BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=06-1195), FindLaw For Legal
Professionals, retrieved 2009-12-23
8. "Lakhdat Boumedienne, detainee, Camp Delta, et al., appellants v. George W. Bush, President of the United
States, et al., appellees" (http://pacer.cadc.uscourts.gov/docs/common/opinions/200702/05-5062b.pdf) (PDF).
United States Department of Justice. February 20, 2007. Retrieved 2007-11-06.
9. Jeannie Shawl (June 29, 2007). "Supreme Court to hear Guantanamo Bay detainee habeas cases"
(http://jurist.law.pitt.edu/paperchase/2007/06/supreme-court-to-hear-guantanamo-bay.php). The Jurist. Retrieved
2007-11-06.
10. "Boumediene v. Bush and Al Odah v. United States Amicus brief"
(http://www.aclu.org/scotus/2007term/31441res20070824/31441res20070824.html). American Civil Liberties
Union. August 24, 2007. Retrieved 2007-11-06.
11. "Boumediene v. Bush and Al Odah v. United States Amicus brief"
(http://www.aclu.org/pdfs/scotus/boumediene_v_bush_acluamicus.pdf) (PDF). American Civil Liberties Union.
August 24, 2007. Retrieved 2007-11-06.
12. "Brief Amicus Curiae of the American Bar Association in Support of Petitioners"
(http://www.abanet.org/irr/amicus/boumediene.pdf) (PDF). American Bar Association. August 24, 2007.
Retrieved 2007-11-07.
13. "Al Odah v. United States" (http://ccrjustice.org/ourcases/current-cases/al-odah-v.-united-states). Center for
Constitutional Rights. January 2008. Retrieved 2008-03-13.
14. Joan Biskupic (December 5, 2007). "Justices grill attorneys in Gitmo case hearings"
(http://www.usatoday.com/news/washington/2007-12-05-gitmo-court_N.htm). USA Today. Retrieved
2007-12-05.
15. Ben Winograd (June 12, 2007). "Today's Opinions"
(http://web.archive.org/web/20080614214500/http://www.scotusblog.com/wp/todays-opinions-61208/).
SCOTUSblog. Archived from the original (http://www.scotusblog.com/wp/todays-opinions-61208/) on 2008-0614. Retrieved 2008-06-12.
16. Mark Sherman (June 12, 2008). "High Court: Gitmo detainees have rights in court"
(http://www.webcitation.org/query?
url=http%3A%2F%2Fap.google.com%2Farticle%2FALeqM5iS3b8PdQ_oVlJA2eFtDvhnnTUvFwD918J1QO0
&date=2008-06-12). Associated Press. Archived from the original
(http://ap.google.com/article/ALeqM5iS3b8PdQ_oVlJA2eFtDvhnnTUvFwD918J1QO0) on 2008-06-12.
17. Mark Sherman (June 12, 2008). "Terror suspects can challenge detention: U.S. Supreme Court"
(http://www.theglobeandmail.com/servlet/story/RTGAM.20080612.wgitmo0612/BNStory/International/home).
Globe and Mail. Retrieved 2008-06-12.
13 Guantanamo detainees again"
18. Mark Sherman (June 12, 2008). "High Court sides with
18. Mark Sherman (June 12, 2008). "High Court sides with Guantanamo detainees again"
(http://web.archive.org/web/20080624232719/http://www.montereyherald.com/ci_9562577?nclick_check=1).
Montorey Herald. Archived from the original (http://www.montereyherald.com/ci_9562577?nclick_check=1) on
2008-06-24. Retrieved 2008-06-12.
19. James Oliphant (June 12, 2008). "Court backs Gitmo detainees" (http://www.webcitation.org/query?
url=http%3A%2F%2Fweblogs.baltimoresun.com%2Fnews%2Fpolitics%2Fblog%2F2008%2F06%2Fcourt_sides
_with_gitmo_detaine.html&date=2008-06-12). Baltimore Sun. Archived from the original
(http://weblogs.baltimoresun.com/news/politics/blog/2008/06/court_sides_with_gitmo_detaine.html) on 200806-12. Retrieved 2008-06-12.
20. "Stuck with Guantnamo" (http://www.economist.com/world/na/displaystory.cfm?story_id=11585328), The
Economist
21. US Supreme Court, Boumediene et al. v. Bush, President of the United States, et al., p. 79. No. 061195.[1]
(http://www.supremecourt.gov/opinions/07pdf/06-1195.pdf)
26. US Supreme Court, Boumediene et al. v. Bush, President of the United States, et al., p. 115-6. No. 061195.[6]
30. Glaberson, William (2008-11-20). "Judge Declares Five Detainees Held Illegally"
(http://www.nytimes.com/2008/11/21/us/21guantanamo.html). New York Times.
31. Judge Leon's order (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1166-276)
32. "Judge orders release of 5 terror suspects at Gitmo"
(http://news.yahoo.com/s/ap/20081121/ap_on_go_ot/guantanamo_detainees)
33. "US judge orders Algerians freed" (http://news.bbc.co.uk/2/hi/americas/7740543.stm)
34. Richey, Warren (2009-10-29). "Obama endorses military commissions for Guantnamo detainees"
(http://www.csmonitor.com/USA/Justice/2009/1029/p02s01-usju.html). The Christian Science Monitor.
35. Richey, Warren (11 June 2012). "Supreme Court deals blow to Guantnamo prisoners challenging their
detention" (http://www.csmonitor.com/USA/Justice/2012/0611/Supreme-Court-deals-blow-to-Guantanamoprisoners-challenging-their-detention). The Christian Science Monitor. Retrieved 30 September 2012.
36. "US sets free test case detainee" (http://news.bbc.co.uk/2/hi/americas/8052728.stm). BBC News. 2009-05-15.
37. "Guantanamo Detainee Released To Join Relatives In France" (http://www.webcitation.org/query?
url=http%3A%2F%2Fwww.rttnews.com%2FArticleView.aspx%3FId%3D951209%26SMap%3D1&date=200905-15). RTT News. 2009-05-15. Archived from the original (http://www.rttnews.com/ArticleView.aspx?
Id=951209&SMap=1) on 2009-05-15.
38. Sayare, Scott (May 26, 2012). "After Guantnamo, Starting Anew, in Quiet Anger"
(http://www.nytimes.com/2012/05/26/world/europe/lakhdar-boumediene-starts-anew-in-france-after-years-atguantanamo.html?). New York Times. p.A6.
39. "RESPONDENTS RESPONSE TO COURTS AUGUST 7, 2006 ORDER"
(http://web.archive.org/web/20080627111630/http://www.pegc.us/archive/OK_v_Bush/govt_resp_to_GK_20060
815.pdf) (PDF). United States Department of Defense. August 15, 2006. Archived from the original
(http://www.pegc.us/archive/OK_v_Bush/govt_resp_to_GK_20060815.pdf) (PDF) on 2008-06-27. Retrieved
2008-06-23.
14
External links
Petitioner's attorney's website with all the briefs
Wikisource has original

text related to this article:
Boumediene v. Bush
(U.S. Court of Appeals)
(http://www.mayerbrown.com/probono/commitment/article.asp?id=3706&nid=3193)
Full text of the Supreme Court's decision in the case
Audio: complete oral arguments before the court (http://www.oyez.org/cases/20002009/2007/2007_06_1195/argument) from Oyez.org
Retrieved from "http://en.wikipedia.org/w/index.php?title=Boumediene_v._Bush&oldid=645400958"
Categories: United States Supreme Court cases Suspension Clause case law
2008 in United States case law Guantanamo captives' habeas corpus petitions
United States Supreme Court cases of the Roberts Court
This page was last modified on 3 February 2015, at 03:16.
15
Case Briefs Constitutional Law Committee of U.S. Citizens Living In Nicaragua v.
Search for a case brief...
Reagan
CommitteeofU.S.CitizensLivingInNicaraguav.Reagan
PostedonAugust24,2014|ConstitutionalLaw|Tags:ConstitutionalLawCaseBriefs
1986 I.C.J. 14
Facts: 1986, the International Court of Justice held that US financial support of paramilitary activities by the Contras against the Sandinista government in Nicaragua
violated both a treaty between the countries and customary international law. But, the US withdrew from the ICJs jurisdiction before the courts decision. P seeks
injunctive and declaratory relief. The D.Ct. dismissed the complaint on political question grounds. P appeals here.
Issue: Whether alleged violations of the UN Article 94 can be remedied by an American court or whether they can only be redressed on an international level. In short,
do violations of international law have domestic legal consequences?
Holding: Yes, international law has legal consequences unless the US constitution or US law contradicts. Treaty obligations may be overridden by subsequent
inconsistent statute. Therefore, the court cant say as a matter of domestic law that congressional enactments violate prior treaties.
The court also held that in determining whether a treaty is self-executing in the sense of its creating private enforcement rights, courts look to the intent of the
signatory parties as manifested by the language of the instrument.
The court wasnt specifically saying whether the US had upheld its treaty obligations as a matter of law in this case.
Argued that it is not political question because its international customary law and therefore not a political issue. These argument do not rise to the level of jus
cogen categories in order to be customary international law.
1. Jus Cogens: Defined Principles of international law so fundamental that no nation may ignore them or attempt to contract out of them through treaties.
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17
Dames & Moore v. Regan

Dames & Moore v. Regan, 453 U.S. 654
Dames & Moore v. Regan

Argued June 24, 1981
Decided July 2, 1981
Full case name Dames & Moore v. Donald T. Regan, Secretary
of the Treasury, et al.
Citations
453 U.S. 654
(more)
101 S.Ct. 2972; 69 L.Ed.2d 918
Holding
Executive orders dissolving judgments and suspending pending
civil claims against Iranian government were constitutional.
Court membership
Chief Justice
Warren E. Burger
Associate Justices
William J. Brennan, Jr. Potter Stewart
Byron White Thurgood Marshall
Harry Blackmun Lewis F. Powell, Jr.
William Rehnquist John P. Stevens
Case opinions
Majority
Rehnquist
Concurrence Stevens, in part
Concur/dissent Powell
Laws applied
IEEPA (50 U.S.C. 1702)
(https://supreme.justia.com/cases/federal/us/453/654/) (1981) was a United States Supreme Court case

dealing with President Jimmy Carter's Executive Order 12170, which froze Iranian assets in the United
States on November 14, 1979, in response to the Iran hostage crisis which began on November 4, 1979.
Contents
1 Background
2 Holding
18
2 Holding
3 Reaction
4 See also
5 Further reading
6 References
7 External links
Background
After the inauguration of Ronald Reagan on January 20, 1981, the Reagan administration agreed with Iran
to terminate legal proceedings in U.S. courts involving claims by U.S. nationals against Iran, to nullify
attachments against Iranian property entered by U.S. courts to secure any judgments against Iran, and to
transfer such claims from U.S. courts to a newly created arbitration tribunal. These agreements were
implemented by executive orders.
Holding
In a 8-1 decision, the opinion of the court was delivered by Justice William H. Rehnquist, which upheld
these actions by the Reagan administration and "dismissed a $3 million lawsuit from private firm Dames &
Moore against Treasury Secretary Don Regan, filed to recover a debt incurred by the Shah of Irans
government."[1] The Court found that the administration's actions were authorized by law by the
International Emergency Economic Powers Act (IEEPA). The Supreme Court also approved the suspension
of claims filed in U.S. courts even though no specific statutory provision authorized that step. In so doing,
the Court relied on inferences drawn from related legislation, a history of congressional acquiescence in
executive claims settlement practices, and past decisions recognizing broad executive authority. The Court
also "substantially refined the applicable test" of the seminal 1952 case of Youngstown Sheet & Tube Co. v.
Sawyer[2] and cemented Justice Robert H. Jackson's concurring opinion in that case as "canonical".[3]
Rehnquist wrote the opinion in this "highly complex and historic case" in eight days.[4]
Reaction
This decision has been criticized for taking "an exceptionally deferential view of executive power",[5] in
particular by relying on inferences from statutes that do not directly deal with certain subjects at hand and,
especially, on legislative acquiescence in executive activity.
After Rehnquist's death, Justice John Paul Stevens cited Dames & Moore as one of his two favorite
Rehnquist opinions, along with Leo Sheep Co. v. U.S.[4]
See also
19
Further reading
Suing the Tobacco and Lead Pigment Industries: Government Litigation as Public Health
Prescription (http://www.press.umich.edu/titleDetailDesc.do?id=291047) by Donald G. Gifford. Ann
Arbor, University of Michigan Press, 2010. ISBN 978-0-472-11714-7
The Legacy of Dames & Moore v. Regan: The Twilight Zone of Concurrent Authority Between the
Executive and Congress (http://heinonline.org/HOL/Page?
handle=hein.journals/tndl79&id=303&collection=journals&index=), 79 Notre Dame L. Rev 291
(2003).
References
1. Wohlsetter, John (2011-03-02) Hostage Hell is a Civilized Country's Dilemma
(http://www.humanevents.com/article.php?id=42074), Human Events
2. McCarthy, Andrew (2010-02-04) Merely Organized to Convict
(http://www.nationalreview.com/articles/print/229076), National Review
3. Griffin, Stephen (2008-10-10) A "Domestic" Case? Mysteries of Youngstown
(http://balkin.blogspot.com/2008/10/domestic-case-mysteries-of-youngstown.html), Balkinization
4. Denniston, Lyle (2009-12-10) WHR enters Courts pantheon (http://www.scotusblog.com/2009/12/whr-enterscourts-pantheon/), SCOTUSblog
5. Liptak, Adam and Purdum, Todd (2005-07-31) As Clerk for Rehnquist, Nominee Stood Out for Conservative
Rigor (http://www.nytimes.com/2005/07/31/politics/politicsspecial1/31roberts.html?
ei=5094&hp=&ex=1122868800&partner=homepage&=;en=35aafb2de426faac;amp=&pagewanted=all), New
York Times
External links
Dames & Moore v. Regan (1981) at Find Law (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?
navby=case&court=us&vol=453&page=668)
http://laws.findlaw.com/us/453/654.html
Case Brief for Dames & Moore v. Regan at LawSchoolCaseBriefs.net
(http://www.lawschoolcasebriefs.net/2013/12/dames-moore-v-regan-case-brief.html)
Retrieved from "http://en.wikipedia.org/w/index.php?
title=Dames_%26_Moore_v._Regan&oldid=649276715"
Categories: United States Supreme Court cases United States separation of powers case law
1981 in United States case law Executive orders of Ronald Reagan Sanctions against Iran
United States Supreme Court cases of the Burger Court IranUnited States relations
20
Dellums v. Bush
Dellums v. Bush, 752 F. Supp. 1141 (1990), was a D.C. Federal District Court decision by United States
District Judge Harold H. Greene, denying the plaintiffs, members of Congress, a preliminary injunction
against President George H.W. Bush to stop implementation of his orders directing the United States
military to fight in Iraq without first obtaining a declaration of war from Congress, the only branch
Constitutionally mandated to declare war.[1]
Fifty four members of Congress, including U.S. Representative Ron Dellums, sued George H.W. Bush in
1990 attempting to halt a preemptive military buildup in the Middle East in response to Iraq's invasion of
Kuwait. The plaintiff members of Congress asserted that military action without a declaration of war would
be unlawful under U.S. Const. art. I, 8, cl. 11 of the United States Constitution. The District Court held
that, although the plaintiff's claims were plausible, because the President had not yet initiated war-like
actions and only 54 members of Congress (53 members of the House and one member of the Senate) were
involved in the suit, and not a majority, the dispute was not ripe for adjudication at that time. Accordingly
the motion for preliminary injunction was denied.
Dellums is notable in that it is one of only a few cases in which the Federal Courts have considered whether
the War Powers Clause of the U.S. Constitution is justiciable in the courts. The Court in Dellums indicated
that, in that instance, it was, but because Congress had not yet acted as a majority, the lawsuit was
premature.
The reasoning used in Dellums has not escaped criticism by some authors as an intrusion on executive
power.
1. Article I, Section 8, clause 11, US Constitution
Retrieved from "http://en.wikipedia.org/w/index.php?title=Dellums_v._Bush&oldid=555087416"

Categories: United States district court cases Case law stubs
This page was last modified on 14 May 2013, at 17:54.
21
Ex parte Milligan
Ex parte Milligan, 71 U.S. (4 Wall.) 2
Ex parte Milligan

Argued March 5, 1866
Decided April 3, 1866
Full case name Ex parte Lambdin P. Milligan
Citations
71 U.S. 2
(more)
4 Wall. 2; 18 L. Ed. 281; 1866 U.S. LEXIS
861
Prior history This case came before the Court upon a
certificate of division from the judges of the
Circuit Court for Indiana, on a petition for
discharge from unlawful imprisonment.
Holding
Trying citizens in military courts is unconstitutional when
civilian courts are still operating. Trial by military tribunal is
constitutional only when there is no power left but the military,
and the military may validly try criminals only as long as is
absolutely necessary.
Court membership
Chief Justice
Salmon P. Chase
Associate Justices
James M. Wayne Samuel Nelson
Robert C. Grier Nathan Clifford
Noah H. Swayne Samuel F. Miller
David Davis Stephen J. Field
Case opinions
Majority
Davis, joined by Clifford, Field, Grier,
Nelson
Concur/dissent Chase, joined by Wayne, Swayne, Miller
Laws applied
U.S. Const., Habeas Corpus Suspension Act 1863
(https://supreme.justia.com/cases/federal/us/71/2/) (1866), was a United States Supreme Court case that

ruled that the application of military tribunals to citizens when civilian courts are still operating is
22
unconstitutional. It was also controversial because it was one of the first cases after the end of the American
Civil War.
Contents
1 Background of the case
2 Arguments
3 The Court's decision
3.1 Three types of military jurisdiction
4 Concurrence
5 See also
6 Notes
7 References
8 Further reading
9 External links
Background of the case

Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union
prisoner-of-war camps. Once the first prisoner of war camp was liberated, they planned to use the liberated
soldiers to help fight against the Government of Indiana and free other camps of Confederate soldiers. They
also planned to take over the state governments of Indiana, Ohio, and Michigan. When the plan leaked, they
were charged, found guilty, and sentenced to be hanged by a military court in 1864. However, their
execution was not set until May 1865, so they were able to argue the case after the Civil War ended.
Arguments
The argument for the United States was delivered by Benjamin F. Butler, a New York lawyer and state
legislator, and future Governor of Massachusetts.
The argument for the petitioner was delivered by Jeremiah S. Black (former United States Attorney General
and Secretary of State), James A. Garfield (congressman in his first ever courtroom argument, and future
President[1]), and New York lawyer David Dudley Field.
The Court's decision

The Supreme Court decided that the suspension of habeas corpus was lawful, but military tribunals did not
apply to citizens in states that had upheld the authority of the Constitution and where civilian courts were
still operating.
It observed further that during the suspension of the writ of habeas corpus, citizens may be only held
without charges, not tried, and certainly not executed by military tribunals; the writ of habeas corpus is not
the right itself but merely the ability to issue orders demanding the right's enforcement.
23
It is important to note the political environment of the decision. Post-Civil War, under a Republican
Congress, the Court was reluctant to hand down any decision that questioned the legitimacy of military
courts, especially in the occupied South. The President's ability to suspend habeas corpus independently of
Congress, a central issue, was not addressed, probably because it was moot with respect to the case at hand.
Though President Lincoln suspended the writ nationwide on September 24, 1862,[2] Congress ratified this
action almost six months later, on March 3, 1863, with the Habeas Corpus Suspension Act. Milligan was
detained in 1864, well after Congress formally suspended the writ. That notwithstanding, military
jurisdiction had been limited.
Three types of military jurisdiction

This case was also important in clarifying the scope of military jurisdiction
under the US Constitution. The justices held that:
Lambdin P. Milligan
There are under the Constitution three kinds of military jurisdiction:

one to be exercised both in peace and war; another to be exercised in
time of foreign war without the boundaries of the United States, or in
time of rebellion and civil war within states or districts occupied by
rebels treated [71 U.S. 2, 142] as belligerents; and a third to be
exercised in time of invasion or insurrection within the limits of the
United States, or during rebellion within the limits of states
maintaining adhesion to the National Government, when the public
danger requires its exercise. The first of these may be called
jurisdiction under MILITARY LAW, and is found in acts of Congress
prescribing rules and articles of war, or otherwise providing for the
government of the national forces; the second may be distinguished as
MILITARY GOVERNMENT, superseding, as far as may be deemed
expedient, the local law, and exercised by the military commander
under the direction of the President, with the express or implied
sanction of Congress; while the third may be denominated MARTIAL
LAW PROPER, and is called into action by Congress, or temporarily,
when the action of Congress cannot be invited, and in the case of
justifying or excusing peril, by the President, in times of insurrection or
invasion, or of civil or foreign war, within districts or localities where
ordinary law no longer adequately secures public safety and private
rights.
This distinction between martial law and military government was not commonly made before 1866. After
the Supreme Court's clarification in this landmark case however, it has continued to be used up to the
present day. Birkhimer describes the difference on page 1 of his opus Military Government and Martial Law
(3rd edition, 1914) by saying that
Military jurisdiction is treated in the following pages in its two branches of Military Government and
Martial Law. The former is exercised over enemy territory; the latter over loyal territory of the State
enforcing it.[3]
24
US Army Field Manual FM 27-10 The Law of Land Warfare, paragraph 362 states that
Military government is the form of administration by which an occupying power exercises
governmental authority over occupied territory. The necessity for such government arises from the
failure or inability of the legitimate government to exercise its functions on account of the military
occupation, or the undesirability of allowing it to do so.[4][5]
Concurrence
Five justices signed the majority opinion, with four others, Chief Justice Salmon P. Chase and Justices
Wayne, Swayne and Miller, concurring in the judgment but dissenting as to the Court's assertion that
Congress did not have the power to authorize military commissions in Indiana. Chief Justice Chase asserted
that the power of Congress "to authorize trials for crimes against the security and safety of the national
forces, may be derived from its constitutional power to raise and support armies and to declare war;" and
that while the civil courts "might be open and undisturbed in their functions... yet wholly incompetent to
avert threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators."[6]
See also
Ex parte Merryman
Ex parte Quirin
Hamdi v. Rumsfeld
Martial law
Supreme Court cases of the American Civil War
Notes
1. Peskin 1978, Allan. "Garfield: A Biography" (http://books.google.com/books?
id=SRmY164czTQC&lpg=PA333&ots=_6sr96kXjs&dq=peskin%20garfield%20milligan&pg=PA270#v=onepa
ge&q&f=false).
2. Amnesty to Political or State Prisoners.
3. William E. Birkhimer (1914). "Military Government and Martial Law"
(http://www.taiwanbasic.com/military/birkhimer01w.htm). Franklin Hudson Publishing Co., Kansas City,
Missouri. Retrieved 2012-04-08. "The distinction is important. Military government is thus placed within the
domain of international law, its rules the laws of war, while martial law is within the cognizance of municipal
law."
4. "FM 27-10 The Law of Land Warfare" (http://ac-support.europe.umuc.edu/~nstanton/Ch6.htm#p362).
Department of the Army. 1976-07-15. Retrieved 2012-04-08.
5. "FM 27-10 The Law of Land Warfare" (http://ac-support.europe.umuc.edu/~nstanton/Ch1.htm#p12). Department
of the Army. 1976-07-15. Retrieved 2012-04-08. "The most prominent distinction between military government,
as that term is used herein, and martial law is that the former is generally exercised in the territory of, or territory
formerly occupied by, a hostile belligerent and is subject to restraints imposed by the international law of
belligerent occupation, while the latter is invoked only in domestic territory, the local government and inhabitants
of which are not treated or recognized as belligerents, and is governed solely by the domestic law of the United
States."
6. One or more of the preceding sentences incorporates text from a publication now in the public domain:Rines,
George Edwin, ed. (1920). "Milligan, Ex Parte". Encyclopedia Americana.
25
References
Klaus, Samuel. The Milligan Case (http://books.google.com/books?id=MpVfFH7lRXUC&pgis=1).
New York: Da Capo Press, 1970.
Military Government and Martial Law (http://www.archive.org/details/militarygovmt00birk), by
William E. Birkhimer, third edition, revised (1914), Kansas City, Missouri, Franklin Hudson
Publishing Co.
FM 27-10 "The Law of Land Warfare," DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C.,
18 July 1956. (This manual supersedes FM 27-10, 1 October 1940, including C 1, 15 November 1944.
Changes required on 15 July 1976, have been incorporated within this document.) Chapter 6,
OCCUPATION [1] (http://www.globalsecurity.org/military/library/policy/army/fm/27-10/Ch6.htm)
Further reading
Rehnquist, William H. (1998). All the Laws but One: Civil Liberties in Wartime. New York: William
Morrow & Co. ISBN0-688-05142-1.
External links
Works related to Ex parte Milligan at Wikisource
Text of Ex parte Milligan, 71 U.S. 2 (1866) is available from: Findlaw
(http://laws.findlaw.com/us/71/2.html)Justia (http://supreme.justia.com/us/71/2/case.html)
Oyez, Official Supreme Court media, Ex Parte Milligan. (http://www.oyez.org/cases/18511900/1865/1865_0/)
Historical analysis of the case Elisheva Ruth Coleman Princeton University senior thesis
(http://web.princeton.edu/sites/jmadison/awards/2005-Coleman_Thesis.pdf)
Retrieved from "http://en.wikipedia.org/w/index.php?title=Ex_parte_Milligan&oldid=650909420"
Categories: 1866 in United States case law United States Supreme Court cases
United States habeas corpus case law United States Fourth Amendment case law
Grand Jury Clause case law United States Sixth Amendment jury case law
Federal court cases involving Indiana Indiana in the American Civil War
American Civil War prison camps Reconstruction Era Criminal cases in the Chase Court
26
Gulf of Tonkin Resolution

The Gulf of Tonkin Resolution or the

Southeast Asia Resolution, Pub.L. 88408
(http://legislink.org/us/pl-88-408),
78Stat.384 (http://legislink.org/us/stat-78384), enacted August10, 1964, was a joint
resolution that the United States Congress
passed on August 7, 1964, in response to the
Gulf of Tonkin incident.
It is of historical significance because it
gave U.S. President Lyndon B. Johnson
authorization, without a formal declaration
of war by Congress, for the use of
"conventional'' military force in Southeast
Asia. Specifically, the resolution authorized
the President to do whatever necessary in
order to assist "any member or protocol state
of the Southeast Asia Collective Defense
Treaty". This included involving armed
forces.
Gulf of Tonkin Resolution
Long title
A joint resolution "To promote the maintenance of

international peace and security in southeast Asia."
Nicknames
Southeast Asia Resolution
Enactedby the 88th United States Congress

Effective
August 10, 1964

Citations
Public
Law
88-408 (http://www.gpo.gov/fdsys/pkg/STATUTE78/pdf/STATUTE-78-Pg384.pdf)
Statutes at
Large
78Stat.384 (http://legislink.org/us/stat-78-384)
It was opposed in the Senate only by

Legislative history
Senators Wayne Morse (D-OR) and Ernest
Gruening (D-AK). Senator Gruening
Introduced in the House as H.J.Res. 1145
objected to "sending our American boys into
Passed the House on August 7, 1964(416-0
combat in a war in which we have no
(http://www.govtrack.us/congress/votes/88-1964/h197))
business, which is not our war, into which
Passed the Senate on August 7, 1964(88-2
we have been misguidedly drawn, which is
(http://www.govtrack.us/congress/votes/88-1964/s481))
steadily being escalated". (Tonkin Gulf
Signed into law by President Lyndon B. Johnson on
debate 1964) The Johnson administration
August 10, 1964
subsequently relied upon the resolution to
begin its rapid escalation of U.S. military
involvement in South Vietnam and open warfare between North Vietnam and the United States.
Contents
1 Background and Congressional action
2 Repeal
3 Notes
4 References
5 External links
27
Background and Congressional action

The USSMaddox, a U.S. destroyer, was conducting a DESOTO
patrol in the waters of the Gulf of Tonkin on August 2, 1964, when it
was attacked by three North Vietnamese Navy torpedo boats from
the 135th Torpedo Squadron,[1] which were attempting to close their
range on the Maddox for effective torpedo fire (1,000 yards was
maximum effective range for the torpedoes)[2][3] Maddox fired over
280 5-inch shells[4] and the boats expended their 6 torpedoes (all
misses) and some 14.5-mm machinegun fire. Breaking contact, the
combatants commenced going their separate ways, when the three
torpedo boats, T-333, T-336, and T-339 were then attacked by four
USN F-8 Crusader jet fighter bombers from the aircraft carrier
USSTiconderoga.[5] The Crusaders reported no hits with their Zuni
rockets, but scored hits on all three torpedo boats with their 20-mm
cannons, damaging all three boats. Two days later on August 4, the
Maddox and the destroyer Turner Joy both reported to be
under attack again, by North Vietnamese torpedo boats;
during this alleged engagement, the Turner Joy fired
approximately 220 3-inch & 5-inch shells at radar controlled
President Johnson as he signs the

resolution on August 10, 1964
surface targets.[6] Hanoi subsequently insisted that it had not

launched a second attack. A later investigation by the Senate
Foreign Relations Committee revealed that the Maddox had
been on an electronic intelligence (DESOTO) mission. It
also learned that the U.S. Naval Communication Center in
the Philippine Islands, in reviewing ships' messages, had
questioned whether any second attack had actually
occurred.[7] In 2005, an internal National Security Agency
historical study was declassified; it concluded that the
Maddox had engaged the North Vietnamese Navy on
August 2, but that there may not have been any North
Vietnamese Naval vessels present during the engagement of
August 4. The report stated:
It is not simply that there is a different story as to
what happened; it is that no attack happened that
night. [...]
In truth, Hanoi's navy was engaged in nothing that night but
the salvage of two of the boats damaged on August 2.[8] In 1965, President Johnson commented privately:
"For all I know, our Navy was shooting at whales out there."[9]
28
Within hours, President Johnson ordered the launching of retaliatory air strikes (Operation Pierce Arrow) on
the bases of the North Vietnamese torpedo boats and announced, in a television address to the American
public that same evening, that U.S. naval forces had been attacked. Johnson requested approval of a
resolution "expressing the unity and determination of the United States in supporting freedom and in
protecting peace in southeast Asia", stating that the resolution should express support "for all necessary
action to protect our Armed Forces", but repeated previous assurances that "the United States ... seeks no
wider war". As the nation entered the final three months of political campaigning for the 1964 elections (in
which Johnson was standing for election), the president contended that the resolution would help "hostile
nations ... understand" that the United States was unified in its determination "to continue to protect its
national interests".[10]
On August 6, U.S. Secretary of Defense Robert S. McNamara testified before a joint session of the Senate
Foreign Relations and Armed Services committees. He stated that the Maddox had been "carrying out a
routine mission of the type we carry out all over the world at all times" and denied that it had been in any
way involved in South Vietnamese patrol boat raids on the offshore islands of Hon Me and Hon Nieu on the
nights of July 30 and July 31.[7] The administration did not, however, disclose that the island raids, although
separate from the mission of the Maddox, had been part of a program of clandestine attacks on North
Vietnamese installations called Operation Plan 34A. These operations were carried out by U.S.-trained
South Vietnamese commandos under the control of a special operations unit of the U.S. Military Assistance
Command, Vietnam called the Studies and Operations Group.[11]
After fewer than nine hours of committee consideration and floor debate, Congress voted, on August 10,
1964, on a joint resolution authorizing the president "to take all necessary steps, including the use of armed
force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting
assistance in defense of its freedom". (H.J. RES 1145 1964) The unanimous affirmative vote in the House of
Representatives was 4160. (However, Republican Congressman Eugene Siler of Kentucky, who was not
present but opposed the measure, was "paired" with another member who favored the resolutioni.e., his
opposition was not counted, but the vote in favor was one less than it would have been.) The Senate
conferred its approval by a vote of 882. Some members expressed misgivings about the measure, but in the
end, Democratic Senators Wayne Morse of Oregon and Ernest Gruening of Alaska cast the only nay
votes.[12] At the time, Senator Morse warned that "I believe this resolution to be a historic mistake."[13]
Repeal
By 1967, the rationale for what had become a costly U.S. involvement in the Vietnam War was receiving
close scrutiny. With opposition to the war mounting, a movement to repeal the resolutionwhich war
critics decried as having given the Johnson administration a "blank check"began to gather steam.
An investigation by the Senate Foreign Relations Committee revealed that the Maddox had been on an
electronic intelligence collection mission off the North Vietnamese coast.[14] It also learned that the U.S.
Naval Communication Center in the Philippine Islands, in reviewing ships' messages, had questioned
whether any second attack had actually occurred.[7]
The administration of President Richard Nixon, which took office in January 1969, initially opposed repeal,
warning of "consequences for Southeast Asia [that] go beyond the war in Vietnam". In 1970 the
administration began to shift its stance. It asserted that its conduct of operations in Southeast Asia was based
29
not on the resolution but was a constitutional exercise of the President's authority, as Commander in Chief
of U.S. military forces, to take necessary steps to protect American troops as they were gradually
withdrawn[15] (the U.S. had begun withdrawing its forces from Vietnam in 1969 under a policy known as
"Vietnamization").
Mounting public opinion against the war eventually led to the repeal of the resolution, which was attached
to the Foreign Military Sales Act that Nixon signed in January 1971.[16] Seeking to restore limits on
presidential authority to engage U.S. forces without a formal declaration of war, Congress passed the War
Powers Resolution in 1973, over Nixon's veto. The War Powers Resolution, which is still in effect, sets
forth certain requirements for the President to consult with Congress in regard to decisions that engage U.S.
forces in hostilities or imminent hostilities.
Notes
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
Moise 1996, pp.50, 78.

Moise 1996, p.71.
Hanyok 2000.
Moise 1996, p.78.
Moise 1996, p.82.
Moise 1996, p.158.
NYT 1968.
Hanyok 2000, p.3.
KQED 2006.
President's Message to Congress 1964.
Andrad & Conboy 1999.
Kenworthy 1964.
Tonkin Gulf debate 1964.
Finney 1968.
NYT 1970.
NYT 1971.
References
Andrad, David; Conboy, Kenneth (August 1999). "The Secret Side of the Tonkin Gulf Incident"
(http://www.usni.org/navalhistory/Articles99/NHandrade.htm). Naval History.
Beito, David T.; Beito, Linda Royster (August 21, 2006). "The Christian Conservative Who Opposed
the Vietnam War" (http://hnn.us/articles/28879.html). History News Network.
Finney, John (January 31, 1968). "Tonkin Inquiry by Fulbright to Call McNamara". The New York
Times.
Hanyok, Robert J. "Skunks, Bogies, Silent Hounds, and the Flying Fish: The Gulf of Tonkin Mystery,
24 August 1964" (http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB132/relea00012.pdf),
Cryptologic Quarterly, Winter 2000/Spring 2001 Edition, Vol. 19, No. 4 / Vol. 20, No. 1.
Kenworthy, E.W. (August 8, 1964). "Resolution Wins". The New York Times.
Moise, Edwin E. (1996). Tonkin Gulf and the Escalation of the Vietnam War. The University of North
Carolina Press. ISBN0-8078-2300-7.
"Excerpts from McNamara's Testimony on Tonkin". The New York Times. February 25, 1968.
"Gulf of Tonkin Measure Voted In Haste and Confusion in 1964". The New York Times. June 25,
1970.
"Gulf of Tonkin Resolution is Repealed Without Furor" (http://select.nytimes.com/gst/abstract.html?
30
res=F10712FE3A55127B93C6A8178AD85F458785F9). The New York Times (United Press

International). January 14, 1971.
"Freedom of Information Past and Present" (http://www.pbs.org/now/politics/foia06.html). NOW on
PBS. KQED. March 17, 2006. Retrieved May 16, 2012.
"Excerpts from Senate Debate on Tonkin Gulf Resolution" (http://vietnam.vassar.edu/doc9.html).
Vassar College.
Wikisource: H.J. RES 1145
"Excerpts from President's Message to Congress"
(http://www.mtholyoke.edu/acad/intrel/tonkinsp.htm). Mount Holyoke College.
External links
Original Document: Tonkin Gulf Resolution
(http://www.footnote.com/viewer.php?image=4346698)
Ourdocuments.gov (http://www.ourdocuments.gov/doc.php?
Gulf of Tonkin
flash=true&doc=98)
Resolution
Peters,Gerhard; Woolley, John T. "Lyndon B. Johnson:
"Special Message to the Congress on U.S. Policy in Southeast Asia," August 5, 1964"
(http://www.presidency.ucsb.edu/ws/index.php?pid=26422#axzz2hl9fydBl). The American
Presidency Project. University of California - Santa Barbara.
Retrieved from "http://en.wikipedia.org/w/index.php?title=Gulf_of_Tonkin_Resolution&oldid=648814105"
Categories: Vietnam War History of the United States (196480)
United States foreign relations legislation Resolutions (law) 88th United States Congress
31
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 (2006), is a

case in which the Supreme Court of the United
States held that military commissions set up by the
Bush administration to try detainees at
Guantanamo Bay lack "the power to proceed
because its structures and procedures violate both
the Uniform Code of Military Justice and the four
Hamdan v. Rumsfeld
Geneva Conventions signed in 1949."[1]

Specifically, the ruling says that Common Article 3
of the Geneva Conventions was violated.

Full case
Salim Ahmed Hamdan, Petitioner v. Donald
name
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 General Jay Hood,
Commander Joint Task Force,
Guantanamo, Camp Echo, Guantanamo
Bay, Cuba; George W. Bush, President of
the United States
Docket nos. 05-184
Citations
548 U.S. 557 (more)
126 S. Ct. 2749; 165 L. Ed. 2d 723; 2006
U.S. LEXIS 5185; 19 Fla. L. Weekly Fed. S
452
Prior history Petition for habeas corpus granted, 344 F.
Supp. 2d 152 (D.D.C. 2004); reversed, 415
F.3d 33 (D.C. Cir., 2005); cert. granted, 126
S. Ct. 622 (2006)
Holding
Military commission to try Plaintiff is illegal and lacking
the protections required under the Geneva Conventions and
United States Uniform Code of Military Justice.
Court membership
The case considers whether the United States

Congress 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
that had been set up violated federal law (including
the Uniform Code of Military Justice and treaty
obligations), and whether courts can enforce the
articles of the 1949 Geneva Convention.[2]
An unusual aspect of the case was an amicus brief
filed by Senators Jon Kyl and Lindsey Graham,
which presented an extensive colloquy added to
the Congressional record as evidence that
"Congress was aware" that the Detainee Treatment
Act of 2005 would strip the Supreme Court of
jurisdiction to hear cases brought by the
Guantanamo detainees. Because these statements
were not included in the December 21 debate at the
time, Emily Bazelon of Slate magazine has argued
their brief was an attempt to mislead the court.[3]
On June 29, 2006, the Court issued a 5-3 decision
holding that it had jurisdiction, that the
administration did not have authority to set up
these particular military commissions without
congressional authorization, because they did not
comply with the Uniform Code of Military Justice
and the Geneva Convention (which the court found
to be incorporated into the Uniform Code of
Chief Justice
John G. Roberts
Associate Justices
Military Justice).[4]
32

Case opinions
Majority
Stevens, joined by Souter, Ginsburg,
Breyer; Kennedy (except Parts V, VI-D-iv)
Concurrence Breyer, joined by Kennedy, Souter,
Ginsburg
Concurrence Kennedy, joined by Souter, Ginsburg,
Breyer (only as to I, II)
Dissent
Scalia, joined by Thomas, Alito
Dissent
Thomas, joined by Scalia; Alito (all but I,
II-C-1, III-B-2)
Dissent
Alito, joined by Scalia, Thomas (only as to I
III)
Contents
1 Background
2 District and Appeals Court rulings
3 Supreme Court decision
3.1 Stevens' opinion for the Court
3.1.1 Plurality sections
3.1.2 Addressing the dissents
3.2 Breyer's concurrence
3.3 Kennedy's concurrence
3.4 Scalia's dissent
3.5 Thomas's dissent
3.6 Alito's dissent
4 Reaction to the decision
4.1 Implications for theories of
executive power
4.2 Charges dismissed/new charges
5 See also
6 References
7 Further reading
8 External links
8.1 Court documents
8.2 Pentagon documents
8.3 News reports, commentary
Roberts took no part in the consideration or decision of the case.
Laws applied
U.S. Const.; Geneva Conventions, Common Arts. 2 & 3;
UCMJ, Arts. 21 & 36; Detainee Treatment Act of 2005
(DTA) 1005; AUMF
Background
The plaintiff was Salim Ahmed Hamdan, a citizen of Yemen who worked as a bodyguard and chauffeur for
Osama bin Laden. Hamdan had formerly worked in Afghanistan on an agricultural project that Bin Laden
had developed. Hamdan was captured by militia forces during the invasion of Afghanistan in the fall of
2001 and turned over to the United States. In 2002, he was sent by the US to its new Guantanamo Bay
detention camp at its Naval Base in Cuba.
In July 2004, Hamdan was charged with conspiracy to commit terrorism,[5] and the Bush administration
made arrangements to try him before a military commission, established by the Department of Defense
under Military Commission Order No. 1 of March 21, 2002. He was assigned a defense counsel, LCDR
Charles D. Swift from the Navy JAG, who with a legal team filed a petition for Hamdan in US District
Court for a writ of habeas corpus, challenging the constitutionality of the military commission, and saying
that it lacked the protections required under the Geneva Conventions and United States Uniform Code of
Military Justice.
Following the United States Supreme Court ruling in Hamdi v. Rumsfeld (2004), which established that
detainees had the right of habeas corpus to challenge their detention, Hamdan was granted a review before
the Combatant Status Review Tribunal. It determined that he was eligible for detention by the United States
as an enemy combatant or person of interest.[2]
33
The defendants in this case included many United States government officials allegedly responsible for
Hamdan's detention; the short name of the case includes only the first-named defendant, then-Secretary of
Defense Donald Rumsfeld.
District and Appeals Court rulings

After reviewing Hamdan's habeas petition, Judge James Robertson of the United States District Court for
the District of Columbia 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 prisoner of war.[6][7][8]
On July 15, 2005, a United States Court of Appeals for the District of Columbia Circuit three-judge panel:
Arthur Raymond Randolph, John G. Roberts, Jr. and Stephen F. Williams, unanimously reversed the
decision of the District Court.[9] Judge Randolph, who wrote the decision, cited the following reasons for
the legality of the military commission:
1. Military commissions are legitimate forums to try enemy combatants because they have been
approved by Congress.
2. The Geneva Convention is a treaty between nations and as such it does not confer individual rights
and remedies.
3. 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 al-Qaeda was not between two countries, and the
Convention guarantees only a certain standard of judicial procedurea "competent tribunal"
without speaking to the jurisdiction in which the prisoner must be tried.
4. Under the terms of the Geneva Convention, al Qaeda and its members are not covered.
5. Congress authorized such activity by statute.
6. 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.[2]
Supreme Court decision

On 7 November 2005, the Supreme Court issued a writ of certiorari to hear the case.[10] The petition was
filed on behalf of Hamdan by Neal Katyal of Georgetown University Law Center and Lt. Commander
Charles Swift of the U.S. Navy, an alumnus of Seattle University School of Law. The Seattle law firm,
Perkins Coie, provided the additional legal counsel for Hamdan.
The case was argued before the court on 28 March 2006. Katyal argued on behalf of Hamdan, and Paul
Clement, the Solicitor General of the United States, argued on behalf of the government.[11] Chief Justice
Roberts recused himself because he had previously ruled on this case as part of the three judge panel on the
United States Court of Appeals for the District of Columbia Circuit. Critics called for Justice Antonin Scalia
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")[12] but he chose not to do so.
The Supreme Court announced its decision on 29 June 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 the Geneva
34
Conventions.[13][14]
Stevens' opinion for the Court

Associate Justice John Paul Stevens wrote the opinion for the Court
(http://www.law.cornell.edu/supct/html/05-184.ZO.html), which commanded a
majority only in part.
The Stevens opinion began with the issue of jurisdiction, denying the U.S.
government's motion to dismiss under Section 1005 of the Detainee Treatment
Act of 2005 (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 Schlesinger v.
Councilman, 420 U.S. 738 (1975), precludes Supreme Court review was
Justice Stevens, the
similarly rejected. Councilman applied to a member of the U.S. military who
author of the Court's
was being tried before a military "court-martial." In contrast, Hamdan is not a
opinion.
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 Ex parte Quirin, 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 Suspension
Clause.
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 by the "laws
of war," as codified by Congress in Article 21 of the Uniform Code of Military Justice (UCMJ), or
authorized by statute. As to the statutory authorization, there is nothing in the Authorization for Use of
Military Force (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.
As to the laws of war, to the majority these necessarily include the UCMJ and the Geneva Conventions,
each of which require more protections than the military commission provides. The UCMJ, Art. 36 (b),
which requires that rules applied in courts-martial and military commissions be "uniform insofar as
practicable." Stevens found several substantial deviations, including:
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;
Evidence judged to have any probative value may be admitted, including hearsay, unsworn live
testimony, and statements gathered through torture; and
Appeals are not heard by courts, but only within the Executive Branch (with an exception not here
relevant).
35
These deviations made the commissions violate the UCMJ.

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:
1. It erroneously relied on Johnson v. Eisentrager, 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;
2. 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
3. Those minimal protections include being tried by a "regularly constituted court," which the military
commission is not.
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.
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 Combatant Status Review Tribunal.
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, be tried by the military commission the President has convened pursuant to the November 13th
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.[14]
Plurality sections
Because Justice Anthony Kennedy did not join Stevens opinion as to several parts, largely on the grounds
of judicial parsimony (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.
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 triable by military
commission only when they are clearly defined as war crimes by statute or strong common law precedent
(cf. Quirin). Finally, he found that there was no support in statute or court precedent for law-of-war military
commissions trying charges of "conspiracy," either in the Geneva Conventions, in the earlier Hague
Conventions or at the Nuremberg Trials.
Addressing the dissents
As is common in opinions to which there are dissents, Stevens' opinion addressed the major arguments in
dissent. For example:
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))
36
The majority opinion says that the government's contention that the war started September 11, 2001
undercuts Justice Thomas' argument that it started in 1996.
The majority opinion notes that language in the Congressional Record that the Scalia dissent cites was
inserted into the Record after the legislation had been enacted, by Senators Lindsey Graham (R-SC)
and Jon Kyl (R-AZ), and includes falsified quotations attributed to other persons.[15]
Breyer's concurrence
Justice Breyer wrote a one-page concurring opinion (http://www.law.cornell.edu/supct/html/05184.ZC.html), joined by Justices Kennedy, Souter, and Ginsburg.[16] Breyer contended that the
commissions are not necessarily categorically prohibited, as long as Congress approves them:
...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
insistence upon that consultation does not weaken our Nations ability to deal with danger. To the
contrary, that insistence strengthens the Nations 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.[17]
Kennedy's concurrence
Justice Kennedy wrote an opinion concurring in part
(http://www.law.cornell.edu/supct/html/05-184.ZC1.html), joined as to parts I
and II by Justices Souter, Ginsburg, and Breyer.[18]
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.
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, et al.).[19] These differences demonstrate that the
commissions do not operate under the rules of military courts-martial, and 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.
Justice Kennedy
The third and final Part lists some of Kennedy's reservations.[20] 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 America never signed it and thus it is not binding. Kennedy 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.
Scalia's dissent
37
Justice Scalia wrote a dissenting opinion (http://www.law.cornell.edu/supct/html/05-184.ZD.html) that

focuses primarily on issues of jurisdiction, and was joined by Justices Thomas and Alito.[21]
Scalia calls the Court's conclusion to hear the case "patently erroneous." His first argument relies on the part
of the Detainee Treatment Act (DTA) (effective December 30, 2005) that states "[N]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 Bruner v.
United States 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 clear
language saying it does not. Scalia claimed that the majority had made this interpretation "for the flimsiest
of reasons".[22] 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 Signing Statement.
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.
In addition, Scalia states that the original military tribunal was not shown to be inadequate. Regarding the
application of the Suspension Clause of the Constitution, Scalia points to Johnson v. Eisentrager.
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 habeas corpus. He points in a footnote
to Hamdi v. Rumsfeld, under which he claims Hamdan "is already subject to indefinite detention" "after an
adverse determination by his CSRT."
Finally, Justice Scalia chastises the Court for taking equity jurisdiction of the case and draws an analogy
with Schlesinger v. Councilman, 420 U.S. 738 (1975). In that case, the Supreme Court declined passing
judgment on the decision of a military court-martial before it finished its work; Scalia argues that likewise,
the military commissions in Cuba have not yet ended their work regarding Hamdan and therefore should not
be subject to judicial oversight.[14]
Thomas's dissent
Justice Clarence Thomas read his dissent (http://www.law.cornell.edu/supct/html/05-184.ZD1.html) from
the bench when the decision was announced, the first time he did so since his dissent in Stenberg v. Carhart,
530 U.S. 914 (2000).
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 illegal combatant and therefore not protected by the Geneva convention;
that the Geneva convention doesn't prohibit the special court council proposed; and that the President
already had authority to set up the special court council proposed.[23]
38
Citing his dissent in Hamdi v. Rumsfeld, 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 Ex parte Quirin
and Youngstown Sheet & Tube Co. v. Sawyer, 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
Authorization for Use of Military Force.
Thomas disagreed strongly with the pluralitys determination that the legality of the charges against
Hamdan are doubtful because he was charged "not with an overt act for which he was caught
redhanded...but with an 'agreement' the inception of which long predated...the [relevant armed conflict]." He
lambasted the plurality for second-guessing the Executives judgment, arguing that the Courts
disagreement was based upon "little more than its unsupported assertions" and constituted "an
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 pluralitys assumption
that the date of the enactment of the AUMF constituted the start of war, suggesting that Osama bin Laden's
declaration of jihad 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 al Qaeda, 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.
Referring to the Courts recent decision in Rapanos v. United States, Thomas noted with some incredulity
that while the Justices that in the instant decision "disregard[ed] the commander-in-chiefs wartime
decisions," they had no trouble deferring to the judgment of the Corps of Engineers in upholding the
agencys "wildly implausible conclusion that a storm drain is a tributary of the waters of the United States."
"It goes without saying," Thomas added, "that there is much more at stake here than storm drains."
Thomas likewise disagreed with the pluralitys 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 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 Courts conclusion
that Article 36 of the UCMJ amounts to an attempt by Congress to curb the Executives power is "contrary
to the text and structure of the UCMJ" and also inconsistent with prior decisions of the Court. Addressing
Hamdans claims under the Geneva Convention, Thomas argued that these are foreclosed by the Courts
holding in Johnson v. Eisentrager, 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 Hamdans claim under Common Article 3 was not foreclosed by Eisentrager, it is
nevertheless meritless insofar as the President has accepted the determination of the Department of Justice
that Common Article 3 of Geneva does not extend to al Qaeda detainees. Thomas asserted that the Courts
duty in this instance to "defer to the Presidents 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.
Alito's dissent
39
In a seven page dissent (http://www.law.cornell.edu/supct/html/05-184.ZD2.html), Alito sided with Thomas

and Scalia's explanation of why they believe the courts had no jurisdiction for this case.[24] 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 Hamdan because the military commissions:
1. qualify as courts,
2. were appointed and established in accordance with domestic law, and
3. any procedural improprieties that might occur in particular cases can be reviewed in those cases.
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 10
U.S.C.836 (http://www.law.cornell.edu/uscode/10/836.html). 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.'"
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 "special tribunals," which
Article 66 does prohibit, such a prohibition is not applicable to Hamdan's tribunal because the military
commissions were "regular."[25] Further, because the Bush Administration might conduct the hundreds of
such tribunals according to the same procedures, Alito concluded that "it seems that petitioners tribunal,
like the hundreds of others respondents propose to conduct, is very much regular and not at all special."
Alito wrote that "the commissions were appointed, set up, and established pursuant to an order of the
President, just like the commission in Ex parte Quirin, 317 U. S. 1 (1942), and the Court acknowledges that
Quirin recognized that the statutory predecessor of 10 U.S.C.821
(http://www.law.cornell.edu/uscode/10/821.html) 'preserved' the Presidents 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 Quirin
was no different from the present case.
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 time';" and second,
the rule that "permits the admission of any evidence that would have 'probative value to a reasonable
person'". Alito asserts these rules cannot make the commissions illegitimate.
On the first rule Alito argued that not all changes during the course of a trial prejudice 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."
40
On the second rule, Alito argued that this rule does not violate the international standard incorporated into
Common Article 3, because "rules of evidence 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."
Reaction to the decision

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.
Shortly thereafter, the Military Commissions Act of 2006 may have raised again the issue of which court
would hear cases such as Hamdan's. The U.S. Department of Justice has filed notice with several federal
judges, and given notice to hundreds of detainees, that the habeas petitions of alien unlawful enemy
combatants (or those whose status is to be determined) are not within the jurisdiction of those courts.[26]
The passage and signing of the Act follows through on President Bush's expressed intention to get explicit
Congressional authorization to use military tribunals.[27] Press Secretary Tony Snow echoed the plan to
appeal to Congress.[28]
However, even among Senate Republicans, there were conflicting views. Senators Arlen Specter and
Lindsey Graham (the latter a former military prosecutor) indicated Congress would work quickly to
authorize tribunals, while influential Senator John Warner suggested a cautious and deliberative
response.[29] The potential for Congressional action also provided an avenue for politicking, as Republicans
threatened Democratic members of Congress with being labeled weak on terrorism if they did not authorize
tribunals.[30]
On July 7, 2006 the Secretary of Defense issued a memo "Application of Common Article 3 of the Geneva
Conventions to the Treatment of Detainees in the Department of Defense".[31] 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 entitled to humane treatment under the Geneva Conventions.[32] This
declaration appears not to cover CIA detainees and is ambiguous with respect to the interpretation of
Common Article 3 and the definition of "humane treatment".[33]
There were some indications that the other detainees being held at facilities throughout the world (e.g.
Bagram Air Base and black sites), 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.[34]
Implications for theories of executive power

The decision may have important implications for other disputes relating to the extent of executive power
and the unitary executive theory. In particular, it may undermine the Bush administration's legal arguments
for domestic wiretapping by the National Security Agency without warrants as required by the Foreign
Intelligence Surveillance Act.[35]
41
Charges dismissed/new charges

On June 5, 2007, Hamdan and Canadian youth Omar Khadr, had all charges against them
dismissed.[36][37][38] 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 "unlawful enemy combatants". Hamdan and Khadr's Combatant Status Review Tribunals, like
those of all the other Guantanamo captives, had confirmed them as "enemy combatants".
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 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.
See also
List of United States Supreme Court cases
Rasul v. Bush
Boumediene v. Bush
References
1. Hamdan v. Rumsfeld, Supreme Court Syllabus (http://www.supremecourt.gov/opinions/05pdf/05-184.pdf), pg.
4., point 4.
2. Hamdan v. Rumsfeld (http://www.law.duke.edu/publiclaw/supremecourtonline/certGrants/2005/hamvrum.html),
Duke Law's Supreme Court Online, 2005.
3. Invisible Men: Did Lindsey Graham and Jon Kyl mislead the Supreme Court?
(http://www.slate.com/id/2138750), by Emily Bazelon Slate Magazine
4. "In Loss for Bush, Supreme Court Blocks War-Crimes Trials at Guantanamo
(http://www.nytimes.com/2006/06/29/washington/29cnd-scotus.html)", Associated Press, as reported by The
New York Times, June 29, 2006
5. Charge Sheets for Salim Ahmed Hamdan (http://www.defenselink.mil/news/Jul2004/d20040714hcc.pdf), United
States Department of Defense
6. Bin Laden's driver outmanoeuvres Guantanamo trials (http://www.smh.com.au/news/Global-Terrorism/Osamasdriver-outmanoeuvres-terror-trials/2004/11/09/1099781361307.html), Sydney Morning Herald, November 9,
2004
7. Court bars efforts to try terrorist before military commissions (http://www.wlf.org/upload/110904RS.pdf),
Washington Legal Foundation, November 9, 2004
8. High Court Sidesteps Guantanamo Bay Case (http://www.latimes.com/news/nationworld/politics/wire/sns-apscotus-terror-suspects,1,722524.story?coll=sns-ap-politics-headlines), Los Angeles Times, January 19, 2005
9. Hamdan v. Rumsfeld (http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/04-5393a.pdf), United
States Court of Appeals for the District of Columbia Circuit, July 18, 2005.
10. "Supreme Court to hear challenge to Gitmo tribunals" (http://jurist.law.pitt.edu/paperchase/2005/11/breakingnews-supreme-court-to-hear.php), Jurist, University of Pittsburgh School of Law, November 7, 2005.
11. Hamdan, Salim v. Rumsfeld, Donald (Secy. of Defense)
(http://docket.medill.northwestern.edu/archives/003208.php) Medill, Northwestern University, November 11,
2005.
12. USA TODAY (http://www.usatoday.com/news/washington/2006-03-26-scalia-guantanamo_x.htm) (AP) March
26, 2006
42
13. "US court rejects Guantanamo trial" (http://news.bbc.co.uk/1/hi/world/americas/5129904.stm). BBC News. June
29, 2006. Retrieved January 5, 2010.
14. "Hamdan v. Rumsfeld" (http://www.supremecourt.gov/opinions/05pdf/05-184.pdf) (PDF). Supreme Court of the
United States.
15. "Not Live From Capitol Hill (http://www.slate.com/id/2144780/)", slate.com, by Emily Bazelon, June 29, 2006
16. 126 S. Ct. at 2799.
17. Mahler, Jonathan (2008). The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power. New
York: Farrar, Straus and Giroux, p. 300. ISBN 978-0-374-22320-5
18. Id. at 2799-2809.
19. Id. at 2804.
20. Id. at 2808.
21. Id. at 2810-2823.
23. 126 S. Ct. at 2823-49.
24. Id. at 2849-55.
25. Citing Webster's Third New International Dictionary, Alito relied on the definition of "special," "relating to a
single thing;" and the definition of "regular," "uniform in course, practice, or occurrence."
26. US: Courts No Longer Open to Detainees
(http://www.boston.com/news/nation/washington/articles/2006/10/20/terror_law_renders_detainee_cases_moot?
mode=PF), October 20, 2006, Matt Apuzzo, Associated Press Writer , retrieved October 20, 2006.
27. President Bush and Japanese Prime Minister Koizumi Participate in a Joint Press Availability
(http://georgewbush-whitehouse.archives.gov/news/releases/2006/06/print/20060629-3.html), June 29, 2006,
White House Archives
28. Press Gaggle by Tony Snow (http://georgewbushwhitehouse.archives.gov/news/releases/2006/06/print/20060630-5.html), June 30, 2006, White House Archives
29. Zernike, Kate (July 1, 2006). "Warner Is Uncertain on Legislation for Tribunals"
(http://www.nytimes.com/2006/07/01/us/01gitmo.html). New York Times.
30. Abramowitz, Michael; Weisman, Jonathan (July 1, 2006). "GOP Seeks Advantage In Ruling On Trials"
(http://www.washingtonpost.com/wp-dyn/content/article/2006/06/30/AR2006063001737.html). Washington
Post.
31. "Geneva-22 (http://www.slate.com/id/2145592) on slate.com, from Timothy Noah, July 11, 2006
32. "U.S. will give detainees Geneva rights (http://www.truthout.org/cgi-bin/artman/exec/view.cgi/62/21075)", by
Anne Plummer Flaherty, AP
33. Newsflash: Pentagon Agrees to Abide by Supreme Court Ruling -- Or Does It?
(http://balkin.blogspot.com/2006/07/newsflash-pentagon-agrees-to-abide-by.html) Marty Lederman, July 11,
2006
34. Lewis, Neil A. (July 1, 2006). "Detainees May Test Reach of Guantnamo Ruling"
(http://www.nytimes.com/2006/07/01/us/01geneva.html). New York Times.
35. Supreme Courts Ruling in Hamdan Means Warrantless Eavesdropping is Clearly Illegal
(http://www.crooksandliars.com/2006/07/09/supreme-courts-ruling-in-hamdan-means-warrantlesseavesdropping-is-clearly-illegal/), Glenn Greenwald, July 9, 2006
36. Carol Rosenberg (June 4, 2007). "Military panels hear captives' side of story"
(http://www.miamiherald.com/news/americas/cuba/story/36587.html). Miami Herald. Retrieved 2007-06-04.
37. Alberts, Sheldon (2007-06-04). "Khadr remains in detention after all charges dropped"
(http://www.canada.com/nationalpost/story.html?id=ead5bb60-723b-4f87-a2fe-2dbe0845d8f2). National Post
(Canwest MediaWorks Publications Inc.). Retrieved 2007-06-04.
38. "Stuck in Guantanamo: President Bush tried to create a new legal system for terrorism suspects. He created a
quagmire instead." (http://www.washingtonpost.com/wpdyn/content/article/2007/06/06/AR2007060602302.html). Washington Post. June 7, 2007. Retrieved 2007-06-07.
Further reading
43
Morrow & Co. ISBN0-688-05142-1.
National Security Law for Policymakers and Law Students
(http://majorbenjamintalmadge.blogspot.com/2009/03/national-security-law-for-policymakers.html/)
Human Rights First: In Pursuit of Justice; Prosecuting Terrorism Cases in the Federal Courts (2009)
(https://web.archive.org/web/20091111085043/http://www.humanrightsfirst.org/pdf/090723-LS-inpursuit-justice-09-update.pdf) at the Wayback Machine (archived November 11, 2009)
Mahler, Jonathan (2008), The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential
Power, New York: Farrar, Straus and Giroux, p.285, ISBN978-0-374-22320-5.
Happold, Matthew (2007), "Hamdan v Rumsfeld and the Law of War", Human Rights Law Review 7
(2): 418431, doi:10.1093/hrlr/ngm010 (https://dx.doi.org/10.1093%2Fhrlr%2Fngm010).
Testimony (http://www.fas.org/irp/congress/2006_hr/071106silliman.html) of Scott Silliman on
Hamdan v. Rumsfeld: Establishing a Constitutional Process", U.S. Senate Committee on the Judiciary,
July 11, 2006
External links
Court documents
Full text of the decision (http://www.supremecourt.gov/opinions/05pdf/05-184.pdf)PDF(1.31MiB)
Full text (http://www.law.cornell.edu/supct/html/05-184.ZS.html) (HTML with links to precedents,
statutes, and U.S. Constitution)
Full text (http://www.vlex.us/caselaw/US-Supreme-Court/Recent-Opinions/2100-320635,01.html) in vLex.us, HTML with links.
U.S. Supreme Court Official Reporter's Transcript of Oral Argument
(http://www.supremecourt.gov/oral_arguments/argument_transcripts/05-184.pdf)PDF(301KiB)
Full text transcript of the oral argument
Groups File Amicus Briefs in Case Involving Osama Bin Laden's Driver
(http://www.phrusa.org/research/torture/amicusbrief-hamdan.html), Physicians for Human Rights
www.hamdanvrumsfeld.com (http://www.hamdanvrumsfeld.com) A website devoted to the case;
contains briefs and other pertinent documents
Petition for a writ of certiorari: Brief for the respondents in opposition
(http://www.usdoj.gov/osg/briefs/2004/0responses/2004-0702.resp.html), US Department of Justice,
December 2004
Text of the July 15th ruling (http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/045393a.pdf)PDF(67.7KiB), U.S. Court of Appeals for the District of Columbia Circuit, July 15, 2005.
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 (http://www.oyez.org/cases/20002009/2005/2005_05_184/briefs/Amicus%20Brief%20of%20Quirin%20Historians_001.pdf).
Pentagon documents
Military Commission Order No. 1 (http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf)
News reports, commentary

High Court Rejects Detainee Tribunals (http://www.washingtonpost.com/wp44
dyn/content/article/2006/06/29/AR2006062900928_pf.html), Washington Post, June 29, 2006

Hamdan v. Rumsfeld: The Supreme Court Affirms International Law
(http://jurist.law.pitt.edu/forumy/2006/06/hamdan-v-rumsfeld-supreme-court.php), JURIST, June 30,
2006
Hamdan, Common Article 3 and the True Spirit of the Law of War
(http://jurist.law.pitt.edu/forumy/2006/07/hamdan-common-article-3-and-true.php), JURIST, July 3,
2006
U.S. Charges Yemeni Described as Bin Laden Bodyguard (http://www.washingtonpost.com/wpdyn/articles/A50013-2004Jul14.html), Washington Post, July 14, 2004
Fourth Guantanamo Detainee Is Charged (http://www.washingtonpost.com/wp-dyn/articles/A498092004Jul14.html), Washington Post, July 14, 2004
Bin Laden driver charged in first Guantanamo hearing
(http://www.usatoday.com/news/washington/2004-08-24-gitmo-driver_x.htm), USA Today, August
25, 2004
Court permits terrorists to be tried by military commissions
(http://www.wlf.org/upload/071505LURS.pdf), Washington Legal Foundation, July 15, 2005
Protecting America's Freedom: National Security and Defense
(http://www.wlf.org/Litigating/casedetail.asp?detail=303), Washington Legal Foundation, July 15,
2005
"The Nation's Second-Highest Court" Upholds Military Commissions
(http://writ.corporate.findlaw.com/dorf/20050720.html), FindLaw, July 20, 2005
Understanding Hamdan v. Rumsfeld
(http://www.willamette.edu/~blong/LegalEssaysII/GuantanamoI.html)
Why Hamdan is Right about Conspiracy Liability (http://jurist.law.pitt.edu/forumy/2006/03/whyhamdan-is-right-about-conspiracy.php), JURIST
Why the Court Said No (http://www.nybooks.com/articles/19212), David D. Cole, New York Review
of Books, August 10, 2006
"George Clooney To Direct Matt Damon In Aaron Sorkin's War On Terror"
url=http%3A%2F%2Fmoviesblog.mtv.com%2F2009%2F09%2F22%2Fgeorge-clooney-to-directmatt-damon-in-aaron-sorkins-war-on-terror%2F%23more-21632&date=2009-09-23). MTV. 2009-0923. Archived from the original (http://moviesblog.mtv.com/2009/09/22/george-clooney-to-directmatt-damon-in-aaron-sorkins-war-on-terror/#more-21632) on 2009-09-23.
Retrieved from "http://en.wikipedia.org/w/index.php?title=Hamdan_v._Rumsfeld&oldid=651326843"
Categories: United States Supreme Court cases of the Roberts Court 2006 in United States case law
Extrajudicial prisoners of the United States United States Supreme Court cases
George W. Bush administration controversies United States military case law Human rights case law
45
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 (2006), is a

States held that military commissions set up by the
Bush administration to try detainees at
Guantanamo Bay lack "the power to proceed
because its structures and procedures violate both
the Uniform Code of Military Justice and the four
Hamdan v. Rumsfeld
Geneva Conventions signed in 1949."[1]

Specifically, the ruling says that Common Article 3
of the Geneva Conventions was violated.

Full case
Salim Ahmed Hamdan, Petitioner v. Donald
name
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 General Jay Hood,
Commander Joint Task Force,
Guantanamo, Camp Echo, Guantanamo
Bay, Cuba; George W. Bush, President of
the United States
Docket nos. 05-184
Citations
548 U.S. 557 (more)
126 S. Ct. 2749; 165 L. Ed. 2d 723; 2006
U.S. LEXIS 5185; 19 Fla. L. Weekly Fed. S
452
Prior history Petition for habeas corpus granted, 344 F.
Supp. 2d 152 (D.D.C. 2004); reversed, 415
F.3d 33 (D.C. Cir., 2005); cert. granted, 126
S. Ct. 622 (2006)
Holding
Military commission to try Plaintiff is illegal and lacking
the protections required under the Geneva Conventions and
United States Uniform Code of Military Justice.
Court membership
The case considers whether the United States

Congress 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
that had been set up violated federal law (including
the Uniform Code of Military Justice and treaty
obligations), and whether courts can enforce the
articles of the 1949 Geneva Convention.[2]
An unusual aspect of the case was an amicus brief
filed by Senators Jon Kyl and Lindsey Graham,
which presented an extensive colloquy added to
the Congressional record as evidence that
"Congress was aware" that the Detainee Treatment
Act of 2005 would strip the Supreme Court of
jurisdiction to hear cases brought by the
Guantanamo detainees. Because these statements
were not included in the December 21 debate at the
time, Emily Bazelon of Slate magazine has argued
their brief was an attempt to mislead the court.[3]
On June 29, 2006, the Court issued a 5-3 decision
holding that it had jurisdiction, that the
administration did not have authority to set up
these particular military commissions without
congressional authorization, because they did not
comply with the Uniform Code of Military Justice
and the Geneva Convention (which the court found
to be incorporated into the Uniform Code of
Chief Justice
John G. Roberts
Associate Justices
Military Justice).[4]
46

Case opinions
Majority
Breyer; Kennedy (except Parts V, VI-D-iv)
Concurrence Breyer, joined by Kennedy, Souter,
Ginsburg
Concurrence Kennedy, joined by Souter, Ginsburg,
Breyer (only as to I, II)
Dissent
Scalia, joined by Thomas, Alito
Dissent
Thomas, joined by Scalia; Alito (all but I,
II-C-1, III-B-2)
Dissent
Alito, joined by Scalia, Thomas (only as to I
III)
Contents
1 Background
2 District and Appeals Court rulings
3 Supreme Court decision
3.1 Stevens' opinion for the Court
3.1.1 Plurality sections
3.1.2 Addressing the dissents
3.2 Breyer's concurrence
3.3 Kennedy's concurrence
3.4 Scalia's dissent
3.5 Thomas's dissent
3.6 Alito's dissent
4 Reaction to the decision
4.1 Implications for theories of
executive power
4.2 Charges dismissed/new charges
5 See also
6 References
7 Further reading
8 External links
8.1 Court documents
8.2 Pentagon documents
8.3 News reports, commentary
Roberts took no part in the consideration or decision of the case.
Laws applied
U.S. Const.; Geneva Conventions, Common Arts. 2 & 3;
UCMJ, Arts. 21 & 36; Detainee Treatment Act of 2005
(DTA) 1005; AUMF
Background
The plaintiff was Salim Ahmed Hamdan, a citizen of Yemen who worked as a bodyguard and chauffeur for
Osama bin Laden. Hamdan had formerly worked in Afghanistan on an agricultural project that Bin Laden
had developed. Hamdan was captured by militia forces during the invasion of Afghanistan in the fall of
2001 and turned over to the United States. In 2002, he was sent by the US to its new Guantanamo Bay
detention camp at its Naval Base in Cuba.
In July 2004, Hamdan was charged with conspiracy to commit terrorism,[5] and the Bush administration
made arrangements to try him before a military commission, established by the Department of Defense
under Military Commission Order No. 1 of March 21, 2002. He was assigned a defense counsel, LCDR
Charles D. Swift from the Navy JAG, who with a legal team filed a petition for Hamdan in US District
Court for a writ of habeas corpus, challenging the constitutionality of the military commission, and saying
that it lacked the protections required under the Geneva Conventions and United States Uniform Code of
Military Justice.
Following the United States Supreme Court ruling in Hamdi v. Rumsfeld (2004), which established that
detainees had the right of habeas corpus to challenge their detention, Hamdan was granted a review before
the Combatant Status Review Tribunal. It determined that he was eligible for detention by the United States
as an enemy combatant or person of interest.[2]
47
The defendants in this case included many United States government officials allegedly responsible for
Hamdan's detention; the short name of the case includes only the first-named defendant, then-Secretary of
Defense Donald Rumsfeld.
District and Appeals Court rulings

After reviewing Hamdan's habeas petition, Judge James Robertson of the United States District Court for
the District of Columbia 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 prisoner of war.[6][7][8]
On July 15, 2005, a United States Court of Appeals for the District of Columbia Circuit three-judge panel:
Arthur Raymond Randolph, John G. Roberts, Jr. and Stephen F. Williams, unanimously reversed the
decision of the District Court.[9] Judge Randolph, who wrote the decision, cited the following reasons for
the legality of the military commission:
1. Military commissions are legitimate forums to try enemy combatants because they have been
approved by Congress.
2. The Geneva Convention is a treaty between nations and as such it does not confer individual rights
and remedies.
3. 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 al-Qaeda was not between two countries, and the
Convention guarantees only a certain standard of judicial procedurea "competent tribunal"
without speaking to the jurisdiction in which the prisoner must be tried.
4. Under the terms of the Geneva Convention, al Qaeda and its members are not covered.
5. Congress authorized such activity by statute.
6. 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.[2]
Supreme Court decision

On 7 November 2005, the Supreme Court issued a writ of certiorari to hear the case.[10] The petition was
filed on behalf of Hamdan by Neal Katyal of Georgetown University Law Center and Lt. Commander
Charles Swift of the U.S. Navy, an alumnus of Seattle University School of Law. The Seattle law firm,
Perkins Coie, provided the additional legal counsel for Hamdan.
The case was argued before the court on 28 March 2006. Katyal argued on behalf of Hamdan, and Paul
Clement, the Solicitor General of the United States, argued on behalf of the government.[11] Chief Justice
Roberts recused himself because he had previously ruled on this case as part of the three judge panel on the
United States Court of Appeals for the District of Columbia Circuit. Critics called for Justice Antonin Scalia
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")[12] but he chose not to do so.
The Supreme Court announced its decision on 29 June 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 the Geneva
48
Conventions.[13][14]
Stevens' opinion for the Court

Associate Justice John Paul Stevens wrote the opinion for the Court
(http://www.law.cornell.edu/supct/html/05-184.ZO.html), which commanded a
majority only in part.
The Stevens opinion began with the issue of jurisdiction, denying the U.S.
government's motion to dismiss under Section 1005 of the Detainee Treatment
Act of 2005 (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 Schlesinger v.
Councilman, 420 U.S. 738 (1975), precludes Supreme Court review was
Justice Stevens, the
similarly rejected. Councilman applied to a member of the U.S. military who
author of the Court's
was being tried before a military "court-martial." In contrast, Hamdan is not a
opinion.
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 Ex parte Quirin, 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 Suspension
Clause.
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 by the "laws
of war," as codified by Congress in Article 21 of the Uniform Code of Military Justice (UCMJ), or
authorized by statute. As to the statutory authorization, there is nothing in the Authorization for Use of
Military Force (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.
As to the laws of war, to the majority these necessarily include the UCMJ and the Geneva Conventions,
each of which require more protections than the military commission provides. The UCMJ, Art. 36 (b),
which requires that rules applied in courts-martial and military commissions be "uniform insofar as
practicable." Stevens found several substantial deviations, including:
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;
Evidence judged to have any probative value may be admitted, including hearsay, unsworn live
testimony, and statements gathered through torture; and
Appeals are not heard by courts, but only within the Executive Branch (with an exception not here
relevant).
49
These deviations made the commissions violate the UCMJ.

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:
1. It erroneously relied on Johnson v. Eisentrager, 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;
2. 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
3. Those minimal protections include being tried by a "regularly constituted court," which the military
commission is not.
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.
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 Combatant Status Review Tribunal.
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, be tried by the military commission the President has convened pursuant to the November 13th
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.[14]
Plurality sections
Because Justice Anthony Kennedy did not join Stevens opinion as to several parts, largely on the grounds
of judicial parsimony (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.
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 triable by military
commission only when they are clearly defined as war crimes by statute or strong common law precedent
(cf. Quirin). Finally, he found that there was no support in statute or court precedent for law-of-war military
commissions trying charges of "conspiracy," either in the Geneva Conventions, in the earlier Hague
Conventions or at the Nuremberg Trials.
Addressing the dissents
As is common in opinions to which there are dissents, Stevens' opinion addressed the major arguments in
dissent. For example:
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))
50
The majority opinion says that the government's contention that the war started September 11, 2001
undercuts Justice Thomas' argument that it started in 1996.
The majority opinion notes that language in the Congressional Record that the Scalia dissent cites was
inserted into the Record after the legislation had been enacted, by Senators Lindsey Graham (R-SC)
and Jon Kyl (R-AZ), and includes falsified quotations attributed to other persons.[15]
Breyer's concurrence
Justice Breyer wrote a one-page concurring opinion (http://www.law.cornell.edu/supct/html/05184.ZC.html), joined by Justices Kennedy, Souter, and Ginsburg.[16] Breyer contended that the
commissions are not necessarily categorically prohibited, as long as Congress approves them:
...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
insistence upon that consultation does not weaken our Nations ability to deal with danger. To the
contrary, that insistence strengthens the Nations 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.[17]
Kennedy's concurrence
Justice Kennedy wrote an opinion concurring in part
(http://www.law.cornell.edu/supct/html/05-184.ZC1.html), joined as to parts I
and II by Justices Souter, Ginsburg, and Breyer.[18]
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.
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, et al.).[19] These differences demonstrate that the
commissions do not operate under the rules of military courts-martial, and 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.
Justice Kennedy
The third and final Part lists some of Kennedy's reservations.[20] 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 America never signed it and thus it is not binding. Kennedy 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.
Scalia's dissent
51
Justice Scalia wrote a dissenting opinion (http://www.law.cornell.edu/supct/html/05-184.ZD.html) that

focuses primarily on issues of jurisdiction, and was joined by Justices Thomas and Alito.[21]
Scalia calls the Court's conclusion to hear the case "patently erroneous." His first argument relies on the part
of the Detainee Treatment Act (DTA) (effective December 30, 2005) that states "[N]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 Bruner v.
United States 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 clear
language saying it does not. Scalia claimed that the majority had made this interpretation "for the flimsiest
of reasons".[22] 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 Signing Statement.
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.
In addition, Scalia states that the original military tribunal was not shown to be inadequate. Regarding the
application of the Suspension Clause of the Constitution, Scalia points to Johnson v. Eisentrager.
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 habeas corpus. He points in a footnote
to Hamdi v. Rumsfeld, under which he claims Hamdan "is already subject to indefinite detention" "after an
adverse determination by his CSRT."
Finally, Justice Scalia chastises the Court for taking equity jurisdiction of the case and draws an analogy
with Schlesinger v. Councilman, 420 U.S. 738 (1975). In that case, the Supreme Court declined passing
judgment on the decision of a military court-martial before it finished its work; Scalia argues that likewise,
the military commissions in Cuba have not yet ended their work regarding Hamdan and therefore should not
be subject to judicial oversight.[14]
Thomas's dissent
Justice Clarence Thomas read his dissent (http://www.law.cornell.edu/supct/html/05-184.ZD1.html) from
the bench when the decision was announced, the first time he did so since his dissent in Stenberg v. Carhart,
530 U.S. 914 (2000).
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 illegal combatant and therefore not protected by the Geneva convention;
that the Geneva convention doesn't prohibit the special court council proposed; and that the President
already had authority to set up the special court council proposed.[23]
52
Citing his dissent in Hamdi v. Rumsfeld, 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 Ex parte Quirin
and Youngstown Sheet & Tube Co. v. Sawyer, 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
Authorization for Use of Military Force.
Thomas disagreed strongly with the pluralitys determination that the legality of the charges against
Hamdan are doubtful because he was charged "not with an overt act for which he was caught
redhanded...but with an 'agreement' the inception of which long predated...the [relevant armed conflict]." He
lambasted the plurality for second-guessing the Executives judgment, arguing that the Courts
disagreement was based upon "little more than its unsupported assertions" and constituted "an
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 pluralitys assumption
that the date of the enactment of the AUMF constituted the start of war, suggesting that Osama bin Laden's
declaration of jihad 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 al Qaeda, 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.
Referring to the Courts recent decision in Rapanos v. United States, Thomas noted with some incredulity
that while the Justices that in the instant decision "disregard[ed] the commander-in-chiefs wartime
decisions," they had no trouble deferring to the judgment of the Corps of Engineers in upholding the
agencys "wildly implausible conclusion that a storm drain is a tributary of the waters of the United States."
"It goes without saying," Thomas added, "that there is much more at stake here than storm drains."
Thomas likewise disagreed with the pluralitys 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 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 Courts conclusion
that Article 36 of the UCMJ amounts to an attempt by Congress to curb the Executives power is "contrary
to the text and structure of the UCMJ" and also inconsistent with prior decisions of the Court. Addressing
Hamdans claims under the Geneva Convention, Thomas argued that these are foreclosed by the Courts
holding in Johnson v. Eisentrager, 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 Hamdans claim under Common Article 3 was not foreclosed by Eisentrager, it is
nevertheless meritless insofar as the President has accepted the determination of the Department of Justice
that Common Article 3 of Geneva does not extend to al Qaeda detainees. Thomas asserted that the Courts
duty in this instance to "defer to the Presidents 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.
Alito's dissent
53
In a seven page dissent (http://www.law.cornell.edu/supct/html/05-184.ZD2.html), Alito sided with Thomas

and Scalia's explanation of why they believe the courts had no jurisdiction for this case.[24] 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 Hamdan because the military commissions:
1. qualify as courts,
2. were appointed and established in accordance with domestic law, and
3. any procedural improprieties that might occur in particular cases can be reviewed in those cases.
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 10
U.S.C.836 (http://www.law.cornell.edu/uscode/10/836.html). 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.'"
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 "special tribunals," which
Article 66 does prohibit, such a prohibition is not applicable to Hamdan's tribunal because the military
commissions were "regular."[25] Further, because the Bush Administration might conduct the hundreds of
such tribunals according to the same procedures, Alito concluded that "it seems that petitioners tribunal,
like the hundreds of others respondents propose to conduct, is very much regular and not at all special."
Alito wrote that "the commissions were appointed, set up, and established pursuant to an order of the
President, just like the commission in Ex parte Quirin, 317 U. S. 1 (1942), and the Court acknowledges that
Quirin recognized that the statutory predecessor of 10 U.S.C.821
(http://www.law.cornell.edu/uscode/10/821.html) 'preserved' the Presidents 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 Quirin
was no different from the present case.
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 time';" and second,
the rule that "permits the admission of any evidence that would have 'probative value to a reasonable
person'". Alito asserts these rules cannot make the commissions illegitimate.
On the first rule Alito argued that not all changes during the course of a trial prejudice 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."
54
On the second rule, Alito argued that this rule does not violate the international standard incorporated into
Common Article 3, because "rules of evidence 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."
Reaction to the decision

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.
Shortly thereafter, the Military Commissions Act of 2006 may have raised again the issue of which court
would hear cases such as Hamdan's. The U.S. Department of Justice has filed notice with several federal
judges, and given notice to hundreds of detainees, that the habeas petitions of alien unlawful enemy
combatants (or those whose status is to be determined) are not within the jurisdiction of those courts.[26]
The passage and signing of the Act follows through on President Bush's expressed intention to get explicit
Congressional authorization to use military tribunals.[27] Press Secretary Tony Snow echoed the plan to
appeal to Congress.[28]
However, even among Senate Republicans, there were conflicting views. Senators Arlen Specter and
Lindsey Graham (the latter a former military prosecutor) indicated Congress would work quickly to
authorize tribunals, while influential Senator John Warner suggested a cautious and deliberative
response.[29] The potential for Congressional action also provided an avenue for politicking, as Republicans
threatened Democratic members of Congress with being labeled weak on terrorism if they did not authorize
tribunals.[30]
On July 7, 2006 the Secretary of Defense issued a memo "Application of Common Article 3 of the Geneva
Conventions to the Treatment of Detainees in the Department of Defense".[31] 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 entitled to humane treatment under the Geneva Conventions.[32] This
declaration appears not to cover CIA detainees and is ambiguous with respect to the interpretation of
Common Article 3 and the definition of "humane treatment".[33]
There were some indications that the other detainees being held at facilities throughout the world (e.g.
Bagram Air Base and black sites), 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.[34]
Implications for theories of executive power

The decision may have important implications for other disputes relating to the extent of executive power
and the unitary executive theory. In particular, it may undermine the Bush administration's legal arguments
for domestic wiretapping by the National Security Agency without warrants as required by the Foreign
Intelligence Surveillance Act.[35]
55
Charges dismissed/new charges

On June 5, 2007, Hamdan and Canadian youth Omar Khadr, had all charges against them
dismissed.[36][37][38] 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 "unlawful enemy combatants". Hamdan and Khadr's Combatant Status Review Tribunals, like
those of all the other Guantanamo captives, had confirmed them as "enemy combatants".
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 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.
See also
Rasul v. Bush
Boumediene v. Bush
References
1. Hamdan v. Rumsfeld, Supreme Court Syllabus (http://www.supremecourt.gov/opinions/05pdf/05-184.pdf), pg.
4., point 4.
2. Hamdan v. Rumsfeld (http://www.law.duke.edu/publiclaw/supremecourtonline/certGrants/2005/hamvrum.html),
Duke Law's Supreme Court Online, 2005.
3. Invisible Men: Did Lindsey Graham and Jon Kyl mislead the Supreme Court?
(http://www.slate.com/id/2138750), by Emily Bazelon Slate Magazine
4. "In Loss for Bush, Supreme Court Blocks War-Crimes Trials at Guantanamo
(http://www.nytimes.com/2006/06/29/washington/29cnd-scotus.html)", Associated Press, as reported by The
New York Times, June 29, 2006
5. Charge Sheets for Salim Ahmed Hamdan (http://www.defenselink.mil/news/Jul2004/d20040714hcc.pdf), United
States Department of Defense
6. Bin Laden's driver outmanoeuvres Guantanamo trials (http://www.smh.com.au/news/Global-Terrorism/Osamasdriver-outmanoeuvres-terror-trials/2004/11/09/1099781361307.html), Sydney Morning Herald, November 9,
2004
7. Court bars efforts to try terrorist before military commissions (http://www.wlf.org/upload/110904RS.pdf),
Washington Legal Foundation, November 9, 2004
8. High Court Sidesteps Guantanamo Bay Case (http://www.latimes.com/news/nationworld/politics/wire/sns-apscotus-terror-suspects,1,722524.story?coll=sns-ap-politics-headlines), Los Angeles Times, January 19, 2005
9. Hamdan v. Rumsfeld (http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/04-5393a.pdf), United
States Court of Appeals for the District of Columbia Circuit, July 18, 2005.
10. "Supreme Court to hear challenge to Gitmo tribunals" (http://jurist.law.pitt.edu/paperchase/2005/11/breakingnews-supreme-court-to-hear.php), Jurist, University of Pittsburgh School of Law, November 7, 2005.
11. Hamdan, Salim v. Rumsfeld, Donald (Secy. of Defense)
(http://docket.medill.northwestern.edu/archives/003208.php) Medill, Northwestern University, November 11,
2005.
12. USA TODAY (http://www.usatoday.com/news/washington/2006-03-26-scalia-guantanamo_x.htm) (AP) March
26, 2006
56
13. "US court rejects Guantanamo trial" (http://news.bbc.co.uk/1/hi/world/americas/5129904.stm). BBC News. June
29, 2006. Retrieved January 5, 2010.
14. "Hamdan v. Rumsfeld" (http://www.supremecourt.gov/opinions/05pdf/05-184.pdf) (PDF). Supreme Court of the
United States.
15. "Not Live From Capitol Hill (http://www.slate.com/id/2144780/)", slate.com, by Emily Bazelon, June 29, 2006
16. 126 S. Ct. at 2799.
18. Id. at 2799-2809.
19. Id. at 2804.
20. Id. at 2808.
21. Id. at 2810-2823.
23. 126 S. Ct. at 2823-49.
24. Id. at 2849-55.
25. Citing Webster's Third New International Dictionary, Alito relied on the definition of "special," "relating to a
single thing;" and the definition of "regular," "uniform in course, practice, or occurrence."
26. US: Courts No Longer Open to Detainees
(http://www.boston.com/news/nation/washington/articles/2006/10/20/terror_law_renders_detainee_cases_moot?
mode=PF), October 20, 2006, Matt Apuzzo, Associated Press Writer , retrieved October 20, 2006.
27. President Bush and Japanese Prime Minister Koizumi Participate in a Joint Press Availability
(http://georgewbush-whitehouse.archives.gov/news/releases/2006/06/print/20060629-3.html), June 29, 2006,
White House Archives
28. Press Gaggle by Tony Snow (http://georgewbushwhitehouse.archives.gov/news/releases/2006/06/print/20060630-5.html), June 30, 2006, White House Archives
29. Zernike, Kate (July 1, 2006). "Warner Is Uncertain on Legislation for Tribunals"
(http://www.nytimes.com/2006/07/01/us/01gitmo.html). New York Times.
30. Abramowitz, Michael; Weisman, Jonathan (July 1, 2006). "GOP Seeks Advantage In Ruling On Trials"
Post.
31. "Geneva-22 (http://www.slate.com/id/2145592) on slate.com, from Timothy Noah, July 11, 2006
32. "U.S. will give detainees Geneva rights (http://www.truthout.org/cgi-bin/artman/exec/view.cgi/62/21075)", by
Anne Plummer Flaherty, AP
33. Newsflash: Pentagon Agrees to Abide by Supreme Court Ruling -- Or Does It?
(http://balkin.blogspot.com/2006/07/newsflash-pentagon-agrees-to-abide-by.html) Marty Lederman, July 11,
2006
34. Lewis, Neil A. (July 1, 2006). "Detainees May Test Reach of Guantnamo Ruling"
(http://www.nytimes.com/2006/07/01/us/01geneva.html). New York Times.
35. Supreme Courts Ruling in Hamdan Means Warrantless Eavesdropping is Clearly Illegal
(http://www.crooksandliars.com/2006/07/09/supreme-courts-ruling-in-hamdan-means-warrantlesseavesdropping-is-clearly-illegal/), Glenn Greenwald, July 9, 2006
36. Carol Rosenberg (June 4, 2007). "Military panels hear captives' side of story"
(http://www.miamiherald.com/news/americas/cuba/story/36587.html). Miami Herald. Retrieved 2007-06-04.
37. Alberts, Sheldon (2007-06-04). "Khadr remains in detention after all charges dropped"
(http://www.canada.com/nationalpost/story.html?id=ead5bb60-723b-4f87-a2fe-2dbe0845d8f2). National Post
(Canwest MediaWorks Publications Inc.). Retrieved 2007-06-04.
38. "Stuck in Guantanamo: President Bush tried to create a new legal system for terrorism suspects. He created a
quagmire instead." (http://www.washingtonpost.com/wpdyn/content/article/2007/06/06/AR2007060602302.html). Washington Post. June 7, 2007. Retrieved 2007-06-07.
Further reading
57
Morrow & Co. ISBN0-688-05142-1.
National Security Law for Policymakers and Law Students
(http://majorbenjamintalmadge.blogspot.com/2009/03/national-security-law-for-policymakers.html/)
Human Rights First: In Pursuit of Justice; Prosecuting Terrorism Cases in the Federal Courts (2009)
(https://web.archive.org/web/20091111085043/http://www.humanrightsfirst.org/pdf/090723-LS-inpursuit-justice-09-update.pdf) at the Wayback Machine (archived November 11, 2009)
Mahler, Jonathan (2008), The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential
Power, New York: Farrar, Straus and Giroux, p.285, ISBN978-0-374-22320-5.
Happold, Matthew (2007), "Hamdan v Rumsfeld and the Law of War", Human Rights Law Review 7
(2): 418431, doi:10.1093/hrlr/ngm010 (https://dx.doi.org/10.1093%2Fhrlr%2Fngm010).
Testimony (http://www.fas.org/irp/congress/2006_hr/071106silliman.html) of Scott Silliman on
Hamdan v. Rumsfeld: Establishing a Constitutional Process", U.S. Senate Committee on the Judiciary,
July 11, 2006
External links
Court documents
Full text of the decision (http://www.supremecourt.gov/opinions/05pdf/05-184.pdf)PDF(1.31MiB)
Full text (http://www.law.cornell.edu/supct/html/05-184.ZS.html) (HTML with links to precedents,
statutes, and U.S. Constitution)
Full text (http://www.vlex.us/caselaw/US-Supreme-Court/Recent-Opinions/2100-320635,01.html) in vLex.us, HTML with links.
U.S. Supreme Court Official Reporter's Transcript of Oral Argument
Full text transcript of the oral argument
Groups File Amicus Briefs in Case Involving Osama Bin Laden's Driver
(http://www.phrusa.org/research/torture/amicusbrief-hamdan.html), Physicians for Human Rights
www.hamdanvrumsfeld.com (http://www.hamdanvrumsfeld.com) A website devoted to the case;
contains briefs and other pertinent documents
Petition for a writ of certiorari: Brief for the respondents in opposition
(http://www.usdoj.gov/osg/briefs/2004/0responses/2004-0702.resp.html), US Department of Justice,
December 2004
Text of the July 15th ruling (http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/045393a.pdf)PDF(67.7KiB), U.S. Court of Appeals for the District of Columbia Circuit, July 15, 2005.
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 (http://www.oyez.org/cases/20002009/2005/2005_05_184/briefs/Amicus%20Brief%20of%20Quirin%20Historians_001.pdf).
Pentagon documents
Military Commission Order No. 1 (http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf)
News reports, commentary

High Court Rejects Detainee Tribunals (http://www.washingtonpost.com/wp58
dyn/content/article/2006/06/29/AR2006062900928_pf.html), Washington Post, June 29, 2006

Hamdan v. Rumsfeld: The Supreme Court Affirms International Law
(http://jurist.law.pitt.edu/forumy/2006/06/hamdan-v-rumsfeld-supreme-court.php), JURIST, June 30,
2006
Hamdan, Common Article 3 and the True Spirit of the Law of War
(http://jurist.law.pitt.edu/forumy/2006/07/hamdan-common-article-3-and-true.php), JURIST, July 3,
2006
U.S. Charges Yemeni Described as Bin Laden Bodyguard (http://www.washingtonpost.com/wpdyn/articles/A50013-2004Jul14.html), Washington Post, July 14, 2004
Fourth Guantanamo Detainee Is Charged (http://www.washingtonpost.com/wp-dyn/articles/A498092004Jul14.html), Washington Post, July 14, 2004
Bin Laden driver charged in first Guantanamo hearing
(http://www.usatoday.com/news/washington/2004-08-24-gitmo-driver_x.htm), USA Today, August
25, 2004
Court permits terrorists to be tried by military commissions
(http://www.wlf.org/upload/071505LURS.pdf), Washington Legal Foundation, July 15, 2005
Protecting America's Freedom: National Security and Defense
(http://www.wlf.org/Litigating/casedetail.asp?detail=303), Washington Legal Foundation, July 15,
2005
"The Nation's Second-Highest Court" Upholds Military Commissions
(http://writ.corporate.findlaw.com/dorf/20050720.html), FindLaw, July 20, 2005
Understanding Hamdan v. Rumsfeld
(http://www.willamette.edu/~blong/LegalEssaysII/GuantanamoI.html)
Why Hamdan is Right about Conspiracy Liability (http://jurist.law.pitt.edu/forumy/2006/03/whyhamdan-is-right-about-conspiracy.php), JURIST
Why the Court Said No (http://www.nybooks.com/articles/19212), David D. Cole, New York Review
of Books, August 10, 2006
"George Clooney To Direct Matt Damon In Aaron Sorkin's War On Terror"
url=http%3A%2F%2Fmoviesblog.mtv.com%2F2009%2F09%2F22%2Fgeorge-clooney-to-directmatt-damon-in-aaron-sorkins-war-on-terror%2F%23more-21632&date=2009-09-23). MTV. 2009-0923. Archived from the original (http://moviesblog.mtv.com/2009/09/22/george-clooney-to-directmatt-damon-in-aaron-sorkins-war-on-terror/#more-21632) on 2009-09-23.
Retrieved from "http://en.wikipedia.org/w/index.php?title=Hamdan_v._Rumsfeld&oldid=651326843"
Categories: United States Supreme Court cases of the Roberts Court 2006 in United States case law
Extrajudicial prisoners of the United States United States Supreme Court cases
George W. Bush administration controversies United States military case law Human rights case law
59
Hamdi v. Rumsfeld
Hamdi v. Rumsfeld, 542 U.S. 507 (2004), is a United

States Supreme Court case in which the Court
recognized the power of the government to detain
enemy combatants, including U.S. citizens, but ruled
that detainees who are U.S. citizens must have the
rights of due process, and the ability to challenge their
enemy combatant status before an impartial authority.
It reversed the dismissal by a lower court of a habeas
corpus petition brought on behalf of Yaser Esam
Hamdi, a U.S. citizen who was being detained
indefinitely as an illegal enemy combatant after being
captured in Afghanistan in 2001. Following the court's
decision, on October 9, 2004, the U.S. government
released Hamdi without charge and deported him to
Saudi Arabia, where his family lived and he had grown
up, on the condition that he renounce his U.S.
citizenship and commit to travel prohibitions and other
conditions.
Contents
1 Background
1.1 Early life and capture
1.2 Detention and legal challenge
1.3 District case
1.4 Appellate case
4 See also
5 Footnotes
6 References
7 Further reading
8 External links
Background
Early life and capture
Hamdi v. Rumsfeld

Argued April 28, 2004
Full case name Yaser Esam Hamdi and Esam Fouad
Hamdi as next friend of Yaser Esam
Hamdi, Petitioners v. Donald H.
Rumsfeld, Secretary of Defense, et
al.
Citations
542 U.S. 507 (more)
124 S. Ct. 2633; 159 L. Ed. 2d 578;
2004 U.S. LEXIS 4761; 72 U.S.L.W.
4607; 2004 Fla. L. Weekly Fed. S
486
Prior history Order for attorney access granted,
E.D. Va., 5-29-02; reversed and
remanded, 294 F.3d 598 (4th Cir.
2002); motion to dismiss denied, 243
F.Supp.2d 527 (E.D. Va. 2002);
reversed and remanded, 316 F.3d
450 (4th Cir. 2003); rehearing
denied, 337 F.3d 335 (4th Cir. 2003);
cert. granted, 540 U.S. 1099 (2004)
Subsequent
Remanded to district court, 378 F.3d
history
426 (4th Cir. 2004)
Argument
Oral argument
(http://www.oyez.org/cases/20002009/2003/2003_03_6696/argument)
Opinion
Opinion announcement
Announcement (http://www.oyez.org/cases/20002009/2003/2003_03_6696/opinion)
Holding
U.S. citizens designated as enemy combatants by the
Executive Branch have a right to challenge their
detainment under the Due Process Clause. Fourth
Circuit Court of Appeals vacated and remanded.
Court membership
Chief Justice
William Rehnquist
60
Associate Justices
Yaser Esam Hamdi was born in Louisiana as a citizen

of the United States. In 1980, while still a child, he
moved with his family to Saudi Arabia.[1]
In the late summer of 2001,
Hamdi at the age of 20
went to Afghanistan,
traveling on his own for the
first time. He was doing
relief work for less than
two months before being
captured by the Afghan
Northern Alliance. They
turned him over to U.S.
military authorities during
John P. Stevens Sandra Day O'Connor

Antonin Scalia Anthony Kennedy
David Souter Clarence Thomas
Ruth Bader Ginsburg Stephen Breyer
Case opinions
Plurality
O'Connor, joined by Rehnquist,
Kennedy, Breyer
Concur/dissent Souter, joined by Ginsburg
Dissent
Scalia, joined by Stevens
Dissent
Thomas
Laws applied
U.S. Const. art. II, amend. V; 18 U.S.C.4001
(http://www.law.cornell.edu/uscode/18/4001.html);
115 Stat. 224 (Authorization for Use of Military
Force)
the U.S. invasion.[2] He

was classified as an enemy combatant by the U.S. armed forces and detained in
Hamdi during his
detention at Guantanamo
Bay.
connection with ongoing hostilities.[3]

Hamdi's father said that Hamdi had gone to Afghanistan to do relief work and
was trapped there when the U.S. invasion began, attempting to oust the
Taliban.[4]
Detention and legal challenge

After his capture in 2001, Hamdi was detained and interrogated in Afghanistan.[5] In January 2002, the
Americans transferred Hamdi to Guantanamo Bay.[5] In April 2002, when officials discovered that he held
U.S. (as well as Saudi) citizenship, they transferred him to a Naval prison brig in Norfolk, Virginia and
finally to the Naval Consolidated Brig in Charleston, South Carolina.[5] In June 2002, Hamdi's father, Esam
Fouad Hamdi, filed a habeas corpus petition in the United States District Court for the Eastern District of
Virginia to challenge his detention.[6]
The Bush administration claimed that because Hamdi was caught in arms against the U.S., he could be
properly detained as an enemy combatant,[7] without any oversight of presidential decision making, and
without access to an attorney or the court system. The administration argued that this power was
constitutional and necessary to effectively fight the War on Terror, declared by the Congress of the United
States in the Authorization for Use of Military Force Act passed after the September 11th terrorist attacks.
The government used its detention authority to ensure that terrorists were no longer a threat while active
combat operations continued and to ensure suspects could be fully interrogated.
District case
The Honorable Robert G. Doumar ruled that Hamdi's father was a proper "next friend" having standing to
sue on behalf of his son, and ordered that a federal public defender be given access to Hamdi. On appeal,
however, the Fourth Circuit reversed the District Court's order, ruling that the District Court had failed to
61
give proper deference to the government's "intelligence and security interests," and that it should proceed
with a properly deferential investigation.
The case was sent back to the District Court, which denied the government's motion to dismiss Hamdi's
petition. Judge Doumar found the government's evidence supporting Hamdi's detention "woefully
inadequate," and based predominantly on hearsay and bare assertions. The District Court ordered the
government to produce numerous documents for in camera review by the court that would enable it to
perform a "meaningful judicial review," such as the statements by the Northern Alliance regarding Hamdi's
capture, the dates and circumstances of his capture and interrogations, and a list of all the officials involved
in the determination of his "enemy combatant" status.
Appellate case
The government appealed Judge Doumar's order to produce the evidence, and the Fourth Circuit again
reversed the District Court. Because it was "undisputed that Hamdi was captured in a zone of active combat
in a foreign theater of conflict," the Fourth Circuit said that it was not proper for any court to hear a
challenge of his status. It ruled that the broad warmaking powers delegated to the President under Article
Two of the United States Constitution and the principle of separation of powers prohibited courts from
interfering in this vital area of national security.
After the Fourth Circuit denied a petition for rehearing en banc, Hamdi's father appealed to the U.S.
Supreme Court. It granted certiorari review and reversed the Fourth Circuit's ruling. Hamdi was represented
before the Court by the late Federal Public Defender Frank W. Dunham, Jr., and the Government's side was
argued by the Principal Deputy Solicitor General, Paul Clement.

Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed
that the Executive Branch does not have the power to hold a U.S. citizen indefinitely without basic due
process protections enforceable through judicial review.
Justice O'Connor wrote a plurality opinion representing the Court's judgment, which was joined by Chief
Justice Rehnquist and Justices Breyer and Kennedy. O'Connor wrote that although Congress had expressly
authorized the detention of enemy combatants in its Authorization for Use of Military Force (AUMF)
passed after 9/11, due process required that Hamdi have a meaningful opportunity to challenge his enemy
combatant status.
Justice O'Connor used the three-part test of Mathews v. Eldridge to limit the due process to be received.
This required notice of the charges and an opportunity to be heard, though because of the burden of ongoing
military conflict upon the Executive, normal procedural protections, such as placing the burden of proof on
the government or the ban on hearsay, need not apply. O'Connor suggested the Department of Defense
create fact-finding tribunals similar to the AR 190-8 to determine whether a detainee merited continued
detention as an enemy combatant.
In response, the United States Department of Defense created Combatant Status Review Tribunals,
modeling them after the AR 190-8. O'Connor did not write at length on Hamdi's right to an attorney,
because by the time the Court rendered its decision, Hamdi had been granted access to one. But, O'Connor
wrote that Hamdi "unquestionably has the right to access to counsel in connection with the proceedings on
62
remand." The plurality held that judges need not be involved in reviewing these cases, rather only an
"impartial decision maker" was required. Justice O'Connor also limited the reach of the Courts conclusion
regarding the executive authority to detain enemy combatants:
"For purposes of this case, the enemy combatant that [the government] is seeking to detain is an
individual who, it alleges, was part of or supporting forces hostile to the United States or
coalition partners in Afghanistan and who engaged in an armed conflict against the United
States there. We therefore answer only the narrow question before us, whether the detention of
citizens falling within that definition is authorized."[8]
The plurality asserted that the Judiciary must not defer to the Executive with respect to detentions. Instead
the constitution empowers the Judiciary to act as a check on Executive power in this realm. Justice
O'Connor wrote:
[W]e necessarily reject the Government's assertion that separation of powers principles
mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the
position that the courts must forgo any examination of the individual case and focus
exclusively on the legality of the broader detention scheme cannot be mandated by any
reasonable view of separation of powers, as this approach serves only to condense power
into a single branch of government. We have long since made clear that a state of war is not
a blank check for the President when it comes to the rights of the Nation's citizens.
'Youngstown Sheet & Tube Co. v. Sawyer,' 343 U. S., at 587. Whatever power the United
States Constitution envisions for the Executive in its exchanges with other nations or with
enemy organizations in times of conflict, it most assuredly envisions a role for all three
branches when individual liberties are at stake. [...] Likewise, we have made clear that,
unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial
Branch to play a necessary role in maintaining this delicate balance of governance, serving
as an important judicial check on the Executive's discretion in the realm of detentions. [...] it
would turn our system of checks and balances on its head to suggest that a citizen could not
make his way to court with a challenge to the factual basis for his detention by his
government, simply because the Executive opposes making available such a challenge.
Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is
entitled to this process.
Justice David Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality's judgment that
due process protections must be available for Hamdi to challenge his status and detention, providing a
majority for that part of the ruling. However, they dissented from the plurality's ruling that AUMF
established Congressional authorization for the detention of enemy combatants.
Justice Antonin Scalia's dissent, joined by Justice John Paul Stevens, went the furthest in restricting the
Executive power of detention. Scalia asserted that based on historical precedent, the government had only
two options to detain Hamdi: either Congress must suspend the right to habeas corpus, or Hamdi must be
tried under normal criminal law. Scalia wrote that the plurality, though well-meaning, had no basis in law
for trying to establish new procedures that would be applicable in a challenge to Hamdi's detentionit was
only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to
invent an acceptable process for detention.
63
Justice Clarence Thomas was the only justice who sided entirely with the Executive branch and the Fourth
Circuit's ruling, based on his view of the security interests at stake and the President's broad war-making
powers. Thomas wrote that the Court's rationale would also require due process rights for bombing targets:
"Because a decision to bomb a particular target might extinguish life interests, the pluralitys analysis seems
to require notice to potential targets." Thomas also wrote that Congress intended that the AUMF authorized
such detentions. Thomas would later make use of this dissent in Turner v. Rogers in 2011.
Although by the terms used in the Court's holdings, they were apparently limited to "citizen-detainees," the
last paragraph of section III, D of the O'Connor plurality (four justices: O'Connor, Rehnquist, Kennedy, and
Breyer) relies on the Geneva Convention and states that Habeas Corpus should be available to an "alleged
enemy combatant."
On the same day, the Court held in Rasul v. Bush (2004) that U.S. courts have jurisdiction to hear
habeas corpus petitions filed by the Guantanamo detainees, and other foreign nationals.
The government conceded that some very limited due process rights, allowing for hearings to determine the
detainees' status as enemy combatants and the right to legal counsel, would be extended to all of the
Guantanamo detainees, citizen and non-citizen alike. The application of the Court's decisions in these cases
is consistent with the fact that the other two justices in the Hamdi majority, as well as two of the dissenting
justices (Scalia and Stevens), were more restrictive in their willingness to concede any of the detention
powers requested by the government for Guantanamo detainees in the Hamdi case.
In regard to the detention of detainees without charge, in section I of the O'Connor plurality opinion, the
plurality relied on the time-honored traditions of war, the Geneva Convention, and a long list of other
international treaties, to hold that the government had authority under the Authorization for Use of Military
Force (2001) to hold any enemy combatants, provided enemy combatants had been seized on the battlefield
participating in active hostilities, for the sole objective of preventing an enemy combatant from returning to
the battlefield, and then only so long as there continued to be active hostilities.[8] The plurality held that
such protective detention could be applied to both citizen and non-citizen enemy combatants.
The plurality opinion stated:
There can be no doubt that individuals who fought against the United States in Afghanistan
as part of the Taliban, an organization known to have supported the al Qaeda terrorist
network responsible for those attacks, are individuals Congress sought to target in passing
the AUMF. We conclude that detention of individuals falling into the limited category we
are considering, for the duration of the particular conflict in which they were captured, is so
fundamental and accepted an incident to war as to be an exercise of the "necessary and
appropriate force" Congress has authorized the President to use. [...] A citizen, no less than
an alien, can be "part of or supporting forces hostile to the United States or coalition
partners" and "engaged in an armed conflict against the United States," [...]; such a citizen, if
released, would pose the same threat of returning to the front during the ongoing conflict [as
an alien].[...] Because detention to prevent a combatant's return to the battlefield is a
fundamental incident of waging war, in permitting the use of "necessary and appropriate
force", Congress has clearly and unmistakably authorized detention in the narrow
circumstances considered here. [...] Under the definition of enemy combatant that we accept
today as falling within the scope of Congress' 64authorization, Hamdi would need to be "part
of or supporting forces hostile to the United States or coalition partners" and "engaged in an
armed conflict against the United States" to justify his detention in the United States for the
duration of the relevant conflict.
The U.S. government had argued that it had the right to detain enemy combatants indefinitely for the two
purposes of interrogation and to prevent a return to the battlefield. Justice OConnor rejected the first
purpose by stating definitively that "indefinite detention for the purpose of interrogation is not authorized.
With regard to the second purpose, the plurality held "Necessary and appropriate force" amounted to
authorization to detain for the duration of the relevant conflict," in order to prevent enemy combatants from
rejoining the fight.[8]
Of the four justices outside the plurality, Justices Ginsburg and Souter limited their opinions to their
position that Section 4001(a) of Title 18 of the United States Code (the Non-Detention Act; enacted to
prevent the sort of detention that occurred when the United States placed Japanese-American citizens in
concentration camps during World War II), prevented the detention of U.S. citizens. Justice Scalia (whose
opinion was joined by Justice Stevens), restricted his holding to citizen-detainees and implied that anyone
held outside of United States' territory might be beyond the reach of the Court altogether. Again, the Rasul
case did not directly address the detention issue, and any hearings would be limited to the determination of
enemy combatant status.
In Hamdan v. Rumsfeld (2006), the Court decided that the "military commissions" created to try
unlawful combatants for war crimes suffered from certain fatal procedural defects under the Uniform
Code of Military Justice and the Geneva Convention, and were without other legal authority to
proceed. They overruled Congress' attempt to deprive the Court of jurisdiction to decide that issue by
passing the Detainee Treatment Act. Justices in the majority (particularly Justices Kennedy and
Breyer) disagreed with Justice Stevens as to whether the "charge" of conspiracy could be maintained
to justify the determination of unlawful combatant status. Although the Court struck down the
military commissions as created by the Executive Branch, they did not provide the detainees with
direct access to the federal courts, but only with access to a fair and impartial hearing to a tribunal
constitutionally authorized by Congress and proceeding with certain due process guarantees (such as
one operated under terms similar to those provided by Article I courts under the UCMJ or according
to the terms of the Third Geneva Convention of 1949).
On October 17, 2006, the president signed the Military Commissions Act, passed by Congress and
authorizing a type of military tribunal to be used at Guantanamo Bay detention camp, as requested by
the Bush administration. That fall, the administration transferred fourteen high-value detainees to
Guantanamo Bay from black sites overseas.
In Boumediene v. Bush (2008), the Court ruled that detainees, and other foreign nationals, do have the
right to direct access to federal courts to challenge their detentions.
See also
Donald Rumsfeld
Center for Constitutional Rights, a New York Citybased legal nonprofit organization that legally
represents over 150 of the Guantanamo Bay detainees
Terrorism
Donald Vance
65
Footnotes
1. "This case arises out of the detention of a man whom the Government alleges took up arms with the Taliban
during this conflict. His name is Yaser Esam Hamdi. Born an American citizen in Louisiana in 1980, Hamdi
moved with his family to Saudi Arabia as a child." p. 1
2. "By 2001, the parties agree, [Hamdi] resided in Afghanistan. At some point that year, he was seized by members
of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was
turned over to the United States military." p.2
3. "The U.S. armed forces in Afghanistan determined that Hamdi is an enemy combatant who should be detained in
connection with the ongoing hostilities." p. 1
4. "Hamdi's father has asserted in documents found elsewhere in the record that his son went to Afghanistan to do
'relief work,' and that he had been in that country less than two months before September 11, 2001, and could not
have received military training. The 20-year-old was traveling on his own for the first time, his father says, and
'[b]ecause of his lack of experience, he was trapped in Afghanistan once that military campaign began.'" p. 3-4
5. "The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him
to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is
an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a
recent transfer to a brig in Charleston, South Carolina." p. 2
6. "In June 2002, Hamdis father, Esam Fouad Hamdi, filed a petition for writ of habeas corpus, naming as
petitioners both Hamdi and himself as next friend." p. 17
7. Kathleen M. Sullivan and Gerald Gunther, Constitutional Law: Sixteenth Edition (Foundation Press: New York,
2007) 273.
8. Amy Kalman and Chris Schroeder. " 'Hamdi v. Rumsfeld': Americans Captured on the Battlefield Can Be
Detained Without Criminal Charges But They Are Entitled to a Hearing"
(http://web.law.duke.edu/publiclaw/supremecourtonline/commentary/hamvrum). Duke Law Commentary.
Retrieved 6 January 2013.
References
Supreme Court of the United States (June 2004). "Hamdi v. Rumsfeld (Syllabus)"
(http://www.law.cornell.edu/supct/pdf/03-6696P.ZS).
Supreme Court of the United States (June 2004). "Hamdi v. Rumsfeld (Opinion)"
(http://www.law.cornell.edu/supct/pdf/03-6696P.ZO).
Supreme Court of the United States (June 2004). "Hamdi v. Rumsfeld (Scalia Dissent)"
(http://www.law.cornell.edu/supct/pdf/03-6696P.ZD).
Supreme Court of the United States (June 2004). "Hamdi v. Rumsfeld (Thomas Dissent)"
(http://www.law.cornell.edu/supct/pdf/03-6696P.ZD1).
Supreme Court of the United States (June 2004). "Hamdi v. Rumsfeld (Souter Concur in Judgement)"
(http://www.law.cornell.edu/supct/pdf/03-6696P.ZX).
Supreme Court of the United States (April 2004). "Hamdi v. Rumsfeld (Oral Argument Transcript)"
(http://wayback.archive.org/web/20040616034958/http://www.jenner.com/files/tbl_s69NewsDocumentOrder/Fil
eUpload500/354/03-6696_argument_hamdi.pdf) (PDF).
Frank W. Dunham, Jr. (Counsel of Record) (February 2004). "Hamdi v. Rumsfeld (Brief for the Petitioners)"
eUpload500/156/Brief_Petitioners.pdf) (PDF).
Theodore B. Olson (Counsel of Record) (March 2004). "Hamdi v. Rumsfeld (Brief for the Respondents)"
eUpload500/216/Brief_Respondents.pdf) (PDF).
The United States Court of Appeals for the 4th Circuit (January 2003). "Hamdi v. Rumsfeld (Opinion)"
(http://pacer.ca4.uscourts.gov/opinion.pdf/027338.P.pdf) (PDF).
66
Further reading
Jackson A.; Niday, II (2008). "The War against Terror as War against the Constitution". Canadian Review
of American Studies 38 (1): 101117. doi:10.3138/cras.38.1.101
(https://dx.doi.org/10.3138%2Fcras.38.1.101).
External links
Full text of the Court's opinions in Hamdi v. Rumsfeld
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-6696&friend) at
FindLaw
NPR audio on the decision (http://www.npr.org/features/feature.php?wfId=3022055)
The Center for Constitutional Rights section on Hamdi v. Rumsfeld with detailed documents and
insight (http://ccrjustice.org/ourcases/past-cases/hamdi-v.-rumsfeld-(amicus))
FindLaw "war on terror" section (http://news.findlaw.com/legalnews/us/terrorism/index.html)
The Supreme Court, the Detainees, and the "War on Terrorism"
(http://writ.news.findlaw.com/scripts/printer_friendly.pl?page=/mariner/20040705.html) (FindLaw)
Hamdi v. Rumsfeld: U.S. Supreme Court Brief Resource Center, U.S. Supreme Court Amici Curi
Briefs
(http://wayback.archive.org/web/20040304145444/http://www.jenner.com/news/news_item.asp?
id=12551224) (Jenner and Block Law Firm)
Yaser Esam Hamdi v. Donald Rumsfeld Settlement Agreement
(http://news.findlaw.com/hdocs/docs/hamdi/91704stlagrmnt.html) (FindLaw)
Retrieved from "http://en.wikipedia.org/w/index.php?title=Hamdi_v._Rumsfeld&oldid=645381994"
Categories: United States Supreme Court cases United States civil commitment case law
United States separation of powers case law United States habeas corpus case law
2004 in United States case law Guantanamo captives' habeas corpus petitions
American Civil Liberties Union litigation United States Supreme Court cases of the Rehnquist Court
67
HughesRyan Act
The HughesRyan Act is a 1974 United

States federal law that amended the Foreign
Assistance Act of 1961. The Act was named
for its co-authors, Senator Harold E. Hughes
(D-Iowa) and Representative Leo Ryan (DCA). The Act required the President of the
United States to report all covert operations
of the Central Intelligence Agency to one or
more Congressional committees within a set
time limit.
This amendment addressed the question of
CIA and Defense Department covert actions,
and prohibited the use of appropriated funds
for their conduct unless and until the
President issues an official "Finding" that
each such operation is important to the
national security and submits these Findings
to the appropriate Congressional
committees a total of six committees, at
the time, growing to eight committees after
the House and Senate "select committees"
on intelligence were established.
The legislation was meant to ensure that the
intelligence oversight committees within
Congress were told of CIA actions within a
reasonable time limit. Senator Hughes, in
introducing the legislation in 1973, also saw
it as a means of limiting major covert
operations by military, intelligence, and
national security agents conducted without
the full knowledge of the president.
Contents
1 History
2 Notes
3 References
4 See also
Hughes-Ryan Act
Other short
titles
Foreign Assistance Act of 1974

Hughes-Ryan Act of 1974
Long title
An Act to amend the Foreign Assistance Act of

1961, and for other purposes.
Nicknames
Foreign Assistance Act
Enactedby
the 93rd United States Congress
Effective
December 30, 1974

Citations
Public Law
93-559 (http://www.gpo.gov/fdsys/pkg/STATUTE88/pdf/STATUTE-88-Pg1795.pdf)
Statutes at
Large
88Stat.1795 (http://legislink.org/us/stat-88-1795),
Sec. 662-663
Codification
Titles
amended
22 U.S.C.: Foreign Relations and Intercourse
U.S.C.
sections
amended
22 U.S.C. ch. 32
(http://www.law.cornell.edu/uscode/text/22/chapter32) 2422
Legislative history
Introduced in the Senate as S. 3394

(https://www.congress.gov/bill/93rd-congress/senatebill/3394) by Harold E. Hughes (D-Iowa) and Leo Ryan
(D-CA) on April 29, 1974
Committee consideration by Senate Foreign Relations
Passed the Senate on December 4, 1974(46-45
Passed the House on December 11, 1974(201189
(http://www.govtrack.us/congress/votes/93-1974/h1038), in
lieu of H.R. 17234)
Reported by the joint conference committee on
December 17, 1974; agreed to by the Senate on December
68
History
17, 1974(4943
and by the House on December 18, 1974(209189
(http://www.govtrack.us/congress/votes/93-1974/h1061))
Signed into law by President Gerald R. Ford on December
30, 1974
By the early years of the 1970s, the

unpopular war in Southeast Asia and the
unfolding Watergate scandal brought the era
of minimal oversight to a screeching halt.
The Congress was determined to rein in the
Nixon administration and to ascertain the extent to which the nation's intelligence agencies had been
involved in questionable, if not outright illegal, activities. A major stimulus for the amendment came from
1972 and 1973 hearings of the Senate Armed Services Committee, provoked by Senator Hughes, a member
of the committee, into covert military operations in Cambodia, Laos, and North Vietnam in the early 1970s.
The committee had found that Air Force and Navy air elements had conducted secret air strikes and falsified
after-action reports to conceal the activity. For Hughes and several other senators, the military activity
represented a secret war conducted through back-channel communications from the White House directly to
field commanders in the Pacific Theater and the Vietnam War.
A series of troubling revelations started to appear in the press concerning intelligence activities. The dam
broke on 22 December 1974, when the New York Times published a lengthy article by Seymour Hersh
detailing operations engaged in by the CIA over the years that had been dubbed the "family jewels." Covert
action programs involving assassination attempts against foreign leaders and covert attempts to subvert
foreign governments were reported for the first time. In addition, the article discussed efforts by intelligence
agencies to collect information on the political activities of US citizens.
These revelations convinced many Senators and Representatives that the Congress itself had been too lax,
trusting, and naive in carrying out its oversight responsibilities.
The first legislative response was enactment in 1974 of the Hughes
Congressman Leo Ryan
Ryan Amendment to the Foreign Assistance Act of 1961.[1] The

passage of the act posed four fundamental implications for executive
power as it relates to covert action. First, the Act established ultimate
accountability of the President for all covert action conducted by the
CIA. As a result, this removed most vestiges of "plausible
deniability" on the part of the President in case the action were to be
exposed to the public or political rivals. Third, the act fundamentally
expanded circle of "witting" persons in Congress leading to a
dramatically higher risk of exposure through leaks in the event of
Congressional opposition. Fourth, assuming these three features
stand, the passage of the Act created both de facto and de jure
Congressional veto power. This power could be used
constitutionally, whereby the Congress could simply refuse to fund
the covert action in question, either through withholding of funds or
through leaking the issue to the press.
Notes
1. ^ Information is from CIA site, Center for the Study of Intelligence, which is a US governmental
organization. Therefore the original information compiled on this wikisite is free of copyright. See
69
Copyright and U.S. Government works
References
See also
Intelligence Oversight Act
Church Committee
Clark Amendment
Boland Amendment
Foreign Assistance Act of 1974
Retrieved from "http://en.wikipedia.org/w/index.php?title=HughesRyan_Act&oldid=624019779"
Categories: 1974 in law Cold War history of the United States
United States federal defense and national security legislation Leo Ryan 1974 in international relations
This page was last modified on 3 September 2014, at 14:59.
70
In re Neagle
In re Neagle, 135 U.S. 1 (1890)[1], was a United

States Supreme Court decision that determined the
question of whether the Attorney General of the
United States had authority to appoint U.S. Marshals
as bodyguards to Supreme Court Justices.
In re Neagle
Facts
Decided April 14, 1890
Full case In re David Neagle
name
Citations 135 U.S. 1
(more)
10 S. Ct. 658; 34 L. Ed. 55; 1890 U.S. LEXIS
2006
Prior
Appeal from the Circuit Court of the United
history States for the Northern District of California
Holding
Section 3 of Art. II of the U.S. Constitution requires that
the Executive Branch "take care that the laws be
faithfully executed." The court determined that the
appointment of bodyguards to Supreme Court Justices
ensured the faithful execution of the law of the United
States. The court also relied on a statute granting
marshals "the same powers, in executing the laws of the
United States, as sheriffs and their deputies in such State
may have, by law, in executing the laws thereof."
Court membership
U.S. Marshal David Neagle was appointed by the

attorney general to serve as a bodyguard to Justice
Stephen J. Field while he rode circuit in California.
David S. Terry, a disappointed litigant with a grudge
against Field, approached and appeared to be about
to attack Field. Neagle shot and killed him. Neagle
was arrested by California authorities on a charge of
murder. The United States sought to secure the
release of Neagle on a writ of habeas corpus. In the
absence of a law specifically authorizing the
appointment of bodyguards for Supreme Court
Justices, the government relied on a statute that
made the writ available to those "in custody for an
act done or omitted in pursuance of a law of the
United States."
See also
In re
List of United States Supreme Court cases,
volume 135
Chief Justice
Melville Fuller
Associate Justices
Samuel F. Miller Stephen J. Field
Joseph P. Bradley
John M. Harlan Horace Gray
Samuel Blatchford Lucius Q.C. Lamar II
David J. Brewer
Case opinions
Majority Miller, joined by Bradley, Harlan, Gray,
Blatchford, Brewer
Dissent Lamar, joined by Fuller
Field took no part in the consideration or decision of the case.
Laws applied
71
U.S. Const. Art. III, Sec. 788 of the Revised Statutes of

the United States
External links
(http://www.oyez.org/oyez/resource/case/182/)In re Neagle at
oyez.org

Cunningham v. Neagle

title=In_re_Neagle&oldid=644675087"
Categories: United States Supreme Court cases 1890 in United States case law
United States Supreme Court cases of the Fuller Court
72
Little v. Barreme
Little v. Barreme, 6 U.S. 170 (1804), was a United

States Supreme Court case in which the Court found
that the President of the United States does not have
"inherent authority" or "inherent powers" which
allow him to ignore a law passed by the United
States Congress.
Little v. Barreme

Argued December 16, 19, 1801
Decided February 27, 1804
Full case George Little, et al. v. Barreme, et al.
name
(more)
2 L. Ed. 243; 1804 U.S. LEXIS 255; 2 Cranch
170
Court membership
Contents
1 Summary
2 Facts
3 Procedural history
4 Issues
5 Holding
5.1 Reasoning
6 See also
7 References
8 External links
Chief Justice
John Marshall
Associate Justices
William Cushing William Paterson
Samuel Chase Bushrod Washington
Alfred Moore
Summary
A Presidential executive order was invalidated
because the President was operating outside of his
express Congressional authority.
Case opinions
Majority Marshall, joined by unanimous
Laws applied
U.S. Const.
Facts
The case arose out of "an interesting and revealing incident" that occurred during the "Quasi War" with
France at the end of the 18th century.[1] The frigate USS Boston commanded by captain George Little
captured a Danish vessel, the Flying Fish, under orders of the Secretary of the Navy on behalf of President
John Adams "to intercept any suspected American ship sailing to or from a French port."[2] The Congress,
however, had passed a law authorizing the navy to seize "vessels or cargoes [that] are apparently, as well as
really, American" and "bound or sailing to any [French] port" in an attempt to prevent American vessels
transporting goods to France. The Flying Fish was sailing from and not to a French port. Captain Little was
declared to be liable for executing a command that was illegal in nature. Little appealed to the Supreme
Court, where the decision was upheld.
Procedural history
73
1. District Court, found for Petitioner

2. Circuit Court of Massachusetts, reversed, found for Respondent
3. United States Supreme Court, affirmed, found for Respondent
Issues
1. Whether an order of the President, which in effect attempts to make law, can override an act of
Congress.
2. Officers are responsible for execution of illegal commands, despite nature of military chain of
command.
Holding
No, an order of the President which is in contradiction with an act of Congress is illegally put forth.
Reasoning
The legislative branch makes laws and the executive branch enforces the laws. The Act of Congress only
provided for the capture of vessels traveling to France. "The Flying Fish was on a voyage from, not to, a
French port, and was therefore, had she even been an American vessel, not liable to capture on the high
seas." The Act limited the presidents authority by only allowing the capture of certain vessels. The
President acted contrary to these limitations.
See also
References
1. Woods, Thomas (2005-07-07) Presidential War Powers (http://www.lewrockwell.com/woods/woods45.html),
LewRockwell.com
2. Smith, Jean Edward. John Marshall: Definer of A Nation.(c) 1996, Henry Holt and Company, Inc. New York,
NY. p. 339
External links
Full text of the decision courtesy of Findlaw.com (http://laws.findlaw.com/us/6/170.html)
LoveAllPeople.org: "Inherent Presidential Power Is Always Subject To The Inherent Congressional
Powers To Make The Laws And Enforce Oversight Of The Executive Branch, Even In Time Of War"
(http://www.loveallpeople.org/inherentpowers.html)
Retrieved from "http://en.wikipedia.org/w/index.php?title=Little_v._Barreme&oldid=644644523"
Categories: FranceUnited States relations United States admiralty case law
United States Supreme Court cases 1804 in United States case law
74
United States federal sovereign immunity case law Quasi-War United States executive orders
United States presidential history DenmarkUnited States relations
United States Supreme Court cases of the Marshall Court
75
Medelln v. Texas
Medelln v. Texas, 552 U.S. 491 (2008), is a

United States Supreme Court decision that held that
even if an international treaty may constitute an
international commitment, it is not binding
domestic law unless Congress has enacted statutes
implementing it or unless the treaty itself is "selfexecuting." Also, the Court held that decisions of
the International Court of Justice are not binding
domestic law and that, without authority from the
United States Congress or the Constitution, the
President of the United States lacks the power to
enforce international treaties or decisions of the
Medelln v. Texas

Argued October 10, 2007
Full case
Jos Ernesto Medelln v. Texas
name
Docket nos. 06-984
Citations
552 U.S. 491 (more)
128 S. Ct. 1346; 170 L. Ed. 2d 190; 2008
U.S. LEXIS 2912; 76 U.S.L.W. 4143; 20081 U.S. Tax Cas. (CCH) P50,242; 21 Fla. L.
Weekly Fed. S 126
Prior history Medelln v. State, No. 71,997 (Tex. Crim.
App., May 16, 1997); petition denied, S.D.
Tex.; certificate of appealability denied, 371
F.3d 270 (5th Cir. 2004); cert. granted, 543
U.S. 1032 (2005); cert. dismissed, 544 U.S.
660 (2005) (per curiam) (Medelln I); Ex
parte Medelln, 223 S.W. 3d 315 (Tex.
Crim. App. 2006); cert. granted Ex parte
Medelln, 550 U.S. 917 (2007)
Subsequent Stay and petition denied, 554 U.S. 759
history
(2008) (Medelln III)
Argument
Oral argument
(http://www.oyez.org/cases/20002009/2007/2007_06_984/argument/)
Holding
Neither Case Concerning Avena and Other Mexican
Nationals (Mex. v. U.S.), 2004 I. C. J. 12 (Judgment of
Mar. 31) nor the President's Memorandum to the Attorney
General (Feb. 28, 2005) constitutes enforceable federal law
that pre-empts state limitations on the filing of habeas
corpus petitions.
Court membership
International Court of Justice.[1]
Contents
1 History
2 Decision
2.1 Justice John Paul Stevens
concurrence
2.2 Dissent
3 Execution
4 See also
5 References
6 Further reading
7 External links
History
The United States ratified the United Nations
Charter on October 24, 1945.[2] Article 92 of the
Charter established the International Court of
Justice.[3] The ICJ Statute, which established the
procedures and jurisdiction of the ICJ and was
attached to the U.N. Charter, delineates two ways
in which a nation may consent to ICJ jurisdiction:
It may consent generally to jurisdiction on any
question arising under a treaty or general
Chief Justice
John G. Roberts
Associate Justices
76
international law, or it may consent specifically to

jurisdiction over a particular category of cases or

disputes pursuant to a separate treaty.[4]
Case opinions
Majority
Roberts, joined by Scalia, Kennedy,
Thomas, Alito
Concurrence Stevens
Dissent
Breyer, joined by Souter, Ginsburg
Laws applied
Optional Protocol Concerning the Compulsory Settlement
of Disputes to the Vienna Convention, April 24, 1963,
(1970) 21 U.S.T. 325, T.I.A.S. No. 6820; Article 36(1)(b)
of the Vienna Convention on Consular Relations; Article
94 of the United Nations Charter; U.S. Const., Art. II, 3
In 1969, the United States ratified the Vienna

Convention on Consular Relations of April 24,
1963,[5] and the Optional Protocol Concerning the
Compulsory Settlement of Disputes to the Vienna
Convention of April 24, 1963.[6] Article 36 of the
Vienna Convention requires that foreign nationals
who are arrested or detained be given notice
"without delay" of their right to have their embassy
or consulate notified of that arrest. The Optional
Protocol provides that disputes arising out of the
interpretation or application of the Vienna
Convention "shall lie within the compulsory jurisdiction of the International Court of Justice".[7]
The United States withdrew from general ICJ jurisdiction on October 7, 1985.[8]
On June 24, 1993, Jos Ernesto Medelln (an 18-year-old Mexican citizen) and several other gang members
participated in the murder of Jennifer Ertman and Elizabeth Pea, when they raped a 14-year-old and 16year-old girl for an hour in Houston, Texas. Both girls were killed to prevent them from identifying their
assailants. Medelln strangled one of the girls with her own shoelaces.[9][10]
Hours after Medellin's arrest he admitted to his part in the crime and boasted of having "virgin blood" on his
underpants.[11]
Medelln was arrested five days later, and signed a confession after being given his Miranda warning. Texas
authorities did not, however, advise him of his right to contact his consulate under the terms of the Vienna
Convention.[9][10] Medelln was convicted of rape and murder, and sentenced to death in 1997. He appealed,
and raised the issue of his Vienna Convention rights as part of his appeal, but his conviction was upheld by
the trial court and by the Texas Court of Criminal Appeals.[12]
In 2003, Medelln filed a petition for habeas corpus in United States district court. The district court denied
relief, holding that Medelln's Vienna Convention claim should have been raised at trial (not on appeal) and
he had failed to show prejudice against his case arising from the Vienna Convention violation.[13]
Also in 2003, Mexico brought suit against the United States in the ICJ, claiming that the United States had
failed to notify 51 defendants (all Mexican citizens having been accused in state courts of committing
crimes in the U.S.) of their Vienna Convention right to notify their consulate. Medelln was one of the 51
Mexican nationals named in the suit. The following year, the ICJ ruled in Case Concerning Avena and
Other Mexican Nationals (Mex. v. U. S.), 2004 I.C.J. 12 (Judgment of March 31) (Avena) that the 51
Mexican nationals were entitled to review and reconsideration of their convictions and sentences.[14]
77
Medelln's appeal now found its way to the Fifth Circuit Court of Appeals. Medelln raised the ICJ's ruling
in Avena before the Fifth Circuit, but the federal appellate court denied relief.[15]
On March 7, 2005, after the ICJ's judgment in Avena, the United States withdrew from the Optional
Protocol.[16][17]
Medelln appealed to the U.S. Supreme Court, which granted a writ of certiorari.[18]
Before the Supreme Court could hear the case, however, President George W. Bush issued a Memorandum
to the United States Attorney General.[19] In the Memorandum, President Bush asserted authority under the
Constitution and the various laws of the United States to order states to review the convictions and
sentences of foreign nationals who had not been advised of their Vienna Convention rights. Because of the
President's Memorandum, Medelln filed a second case in state court for habeas corpus.[20] The U.S.
Supreme Court then dismissed Medelln's first petition for certiorari in a per curiam decision, Medelln v.
Dretke, 544 U.S. 660 (2005) (Medelln I).[21]
The Texas Court of Criminal Appeals dismissed Medelln's second appeal,[20] and the U.S. Supreme Court
granted certiorari a second time.[22]
As Medelln's second appeal was under consideration in Texas, the U.S. Supreme Court decided SanchezLlamas v. Oregon, 548 U.S. 331 (2006). Although the decision did not involve individuals named in the
Avena judgment, the Court held the ICJ's ruling in Avena to be in error. Absent a clear and express
statement to the contrary in either the Vienna Convention and the Optional Protocol, the Court held in
Sanchez-Llamas, the procedural rules of each nation govern the implementation of the treaty. Since
Sanchez-Llamas' rights had been observed under both state and federal law as well as various rulings of the
Supreme Court, the High Court upheld his conviction.[23]
Decision
Chief Justice John G. Roberts wrote the majority's opinion.
The majority held that the Avena judgment is not enforceable as domestic law. A treaty is not binding
domestic law, it said, unless Congress has enacted statutes implementing it or the treaty itself conveys an
intention that it is "self-executing."[24] None of the relevant treaties the Optional Protocol, the U.N.
Charter, or the ICJ Statute were self-executing, and no implementing legislation had been enacted, the
Court found.[25]
The Court also rejected Medelln's claim that Article 94 of the U.N. Charter requires the United States to
"undertake to comply" with the ICJ ruling. Chief Justice Roberts observed that Article 94(2) of the Charter
provides for explicit enforcement for noncompliance by referral to the United Nations Security Council, and
for appeals to be made only by the aggrieved state (not an individual such as Medelln).[26] Even so, the
United States clearly reserved the right to veto any Security Council resolutions.[26] The majority also held
78
that the ICJ statute contained in the U.N. Charter also forbade individuals from being parties to suits before
the International Court. The ICJ statute is a pact between nations, Justice Roberts said, and only nations (not
individuals) may seek its judgment.[27]
Relying on Sanchez-Llamas, the Supreme Court then held that, absent a clear and express statement to the
contrary in the relevant treaties, domestic procedural rules govern a treaty's implementation.[28]
The Court also rejected Medelln's argument that the President's February 28, 2005 Memorandum was
binding on state courts. The Court relied on Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952),
recognizing that "plainly compelling interests" were at stake in the Medelln case. Yet:
Such considerations, however, do not allow us to set aside first principles. The President's
authority to act, as with the exercise of any governmental power, 'must stem either from an act
of Congress or from the Constitution itself.'[29]
The majority concluded that neither condition had been met. Neither the government nor the defendant had
cited any statutory authority which authorized the President to act. Instead, the President claimed that the
Optional Protocol and U.N. Charter implicitly gave him the authority to act. The Court disagreed: "The
President has an array of political and diplomatic means available to enforce international obligations, but
unilaterally converting a non-self-executing treaty into a self-executing one is not among them."[30] The
President also claimed that Congress had acquiesced in the exercise of presidential power by failing to act
following the resolution of prior ICJ controversies. But, Roberts held, "A review of the Executive's actions
in those prior cases, however, cannot support the claim that Congress acquiesced in this particular exercise
of Presidential authority, for none of them remotely involved transforming an international obligation into
domestic law and thereby displacing state law."[31] The President also founded his action on "related"
statutory responsibilities and an "established role" in litigating foreign policy concerns. But none of the
examples cited in the government's brief supported that conclusion, the majority ruled, and none of the
examples remotely indicated that the President may pre-empt state law.[32]
The government had also claimed that the Memorandum was an exercise of the President's authority to
resolve international claims under his executive authority. The Court recognized that this was a longstanding practice "never-before questioned."[33] But relying on Dames & Moore v. Regan, 453 U.S. 654
(1981), the Court observed that "[p]ast practice does not, by itself, create power."[33] Prior uses of executive
authority to settle international disputes all occurred in narrow circumstances, and did not involve the
complete setting aside of state law, as the defendant sought in the present case.[34]
Finally, Medelln argued that the President's Memorandum was a valid exercise of presidential power based
on the president's authority to "take Care that the Laws be faithfully executed", as granted in the Article II,
3 of the United States Constitution. The majority observed that the government refused to rely on Article
II, 3, which undercut Medelln's claim. Justice Roberts then concluded that, since the ICJ's decision in
Avena was not domestic law, the "take care" clause did not apply.[35]
The judgment of the Texas Court of Criminal Appeals was affirmed.
79
Justice John Paul Stevens concurrence

Justice John Paul Stevens concurred with the majority, but in his concurring opinion he stated that even
though he concurs with the result of majority he thinks "this case presents a closer question than the Court's
opinion allows." He concludes that the Supreme Court cannot enforce the I.C.J. opinion in Avena. To
support that conclusion he maintains that "terms of the United Nations Charter do not necessarily
incorporate international judgments into domestic law."
Dissent
Justice Breyer wrote in the dissent that in his view, the ICJ treaty was "self-executing", based on a reading
of other treaties that had gone into effect without additional Congressional action; and therefore, he wrote,
"I believe the treaty obligations, and hence the judgment [of the ICJ], resting as it does upon the consent of
the United States to the ICJ's jurisdiction, bind the courts no less than would 'an act of the [federal]
legislature.'"
One similar example Breyer cited was the 1796 case Ware v. Hylton, which, Breyer wrote, was illustrative
of what "the Founders meant when they wrote [in the Supremacy Clause of the United States Constitution]
that 'all Treaties ... shall be the supreme Law of the Land.'" In Ware v. Hylton, the Supreme Court had
agreed with a British creditor that a provision of the Treaty of Paris of 1783, which had been ratified by the
United States's Congress of the Confederation, overruled a Virginia state law regarding the repayment of
debts to Britons; and, as the treaty was "addressed to the Judicial Branch", Congress had not had to enact a
domestic law enforcing the treaty provision.
Execution
Medelln was executed at 9:57pm on August 5, 2008 after his lastminute appeals were rejected by the Supreme Court.[36] Governor
Rick Perry rejected calls from Mexico and Washington, D.C. to
delay the execution, citing the torture, rape and strangulation of two
teenage girls in Houston 15 years before as just cause for the death
penalty.[37]
See also
Huntsville Unit, the site of executions
in the State of Texas
References
1.
2.
3.
4.
5.
6.
Medelln v. Texas, 552 U.S. 491 (2008) (No. 06-984).

United Nations Charter, 59 Stat. 1051, T.S. No. 993 (1945).
Statute of the International Court of Justice, 59 Stat. 1055, T.S. No. 993 (1945).
Medelln v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 4.
Vienna Convention on Consular Relations, 21 U.S.T. 77, T.I.A.S. No. 6820 (1970).
Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention, 21 U.S.T. 325,
80
T.I.A.S. No. 6820 (1970).
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
T.I.A.S. No. 6820 (1970).

Article I, Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention, cited
in Medelln v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 3.
U.S. Department of State Letter and Statement Concerning Termination of Acceptance of ICJ Compulsory
Jurisdiction, October 7, 1985, cited in Medelln v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 4.
David Stout, "Justices Rule Against Bush on Death Penalty Case," The New York Times, March 25, 2008.
(http://www.nytimes.com/2008/03/25/washington/25cnd-texas.html)
Mark Sherman, "Court Backs Texas in Dispute With Bush," Associated Press, March 25, 2008.
(http://ap.google.com/article/ALeqM5i0V7A97KgoY8Goz9la5CWe8bm7ewD8VKM7300)
Allen Turner, "Medellin executed for rape, murder of Houston teens," Houston Chronicle, August 6, 2008.
(http://www.chron.com/disp/story.mpl/metropolitan/5924476.html)
Medelln v. State, No. 71,997 (Tex. Crim. App., May 16, 1997); Medelln v. Texas, 552 U.S. 491 (2008) (No. 06984), p. 5-6.
Medelln v. Cockrell, Civ. Action No. H014078 (SD Tex., June 26, 2003).
In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I.C.J. 12 (Judgment of March
31).
Medelln v. Dretke, 371 F. 3d 270 (2004).
"Letter from Condoleezza Rice, Secretary of State, to Kofi A. Annan, Secretary-General of the United Nations"
(http://www.state.gov/documents/organization/87288.pdf) (PDF). Retrieved 24 January 2012. cited in Medelln v.
Texas, 552 U.S. 491 (2008) (No. 06-984), p. 4.
Charles Lane, "U.S. Quits Pact Used in Capital Cases," The Washington Post, March 9, 2005.
(http://www.washingtonpost.com/wp-dyn/articles/A21981-2005Mar9.html)
Medelln v. Dretke, 544 U.S. 660 (2005) (per curiam) (Medelln I).
Memorandum to the Attorney General, February 28, 2005, cited in Medelln v. Texas, 552 U.S. 491 (2008) (No.
06-984), p. 7.
Ex parte Medelln, 223 S.W. 3d 315 (Tex. Crim. App. 2006).
Medelln v. Texas, 550 U. S. ___ (2007) (Medelln II).
Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006).
Medelln v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 13, 21.
Medelln v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 28, quoting Youngstown Sheet & Tube Co. v. Sawyer,
343 U. S. 579, at 582.
Medelln v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 34-35.
Medelln v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 36, quoting Dames & Moore v. Regan, 453 U.S. 654
(1981), at 686.
Supreme Court of the United States (2008-08-05). "Jose Ernesto Medellin v. Texas (Per Curiam)"
(http://www.scotusblog.com/wp/wp-content/uploads/2008/08/medellin-opinion-8-5-08.pdf) (PDF). SCOTUSblog.
McKinley, James C., Jr. (2008-08-06). "Texas Executes Mexican Despite Objections"
(http://www.nytimes.com/2008/08/06/us/06execute.html). New York Times.
Further reading
Geslison, Benjamin A. (2009). "Treaties, Execution, and Originalism in Medelln v. Texas, 128 S. Ct.
1346 (2008)" (http://www.harvard-jlpp.com/wp-content/uploads/2009/03/geslison_final.pdf)
(PDF).
81
Harvard Journal of Law & Public Policy 32 (2): 767.

McGuinness, Margaret E. (2008). "Three Narratives of Medelln v. Texas". Suffolk Transnational Law
Review 31 (2): 227. ISSN1072-8546 (https://www.worldcat.org/issn/1072-8546).
Charnovitz, Steve (July 2008). "Revitalizing the U.S. Compliance Power". American Journal of
International Law (The American Journal of International Law, Vol. 102, No. 3) 102 (3): 551562.
doi:10.2307/20456643 (https://dx.doi.org/10.2307%2F20456643). JSTOR20456643
(https://www.jstor.org/stable/20456643).
Turner, James A. (February 2010). "The Post-Medellin Case for Legislative Standing."
(http://digitalcommons.wcl.american.edu/stusch_lawrev/20/). American University Law Review 59
(3): 732779.
External links
Slip opinion of the case on the U.S. Supreme Court Web site
Retrieved from "http://en.wikipedia.org/w/index.php?title=Medelln_v._Texas&oldid=645401767"
Categories: United States Supreme Court cases United States federalism case law
United States Treaty Clause case law 2008 in United States case law MexicoUnited States relations
International Court of Justice cases Capital punishment in Texas
United States Supreme Court cases of the Roberts Court
82
Neutrality Act of 1794

The Neutrality Act of 1794 makes it illegal for an American to wage war against any country at peace with
the United States.
The Act declares in part:[1]
If any person shall within the territory or jurisdiction of the United States begin or set on
foot or provide or prepare the means for any military expedition or enterprise...against the
territory or dominions of any foreign prince or state of whom the United States was at peace
that person would be guilty of a misdemeanour
The act also forbids foreign war vessels to outfit in American waters and sets a three mile territorial limit at
sea.[2]
The act was amended several times and remains in force.
Origins and evolution

One reason for the act was to create a liability for violation of Section 8 of Article One of the United States
Constitution, which reserves to the United States Congress the power to decide to go to war.[3]
The Continental Congress previously had an alliance with France in 1778[4] that France accused the United
States of violating with the 1794 American Jay Treaty with Great Britain. The French Ambassador to the
United States, Edmond-Charles Gent, had been actively recruiting American privateers for attacks on
Spain and Great Britain, with whom the French Republican Government was at war.
Some individuals in America were supporting the French Republican Government by engaging in
privateering[5] and other Americans were engaging in filibuster military operations against British Canada
and Spanish possessions in Florida and South America.
This led to George Washington's Proclamation of Neutrality in 1793 and the act of 1794.
The Act was used in the trials of Aaron Burr, William S. Smith and Etienne Guinet, who, with Frenchman
Jean Baptist LeMaitre, were convicted of outfitting an armed ship to take part in France's war against Great
Britain.[6]
The Act of 1794 was superseded by the Neutrality Act of 1817[7] that included States that had recently
become independent from Spain that were not mentioned in the original act.[8] Unrecognised governments
such as "colonies, districts, or people" are given the same recognition as "states and princes" in the last
clause of section 5.[9] Henry Clay called it "an Act for the benefit of Spain against the republics of
America."[9]
83
The Neutrality Act of 1817 also prescribes maximum penalites of three years imprisonment and up to a
three thousand dollar fine.[10]
The Act was updated again in 1838 during the 1837 Rebellions in Canada.
The Neutrality Act was reenacted and amended several times since, and remains in force as 18 U.S.C. 960
(1976).[11][12]
Recent applications
In 1981, nine men involved in Operation Red Dog were sentenced to three years in prison under the
Neutrality Act; they had planned to overthrow the government of Dominica.[13][14]
In the 2007 Laotian coup d'tat conspiracy allegation, the US government alleged after a sting operation that
a group of conspirators planned to violate the Neutrality Act by overthrowing the government of
Communist Laos.[15] The United States Government has since dropped all charges against these defendants.
In January 2015 two US residents were charged with violating the Neutrality Act for their role in the 2014
Gambian coup d'tat attempt [16]
References
1. Kwakwa, Edward K. (1992). The International Law of Armed Conflict: Personal and Material Fields of
Application. Dordrecht: Martinus Nijhoff Publishers. p.116. ISBN0-7923-1558-8.
2. Kim, Sun Pyo (2004). Maritime Delimitation and Interim Arrangements in North East Asia. Martinus Nijhoff.
p.225. ISBN90-04-13669-X.
3. Boyle, Francis A. (2007). Protesting Power: War, Resistance, and Law. Rowman & Littlefield Publishers, Inc.
p.78. ISBN0-7425-3892-3.
4. Cunliffe, Marcus; Kenneth W. Leish (1968). The American Heritage History of the Presidency. American
Heritage Pub. Co.
5. Benton, Thomas Hart (1857). Abridgment of the Debates of Congress, from 1789 to 1856: Dec. 5. 1796-March 3,
1803. D. Appleton. p.126.
6. U S v. GUINET, 2 U.S. 321 (http://supreme.justia.com/us/2/321/case.html) (U.S. Supreme Court 1795).
7. Evans, Lawrence Boyd (1922). Leading Cases on International Law. Callaghan and Co.
8. Wheaton, Henry; Richard Henry (1866). Elements of International Law. Little, Brown & Company. p.439.
9. Beamis, George (1864). Precedents of American Neutrality. The University of Michigan. p.38.
10. May, Robert E. (2002). Manifest Destiny's Underworld: Filibustering in Antebellum America. University of
North Carolina Press. pp.Chapter 1. ISBN0-8078-2703-7.
11. Jules Lobel (1983), "The Rise and Decline of the Neutrality Act: Sovereignty and Congressional War Powers in
United States Foreign Policy" (http://heinonline.org/HOL/LandingPage?
collection=journals&handle=hein.journals/hilj24&div=4&id=&page=), Harvard International Law Journal 24
12. 18 U.S.C. 960 (http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000960----000-.html)
13. "2 Guilty in New Orleans for Plot on Dominica Invasion" (http://www.nytimes.com/1981/06/21/us/2-guilty-innew-orleans-for-plot-on-dominica-invasion.html), The New York Times, June 21, 1981
14. "Klansmen Get 3-year Terms", Boston Globe, July 23, 1981
15. Weiner, Tim (2008-05-11). "Gen. Vang Paos Last War" (http://www.nytimes.com/2008/05/11/magazine/11paot.html). The New York Times Magazine.
16. http://www.justice.gov/opa/pr/two-defendants-charged-their-role-attempted-coup-gambia
84
Retrieved from "http://en.wikipedia.org/w/index.php?title=Neutrality_Act_of_1794&oldid=660919933"

Categories: United States foreign relations legislation Legal history of the United States
85
Nicaragua v. United States

The Republic of Nicaragua v. The United States of

America (1986) ICJ 1
(http://www.worldlii.org/int/cases/ICJ/1986/1.html) is a
public international law case decided by the International
Court of Justice (ICJ). The ICJ ruled in favor of
Nicaragua and against the United States and awarded
reparations to Nicaragua. The ICJ held that the U.S. had
violated international law by supporting the Contras in
their rebellion against the Nicaraguan government and by
mining Nicaragua's harbors. The United States refused to
participate in the proceedings after the Court rejected its
argument that the ICJ lacked jurisdiction to hear the case.
The U.S. later blocked enforcement of the judgment by
the United Nations Security Council and thereby
prevented Nicaragua from obtaining any actual
compensation.[2] The Nicaraguan government finally
withdrew the complaint from the court in September 1992
(under the later, post-FSLN, government of Violeta
Chamorro), following a repeal of the law requiring the
country to seek compensation.[3]
The Court found in its verdict that the United States was
"in breach of its obligations under customary
international law not to use force against another State",
"not to intervene in its affairs", "not to violate its
sovereignty", "not to interrupt peaceful maritime
commerce", and "in breach of its obligations under
Article XIX of the Treaty of Friendship, Commerce and
Navigation between the Parties signed at Managua on 21
January 1956."
The Court had 16 final decisions upon which it voted. In
Statement 9, the Court stated that while the U.S.
encouraged human rights violations by the Contras by the
manual entitled Psychological Operations in Guerrilla
Warfare, this did not, however, make such acts
Nicaragua v. United States
Court
Full case
name
International Court of Justice

Case Concerning the Military and
Paramilitary Activities in and Against
Nicaragua (Nicaragua v. United States
of America)[1]
Decided
June27,1986
Citation(s) 1986 I.C.J. 14
Case opinions
Separate Opinion: Nagendra Singh
Separate Opinion: Manfred Lachs
Separate Opinion: Jos Mara Ruda
Separate Opinion: Taslim Olawale Elias
Separate Opinion: Roberto Ago
Separate Opinion: Jos Sette-Camara
Separate Opinion: Ni Zhengyu
Judges
sitting
attributable to the U.S.[4]
Contents
1 Background and History of US Intervention in Nicaragua
1.1 Nicaragua's submissions
86
2 Judgment
Dissent: Shigeru Oda

Dissent: Stephen Schwebel
Dissent: Robert Jennings
Court membership
Nagendra Singh, Guy Ledreit de
Lacharrire, Roberto Ago, Mohammed
Bedjaoui, Taslim Olawale Elias,
Manfred Lachs, Kba Mbaye, Ni
Zhengyu, Shigeru Oda, Jos Mara
Ruda, Stephen Schwebel, Jos SetteCamara, Robert Jennings, ClaudeAlbert Colliard (ad hoc)
2 Judgment
2.1 Findings
2.2 The ruling
2.3 Legal clarification and importance
2.4 How the judges voted
2.5 Dissent
3 Certain witnesses against the US
3.1 First witness: Commander Luis Carrion
3.2 Second witness: Dr. David MacMichael
3.3 Third witness: Professor Michael Glennon
3.4 Fourth witness: Father Jean Loison
3.5 Fifth witness: William Hper
4 UN voting
5 U.S. defense and response
6 Significance
6.1 Third-party interpretations
7 See also
8 Notes
9 References
10 External links
Background and History of US Intervention in Nicaragua

The first armed intervention by the United States in Nicaragua occurred under President Taft. In 1909, he
ordered the overthrow of Nicaraguan President Jos Santos Zelaya. During August and September 1912, a
contingent of 2300 U.S. Marines landed at the port of Corinto and occupied Len and the railway line to
Granada. A pro-U.S. government was formed under the occupation. The 1914 Bryan-Chamorro Treaty
granted perpetual canal rights to the U.S. in Nicaragua and was signed ten days before the U.S.-operated
Panama Canal opened for use, thus preventing anyone from building a competing canal in Nicaragua
without U.S. permission.[5]
In 1927, under Augusto Csar Sandino, a major peasant uprising was launched against both the U.S.
occupation and the Nicaraguan establishment. In 1933, the Marines withdrew and left the National Guard in
charge of internal security and elections. In 1934, Anastasio Somoza Garca, the head of the National Guard,
ordered his forces to capture and murder Sandino. In 1937, Somoza assumed the presidency, while still in
control of the National Guard, and established a dictatorship that his family controlled until 1979.[6]
The downfall of the regime is attributed to its embezzlement of millions of dollars in foreign aid that was
given to the country in response to the devastating 1972 earthquake. Many moderate supporters of the
dictatorship began abandoning it in the face of growing revolutionary sentiment. The Sandinista (FLSN)
movement organized relief, began to expand its influence and assumed the leadership of the revolution.[7] A
popular uprising brought the FSLN to power in 1979. The United States had long been opposed to the
socialist FSLN, and after the revolution the Carter administration moved quickly to support the Somocistas
with financial and material aid. When Ronald Reagan took office, he augmented the direct support to an
87
anti-Sandinista group, called the Contras, which included factions loyal to the former dictatorship. When
Congress prohibited further funding to the Contras, Reagan continued the funding through arms sales that
were also prohibited by Congress.[8]
Nicaragua's submissions
Nicaragua charged:
(a) That the United States, in recruiting, training, arming, equipping, financing, supplying and
otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and
against Nicaragua, had violated its treaty obligations to Nicaragua under:
Article 2 (4) of the United Nations Charter;
Articles 18 and 20 of the Charter of the Organization of American States;
Article 8 of the Convention on Rights and Duties of States;
Article I, Third, of the Convention concerning the Duties and Rights of States in the Event of
Civil Strife.
(b) That the United States had breached international law by
1. violating the sovereignty of Nicaragua by:
armed attacks against Nicaragua by air, land and sea;
incursions into Nicaraguan territorial waters;
aerial trespass into Nicaraguan airspace;
efforts by direct and indirect means to coerce and intimidate the Government of
Nicaragua.
2. using force and the threat of force against Nicaragua.
3. intervening in the internal affairs of Nicaragua.
4. infringing upon the freedom of the high seas and interrupting peaceful maritime commerce.
5. killing, wounding and kidnapping citizens of Nicaragua.
Nicaragua demanded that all such actions cease and that the United States had an obligation to pay
reparations to the government for damage to their people, property, and economy.
It is noteworthy that the United States, the defaulting party, was the only member that put forward
arguments against the validity of the judgment of the court, arguing that it passed a decision that it "had
neither the jurisdiction nor the competence to render." Members that sided with the United States in
opposing Nicaragua's claims did not challenge the court's jurisdiction, its findings, nor the substantive
merits of the case.[9] Pursuant to general and customary international law, the United States has an
obligation to Nicaragua to respect the sovereignty of Nicaragua. ii. Pursuant to general and customary
international law, the United States has an obligation to Nicaragua not to use force or the threat of force
against Nicaragua. iii. Pursuant to general and customary international law, the United States has an
obligation to Nicaragua not to intervene in the internal affairs of Nicaragua.
Judgment
88
The very long judgment first listed 291 points, among them that the United States had been involved in the
"unlawful use of force." The alleged violations included attacks on Nicaraguan facilities and naval vessels,
the mining of Nicaraguan ports, the invasion of Nicaraguan air space, and the training, arming, equipping,
financing and supplying of forces (the "Contras") and seeking to overthrow Nicaragua's Sandinista
government. This was followed by the statements that the judges voted on.[10]
Findings
The court found evidence of an arms flow between Nicaragua and insurgents in El Salvador between 197981. However, there was not enough evidence to show that the Nicaraguan government was imputable for
this or that the US response was proportional. The court also found that certain transborder incursions into
the territory of Guatemala and Costa Rica, in 1982, 1983 and 1984, were imputable to the Government of
Nicaragua. However, neither Guatemala nor Costa Rica had made any request for US intervention; El
Salvador did in 1984, well after the US had intervened unilaterally.[1]
(http://www.gwu.edu/~jaysmith/nicus3.html)
"As regards El Salvador, the Court considers that in customary international law the provision of arms to the
opposition in another State does not constitute an armed attack on that State. As regards Honduras and Costa
Rica, the Court states that, in the absence of sufficient information as to the transborder incursions into the
territory of those two States from Nicaragua, it is difficult to decide whether they amount, singly or
collectively, to an armed attack by Nicaragua. The Court finds that neither these incursions nor the alleged
supply of arms may be relied on as justifying the exercise of the right of collective self-defence."[11]
Regarding human rights violations by the Contras, "The Court has to determine whether the relationship of
the contras to the United States Government was such that it would be right to equate the Contras, for legal
purposes, with an organ of the United States Government, or as acting on behalf of that Government. The
Court considers that the evidence available to it is insufficient to demonstrate the total dependence of the
contras on United States aid. A partial dependency, the exact extent of which the Court cannot establish,
may be inferred from the fact that the leaders were selected by the United States, and from other factors
such as the organisation, training and equipping of the force, planning of operations, the choosing of targets
and the operational support provided. There is no clear evidence that the United States actually exercised
such a degree of control as to justify treating the contras as acting on its behalf... Having reached the above
conclusion, the Court takes the view that the Contras remain responsible for their acts, in particular the
alleged violations by them of humanitarian law. For the United States to be legally responsible, it would
have to be proved that that State had effective control of the operations in the course of which the alleged
violations were committed."[11]
The Court concluded that the United States, despite its objections, was subject to the Court's jurisdiction.
The Court had ruled on 26 November by 11 votes to one that it had jurisdiction in the case on the basis of
either Article 36 (i.e. compulsory jurisdiction) or the 1956 Treaty of Friendship, Commerce and Navigation
between the United States and Nicaragua. The Charter provides that, in case of doubt, it is for the Court
itself to decide whether it has jurisdiction, and that each member of the United Nations undertakes to
comply with the decision of the Court. The Court also ruled by unanimity that the present case was
admissible.[9] The United States then announced that it had "decided not to participate in further
proceedings in this case." About a year after the Court's jurisdictional decision, the United States took the
further, radical step of withdrawing its consent to the Court's compulsory jurisdiction, ending its previous 40
89
year legal commitment to binding international adjudication. The Declaration of acceptance of the general
compulsory jurisdiction of the International Court of Justice terminated after a 6-month notice of
termination delivered by the Secretary of State to the United Nations on October 7, 1985. [12]
Although the Court called on the United States to "cease and to refrain" from the unlawful use of force
against Nicaragua and stated that the US was "in breach of its obligation under customary international law
not to use force against another state" and ordered it to pay reparations, the United States refused to comply.
[2] (http://www.redress.org/publications/TerrorismReport.pdf) As a permanent member of the Security
Council, the U.S. has been able to block any enforcement mechanism attempted by Nicaragua.[13] On
November 3, 1986 the United Nations General Assembly passed, by a vote of 94-3 (El Salvador, Israel and
the US voted against), a non-binding resolution (http://www.un.org/documents/ga/res/41/a41r031.htm)
urging the US to comply.[3] (http://www.ejil.org/journal/Vol6/No4/art2-01.html)
The ruling
On June 27, 1986, the Court made the following ruling:
The Court
1. Decides that in adjudicating the dispute brought before it by the Application filed by the Republic of
Nicaragua on 9 April 1984, the Court is required to apply the "multilateral treaty
reservation"contained in proviso (c) to the declaration of acceptance of jurisdiction made under
Article 36, paragraph 2, of the Statute of the Court by the Government of the United States of
America deposited on 26 August 1946;
2. Rejects the justification of collective self-defence maintained by the United States of America in
connection with the military and paramilitary activities in and against Nicaragua the subject of this
case;
3. Decides that the United States of America, by training, arming, equipping, financing and supplying
the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities
in and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligation
under customary international law not to intervene in the affairs of another State;
4. Decides that the United States of America, by certain attacks on Nicaraguan territory in 1983-1984,
namely attacks on Puerto Sandino on 13 September and 14 October 1983, an attack on Corinto on 10
October 1983; an attack on Potosi Naval Base on 4/5 January 1984, an attack on San Juan del Sur on
7 March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March 1984; and an attack on
San Juan del Norte on 9 April 1984; and further by those acts of intervention referred to in
subparagraph (3) hereof which involve the use of force, has acted, against the Republic of Nicaragua,
in breach of its obligation under customary international law not to use force against another
State;
5. Decides that the United States of America, by directing or authorizing over Rights of Nicaraguan
territory, and by the acts imputable to the United States referred to in subparagraph (4) hereof, has
acted, against the Republic of Nicaragua, in breach of its obligation under customary international
law not to violate the sovereignty of another State;
6. Decides that, by laying mines in the internal or territorial waters of the Republic of Nicaragua during
the first months of 1984, the United States of America has acted, against the Republic of Nicaragua,
in breach of its obligations under customary international law not to use force against another
State, not to intervene in its affairs, not to violate its sovereignty and not to interrupt peaceful
maritime commerce;
7. Decides that, by the acts referred to in subparagraph (6) hereof the United States of America has
90
8.
9.
10.
11.
12.
13.
14.
15.
16.
acted, against the Republic of Nicaragua, in breach of its obligations under Article XIX of the Treaty
of Friendship, Commerce and Navigation between the United States of America and the Republic of
Nicaragua signed at Managua on 21 January 1956;
Decides that the United States of America, by failing to make known the existence and location of the
mines laid by it, referred to in subparagraph (6) hereof, has acted in breach of its obligations under
customary international law in this respect;
Finds that the United States of America, by producing in 1983 a manual entitled 'Operaciones
sicolgicas en guerra de guerrillas', and disseminating it to contra forces, has encouraged the
commission by them of acts contrary to general principles of humanitarian law; but does not find a
basis for concluding that any such acts which may have been committed are imputable to the United
States of America as acts of the United States of America;
Decides that the United States of America, by the attacks on Nicaraguan territory referred to in
subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985,
has committed acts calculated to deprive of its object and purpose the Treaty of Friendship,
Commerce and Navigation between the Parties signed at Managua on 21 January 1956;
Decides that the United States of America, by the attacks on Nicaraguan territory referred to in
subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985,
has acted in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and
Navigation between the Parties signed at Managua on 21 January 1956;
Decides that the United States of America is under a duty immediately to cease and to refrain from all
such acts as may constitute breaches of the foregoing legal obligations;
Decides that the United States of America is under an obligation to make reparation to the Republic of
Nicaragua for all injury caused to Nicaragua by the breaches of obligations under customary
international law enumerated above;
Decides that the United States of America is under an obligation to make reparation to the Republic of
Nicaragua for all injury caused to Nicaragua by the breaches of the Treaty of Friendship, Commerce
and Navigation between the Parties signed at Managua on 21 January 1956;
Decides that the form and amount of such reparation, failing agreement between the Parties, will be
settled by the Court, and reserves for this purpose the subsequent procedure in the case;
Recalls to both Parties their obligation to seek a solution to their disputes by peaceful means in
accordance with international law.[11]
Legal clarification and importance

The ruling did in many ways clarify issues surrounding prohibition of the use of force and the right of selfdefence.[14] Arming and training the Contra was found to be in breach with principles of non-intervention
and prohibition of use of force, as was laying mines in Nicaraguan territorial waters.
Nicaragua's dealings with the armed opposition in El Salvador, although it might be considered a breach
with the principle of non-intervention and the prohibition of use of force, did not constitute "an armed
attack", which is the wording in article 51 justifying the right of self-defence.
The Court considered also the United States claim to be acting in collective self-defence of El Salvador and
found the conditions for this not reached as El Salvador never requested the assistance of the United States
on the grounds of self-defence.
In regards to laying mines, "...the laying of mines in the waters of another State without any warning or
notification is not only an unlawful act but also a breach of the principles of humanitarian law underlying
the Hague Convention No. VIII of 1907."
91
How the judges voted

Votes of Judges - Nicaragua v. United States
Operative Paragraph (https://web.archive.org/web/20060818212237/http://www.icjcij.org/icjwww/icases/inus/inus_isummaries/inus_isummary_19860627.htm)
Judge
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
President Nagendra Singh
Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
(India)
Vice-President de
Lacharrire (France)
Judge Ago (Italy)
Judge Elias (Nigeria)

Judge Lachs (Poland)
No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
Judge Mbaye (Senegal)

Judge Ni (People's
Republic of China)
No
Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
Judge Oda (Japan)
Yes
No
No
No
No
No
Yes
No
No
No
No
No
Judge Ruda (Argentina)

Judge Schwebel (United
States)
No
No Yes Yes Yes

Yes
No
No
No
No
No
No
Yes Yes
No
No
No
Judge Sette-Camara
(Brazil)
No
Judge Sir Robert

Jennings (United
Kingdom)
Yes
No
Judge ad hoc Colliard

(France)
No
No
No
No
Yes Yes Yes
No
No
No
No
No
No
No
Yes
Yes Yes Yes
Dissent
Judge Schwebels dissent was twice as long as the actual judgment. Judge Schwebel argued that the
Sandinista government came to power with support of foreign intervention similar to what it was now
complaining about. He argued that the Sandinista government achieved international recognition and
received large amounts of foreign aid in exchange for commitments they subsequently violated. He cited
evidence that the Sandinista government had indeed supported the rebels in El Salvador and noted that
Nicaraguas own CIA witness contradicted their assertions that they had never at any point supported the
rebels in El Salvador. The CIA witness said that there was no evidence of weapon shipments since early
1981, but Schwebel argued that he could not credibly explained why opponents of Contra aid such as
congressman Boland, who also saw the evidence, believed that weapon shipments were ongoing. He further
argued that Daniel Ortega publicly admitted such shipments in statements in 1985 and 1986. Furthermore,
there was no dispute that the leadership of the rebels operated in Nicaragua from time to time.
He stated that in August 1981 the U.S. offered to resume aid to Nicaragua and to not support regime change
in exchange for Nicaraguan commitments to not support the rebels in El Salvador. These proposals were
rejected by the Sandinistas, and judge Schwebel argued that the U.S. was entitled to take action in collective
self-defense with El Salvador by authorizing contra aid in December 1981. He stated that further U.S.
proposals to resolve the issue made in early 1982 were also ignored by the Sandinistas. The Sandinista
government in 1983 began advancing proposals in which it would undertake not to support the rebels, but
92
Schwebel noted that these were coupled with demands that the U.S. cease supporting the lawful government
of El Salvador. The judge noted that since early 1985 the U.S. had increasingly made regime change a
primary objective but argued this was not inconsistent with self-defense because it was reasonable to believe
that Nicaragua would not maintain any commitments unless Sandinista power was diluted.
The judge said that both sides of the wars in Nicaragua and El Salvador had committed atrocities. He said
the U.S. mining of Nicaraguan harbors was unlawful in regard to third parties, but not Nicaragua.[15]
Certain witnesses against the US

First witness: Commander Luis Carrion
The first witness called by Nicaragua was Nicaragua's first Vice Minister of the Interior, Commander Luis
Carrion. Commander Carrion had overall responsibility for state security and was in charge of all
government operations in the "principal war zone". He was responsible for monitoring United States
involvement in military and paramilitary activities against Nicaragua, directing Nicaragua's military and
intelligence efforts against the contra guerrillas.
Commander Carrion began by explaining the condition of the contras prior to United States' aid in
December 1981. Commander Carrion stated that the contras consisted of insignificant bands of poorly
armed and poorly organized members of Somoza's National Guard, who carried out uncoordinated border
raids and rustled cattle (presumably for food).
In December 1981, the U.S. Congress authorized an initial appropriation of 19 million dollars to finance
paramilitary operations in Nicaragua and elsewhere in Central America. Because of this aid, Commander
Carrion stated that the contras began to become centralized and received both training and weapons from the
CIA. During 1982 the contra guerrillas engaged the Sandinista armed forces in a series of hit and run border
raids and carried out a number of sabotage operations including:
1. the destruction of two key bridges in the northern part of Nicaragua, and
2. the planting of bombs in Nicaraguan civil aircraft in Mexico and in the baggage area of a Nicaraguan
port.
The United States Central Intelligence Agency, and Argentine military officers financed by the CIA, were
engaged in the training of the contra forces. The guerrillas received both basic infantry training as well as
training in specialized sabotage and demolition for "special operation groups".
The U.S. Congress apportioned new funds for the contras to the amount of $30 million at the end of 1982.
This made it possible for the contra forces to launch a military offensive against Nicaragua. According to
Commander Carrion, the offensive known as "C Plan" had the objective of capturing the Nicaraguan border
town of Jalapa in order to install a provisional government, which could receive international recognition.
This plan failed.
After the failure of the Jalapa offensive the contras changed their tactics from frontal assaults to economic
warfare against State farms, coffee plantations, grain storage centers, road junctions, etc.
93
The CIA began to support the contras by setting up and coordinating a communications and logistical
system. The CIA supplied aircraft and the construction of airfields in the Honduran border area next to
Nicaragua. This allowed the contras to carry out deep penetration raids into the more developed and
populated areas of the Nicaraguan interior. U.S. Army engineers created this airfield. The purpose of these
deep penetration attacks upon economic targets was to weaken the Nicaraguan economy, causing a
shortages of goods.
As a part of its training program for the contras, the CIA prepared and distributed a manual entitled
Psychological Operations in Guerrilla Warfare. This manual included instructions in the "use of implicit and
explicit terror", and in the "selective use of violence for propaganda effects". Commander Carrion explained
that the manual was given to the Contras, "All of these terrorist instructions have the main purpose of
alienating the population from the Government through creating a climate of terror and fear, so that nobody
would dare support the Government". The manual calls for the "neutralization" (i.e. assassination) of
Sandinista local government officials, judges, etc. for purposes of intimidation. It was openly admitted by
the President Reagan in a press conference that the manual had been prepared by a CIA contract employee.
After the United States Congress approved an additional $24 million aid to the contras in December 1983, a
new offensive was launched, named Plan Sierra. This offensive involved approximately 7000 members of
the contra forces. As in earlier attacks, the initial objective of this offensive was to capture the border town
of Jalapa to install a provisional government, which the CIA informed the contras would be immediately
recognized by the United States Government. But this contra offensive was also repulsed by the Nicaraguan
government forces.
In the beginning of 1984, the contras made a major effort to prevent the harvesting of the coffee crop, which
is one of Nicaragua's most important export products. Coffee plantations and state farms where coffee is
grown were attacked, vehicles were destroyed, and coffee farmers were killed.
Commander Carrion testified that the ability of the contras to carry out military operations was completely
dependent upon United States funding, training and logistical support. Carrion stated that the U.S.
Government supplied the contras with uniforms, weapons, communications equipment, intelligence,
training, and coordination in using this material aid.
In September 1983, CIA operatives blew up Nicaragua's only oil pipeline, which was used to transport oil
from off-loading facilities to storage tanks on shore. The United States was also directly involved in a large
scale sabotage operation directed against Nicaragua's oil storage facilities. This last attack was carried out
by CIA contract employees termed by that organization as "Unilaterally Controlled Latin Assets" (UCLAs).
The CIA personnel were also directly involved in a helicopter attack on a Nicaraguan army training camp.
One of the helicopters was shot down by Nicaraguan ground fire resulting in the death of two U.S. citizens.
Commander Carrion testified that the United States was involved in the mining of Nicaragua's ports
between February - April 1984. The mining operation was carried out by CIA ships directing the operation
from international waters, while the actual mining was carried out by CIA employees on board speedboats
operating inshore. After the mine-laying was completed the speedboats returned to the mother vessel.[16][17]
Carrion stated that 3,886 people had been killed and 4,731 wounded in the four years since the contras
began their attacks. Carrion estimated property damage at $375 million.[18]
94
Commander Carrion stated if the United States stopped aid, support and training, this would result in the
end of the contras military activities within three months. Asked why he was so sure of this, Commander
Carrion answered, "Well, because the contras are an artificial force, artificially set up by the United States,
that exists only because it counts on United States direction, on United States training, on United States
assistance, on United States weapons, on United States everything...Without that kind of support and
direction the contras would simply disband, disorganize, and thus lose their military capacity in a very short
time".[16]
Second witness: Dr. David MacMichael

David MacMichael was an expert on counter-insurgency, guerrilla warfare, and Latin American affairs, he
was also a witness because he was closely involved with U.S. intelligence activities as a contract employee
from March 1981 - April 1983. MacMichael worked for Stanford Research Institute, which was contracted
by the U.S. Department of Defense. After this he worked two years for the CIA as a "senior estimates
officer", preparing the National Intelligence Estimate. Dr. MacMichael's responsibility was centered upon
Central America. He had top-secret clearance. He was qualified and authorized to have access to all relevant
U.S. intelligence concerning Central America, including intelligence relating to alleged Nicaraguan support
for, and arms shipments to the anti-Government insurgents in El Salvador. He took part in high level
meetings of the Latin American affairs office of the CIA. Including a fall 1981 meeting, which submitted
the initial plan to set up a 1500-man covert force on the Nicaraguan border, shipping arms from Nicaragua
to the El Salvador insurgents. This plan was approved by President Reagan.[18][19]
"The overall purpose (for the creation of the contras) was to weaken, even destabilize the Nicaraguan
Government and thus reduce the menace it allegedly posed to the United States' interests in Central
America..."
Contra paramilitary actions would "hopefully provoke cross-border attacks by Nicaraguan forces and thus
serve to demonstrate Nicaragua's aggressive nature and possibly call into play the Organization of American
States' provisions (regarding collective self-defense). It was hoped that the Nicaraguan Government would
clamp down on civil liberties within Nicaragua itself, arresting its opposition, so demonstrating its allegedly
inherent totalitarian nature and thus increase domestic dissent within the country, and further that there
would be reaction against United States citizens, particularly against United States diplomatic personnel
within Nicaragua and thus to demonstrate the hostility of Nicaragua towards the United States".
In response to repeated questions as to whether there was any substantial evidence of the supply
of weapons to the guerrilla movement in El Salvador- either directly by the Nicaraguan
Government itself-or with the knowledge, approval or authorization of the Nicaraguan
Government of either non-official Nicaraguan sources, or by third country nationals inside or
outside Nicaragua, using Nicaraguan territory for this purpose, Dr. MacMichael answered that
there was no such evidence. In the opinion of the witness it would not have been possible for
Nicaragua to send arms to the insurgents in El Salvador in significant amounts (as alleged by
the U.S. Government) and over a prolonged period, without this being detected by the U.S.
intelligence network in the area...Counsel for Nicaragua, asked the witness several times
whether any detection of arms shipments by or through Nicaragua had taken place during the
period he was employed by the CIA. (MacMichael) answered repeatedly that there was no such
evidence. He also stated that after his employment had terminated, nothing had occurred that
would cause him to change his opinion. He termed the evidence that had been publicly
95
disclosed by the U.S. Government concerning Nicaraguan arms deliveries to the El Salvadoran
insurgents as both "scanty" and "unreliable". The witness did however state that based on
evidence, which had been gathered immediately prior to his employment with the CIA,
evidence he had already actually seen, there was substantial evidence that arms shipments were
reaching El Salvador from Nicaragua - with the probable involvement and complicity of the
Nicaraguan Government - through late 1980 up until the spring of 1981....But this evidence,
which most importantly had included actual seizures of weapons, which could be traced to
Nicaragua, as well as documentary evidence and other sources, had completely ceased by early
1981. Since then, no evidence linking Nicaragua to shipments of arms in any substantial
quantities had resumed coming in.[19]
Third witness: Professor Michael Glennon

Mr. Glennon testified about a fact-finding mission he had conducted in Nicaragua to investigate alleged
human rights violations committed by the contra guerrillas, sponsored by the International Human Rights
Law Group, and the Washington Office on Latin America. Glennon conducted the investigation with Mr.
Donald T. Fox who is a New York attorney and a member of the International Commission of Jurists.
They traveled to Nicaragua, visiting the northern region where the majority of contra military operations
took place. The two lawyers interviewed around 36 northern frontier residents who had direct experience
with the contras. They also spoke with the U.S. Ambassador to Nicaragua, and with senior officials of the
U.S. Department of State in Washington after returning to the United States.
No hearsay evidence was accepted. Professor Glennon stated that those interviewed were closely questioned
and their evidence was carefully cross-checked with available documentary evidence. Doubtful
"testimonies" were rejected, and the results were published in April 1985. The conclusions of the report
were summarized by Glennon in Court:
"We found that there is substantial credible evidence that the contras were engaged with some
frequency in acts of terroristic violence directed at Nicaraguan civilians. These are individuals
who have no connection with the war effort-persons with no economic, political or military
significance. These are Individuals who are not caught in the cross-fire between Government
and contra forces, but rather individuals who are deliberately targeted by the contras for acts of
terror. "Terror" was used in the same sense as in recently enacted United States law, i.e. "an
activity that involves a violent act or an act dangerous to human life that Is a violation or the
criminal law, and appears to be intended to intimidate or coerce a civilian population, to
Influence the policy of a government by intimidation or coercion, or to affect the conduct of a
government by assassination or kidnapping".
In talks with U.S. State Department officials, at those in Managua U.S. Embassy, and with officials in
Washington, Professor Glennon had inquired whether the U.S. Government had ever investigated human
rights abuses by the contras. Professor Glennon testified that no such investigation had ever been conducted,
because in the words of a ranking State Department official who he could not name, the U.S. Government
96
maintained a policy of "intentional ignorance" on the matter. State Department officials in Washington- had
admitted to Glennon that "it was clear that the level of atrocities was enormous". Those words "enormous"
and "atrocities" were the ranking State Department official's words.[20]
Fourth witness: Father Jean Loison

Father Jean Loison was a French priest who worked as a nurse in a hospital in the northern frontier region
close to Honduras.
Asked whether the contras engaged in acts of violence directed against the civilian population, Father
Loison answered:
"Yes, I could give you several examples. Near Quilali, at about 30 kilometers east of Quilali,
there was a little village called El Coco. The contras arrived, they devastated it, they destroyed
and burned everything. They arrived in front of a little house and turned their machinegun fire
on it, without bothering to check if there were any people inside. Two children, who had taken
fright and hidden under a bed, were hit. I could say the same thing of a man and woman who
were hit, this was in the little co-operative of Sacadias Olivas. It was just the same. They too
had taken fright and got into bed. Unlike El Coco, the contras had just been on the attack, they
had encountered resistance and were now in flight. During their flight they went into a house,
and seeing that there were people there, they threw grenade. The man and the woman were
killed and one of the children was injured."
About contra kidnappings:
"I would say that kidnappings are one of the reasons why some of the peasants have formed
themselves into groups. Here (indicates a point on the map) is Quilali. Between Quilali and
Uilili, in this region to the north, there are hardly any peasants left of any age to bear arms,
because they have all been carried off"."
Father Loison described many examples of violence, mostly indiscriminate, directed at the civilian
population in the region where he resides. The picture that emerges from his testimony is that the contras
engage in brutal violation of minimum standards of humanity. He described murders of unarmed civilians,
including women and children, rape followed in many instances by torture or murder, and indiscriminate
terror designed to coerce the civilian population. His testimony was similar to various reports including the
International Human Rights Law Group, Amnesty International, and others.[21]
Fifth witness: William Hper

William Hper was Nicaragua's Minister of Finance. He testified about Nicaragua economic damage,
including the loss of fuel as a result of the attack in the oil storage facilities at Corinto, the damage to
Nicaragua's commerce as a result of the mining of its ports, and other economic damage.[22]
UN voting
97
After five vetoes in the Security Council between 1982 and 1985 of resolutions concerning the situation in
Nicaragua [4] (http://www.globalpolicy.org/security/membship/veto/vetosubj.htm), the United States made
one final veto on 28 October 1986[23] (France, Thailand, and United Kingdom abstaining) of a resolution
calling for full and immediate compliance with the judgment.[24]
Nicaragua brought the matter to the U.N. Security Council, where the United States vetoed a resolution (11
to 1, 3 abstentions) calling on all states to observe international law. Nicaragua also turned to the General
Assembly, which passed a resolution 94 to 3 calling for compliance with the World Court ruling. Two
states, Israel and El Salvador, joined the United States in opposition. At that time, El Salvador was receiving
substantial funding and military advisement from the U.S., which was aiming to crush a Sandinista-like
revolutionary movement by the FMLN. At the same session, Nicaragua called upon the U.N. to send an
independent fact-finding mission to the border to secure international monitoring of the borders after a
conflict there; the proposal was rejected by Honduras with U.S. backing. A year later, on November 12,
1987, the General Assembly again called for "full and immediate compliance" with the World Court
decision. This time only Israel joined the United States in opposing adherence to the ruling.[25][26]
U.S. defense and response

The United States refused to participate in the merits phase of the proceedings, but the Court found that the
US refusal did not prevent it from deciding the case. The Court also rejected the United States defense that
its action constituted collective self-defense. The United States argued that the Court did not have
jurisdiction, with U.S. ambassador to the United Nations Jeane Kirkpatrick dismissing the Court as a "semilegal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don't." [27]
The United States had signed the treaty accepting the Court's decision as binding, but with the exception
that the court would not have the power to hear cases based on multilateral treaty obligations unless it
involved all parties to the treaty affected by that decision or the United States specially agreed to
jurisdiction. The court found that it was obliged to apply this exception and refused to take on claims by
Nicaragua based on the United Nations Charter and Organization of American States charter, but concluded
that it could still decide the case based on customary international law obligations with 11-4 majority.
After five vetoes in the Security Council between 1982 and 1985 of resolutions concerning the situation in
Nicaragua [5] (http://www.globalpolicy.org/security/membship/veto/vetosubj.htm), the United States made
one final veto on 28 October 1986[23] (France, Thailand, and United Kingdom abstaining) of a resolution
calling for full and immediate compliance with the Judgement.[24]
When the same resolution was brought before the United Nations General Assembly on 3 November it was
passed.[25] Only El Salvador and Israel voted with the U.S. against it. El Salvador's ruling junta was at that
time receiving substantial funding and military advisement from the U.S., which was aiming to crush a
Sandinista-like revolutionary movement by the FMLN. In spite of this resolution, the U.S. still chose not to
pay the fine.
Significance
Third-party interpretations
98
Professor of International Law, Anthony D'Amato, writing for the American Journal of International Law,
Vol. 80, 1986, commented on this case, stating that "...law would collapse if defendants could only be sued
when they agreed to be sued, and the proper measurement of that collapse would be not just the drastically
diminished number of cases but also the necessary restructuring of a vast system of legal transactions and
relations predicated on the availability of courts as a last resort. There would be talk of a return to the law of
the jungle." The author also notes that the case resulted in an unusual candor. A month after the announced
withdrawal, Secretary of State Shultz suggested, and President Reagan later confirmed in a press
conference, that the goal of U.S. policy was to overthrow the Sandinista Government of Nicaragua (see
N.Y. Times, Feb. 22, 1985, at A10, cols. 1, 3). Although this was what Nicaragua had alleged to be the U.S.
goal, while the case was actively pending, the United States could not concede that goal without serious risk
of undermining its litigating position.[6] (http://anthonydamato.law.northwestern.edu/Adobefiles/A85dnicar.pdf)
See also
Iran-Contra Affair
List of International Court of Justice cases
Psychological Operations in Guerrilla Warfare
Notes
1. Official name: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986.
2. Morrison, Fred L. (January 1987). "Legal Issues in The Nicaragua Opinion"
(http://bailey83221.livejournal.com/55750.html). American Journal of International Law 81 (1): 160166.
(https://www.jstor.org/stable/2202146). "Appraisals of the ICJ's Decision. Nicaragua vs United State (Merits)"
3. "Human Rights Watch World Report 1993 - Nicaragua"
(http://www.unhcr.org/refworld/publisher,HRW,,NIC,467fca491e,0.html). Retrieved September 18, 2009.
4. "Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits,
Judgment, I.C.J. Reports 1986, p. 14." (http://www.gwu.edu/~jaysmith/nicus3.html). International Court of
Justice. Retrieved 2006-09-05.
"Summary of the Judgment of 27 June 1986" (http://www.icj-cij.org/docket/index.php?
sum=367&code=nus&p1=3&p2=3&case=70&k=66&p3=5). International Court of Justice. Retrieved
2006-09-05.
5. Walter, Knut (1993). The Regime of Anastasio Somoza, 1936-1956. The University of North Carolina Press.
pp.1012. ISBN0-8078-2106-3.
6. Walker, Thomas W. (2003). Nicaragua: Living in the Shadow of the Eagle, 4th Edition. Westview Press. pp.25
27. ISBN0-8133-4033-0.
7. Zimmerman, Matilde (2000). Sandinista: Carlos Fonseca and the Nicaraguan Revolution. Duke University
Press. pp.173, 209210. ISBN0-8223-2595-0.
8. Dent, David W. (2005). Historical Dictionary of US-Latin American Relations. Greenwood Press. p.129.
ISBN0-313-32196-5.
9. "United States Decides Not to Participate in World Court Case Initiated by Nicaragua". UN Chronicle 22
(January). January 1985.
10. {broken link}"International Court of Justice Year 1986, 27 June 1986, General list No. 70, paragraphs 251, 252,
157, 158, 233." (http://www.gwu.edu/~jaysmith/nicus3.html). International Court of Justice. Retrieved
2006-07-30. Large PDF file from the ICJ website (http://web.archive.org/web/20050530111816/http://www.icjcij.org/icjwww/icases/inus/inus_ijudgment/inus_ijudgment_19860627.pdf)
11. ICJ Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)
99
(http://www.icj-cij.org/docket/index.php?sum=367&code=nus&p1=3&p2=3&case=70&k=66&p3=5)
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
(http://www.icj-cij.org/docket/index.php?sum=367&code=nus&p1=3&p2=3&case=70&k=66&p3=5)
Robert J. Delahunty, John Yoo (2006). "Executive Power V. International Law". Harvard Journal of Law &
Public Policy 30.
Constanze Schulte (January 2004). COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF
JUSTICE 81. New York: Oxford University Press. pp.282285. ISBN0-19-927672-2.
UN Charter art.2(4) and art. 51, both considered to be customary international law
Dissent of Judge Schwebel (http://www.icj-cij.org/docket/files/70/6523.pdf) International Court of Justice
Gill, Terry D. (1989). Litigation strategy at the International Court a case study of the Nicaragua v United States
dispute. Dordrecht. ISBN0-7923-0332-6. p. 187-191
"Nicaragua Mining: Self-defense or Terrorism?;Recovery: Is It Reagan's?;Ancestors -- Fifty-Three Fossils
Transcript #2229". The MacNeil/Lehrer NewsHour. April 12, 1984. Senator Barry Goldwater said he was told in
a letter from CIA Director William Casey that President Reagan himself had approved the mining in writing.
This was confirmed by Secretary Dam on the MacNeil/Lehrer NewsHour: "Well, let me put it this way. All
covert action programs are approved by the President or they don't go forward."
"World Court Hears Charges vs. U.S". Facts on File World News Digest: 702 D1. September 20, 1985.
Gill, p. 191-193
Gill, p. 193-195.
Gill, p. 195.
Gill, p. 195-196.
United Nations Security Council Verbatim Report 2718. S/PV.2718 (http://www.un.org/ga/search/view_doc.asp?
symbol=S/PV.2718) page 40. 28 October 1986. Retrieved 2007-09-19.
United Nations Security Council Document S/18428 (http://www.un.org/ga/search/view_doc.asp?
symbol=S/18428) 28 October 1986. Retrieved 2007-09-19.
United Nations General Assembly Session 41 Resolution 31. A/RES/41/31
(http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/41/31) 3 November 1986. Retrieved 2007-09-19.
Noam Chomsky (1989). "4". Necessary Illusions, Adjuncts of Government. New York: Oxford University Press.
"International Law PSCI 0236 > International Law PSCI 0236 > Introduction"
(https://segue.middlebury.edu/index.php?action=site&site=psci0236a-f06). middlebury.edu. Retrieved
2006-09-05.
References
D'Amato, Anthony (1985). "Modifying U.S. Acceptance of the Compulsory Jurisdiction of the World Court"
(http://anthonydamato.law.northwestern.edu/Adobefiles/A85b-modify.pdf) (PDF). American Journal of
International Law 79 (2): 385405. doi:10.2307/2201709 (https://dx.doi.org/10.2307%2F2201709).
JSTOR2201709 (https://www.jstor.org/stable/2201709). [PDF file]
D'Amato, Anthony (1987). "Trashing Customary International Law"
(http://anthonydamato.law.northwestern.edu/Adobefiles/a87a-trashing.pdf) (PDF). American Journal of
International Law 81 (1): 101105. doi:10.2307/2202136 (https://dx.doi.org/10.2307%2F2202136).
JSTOR2202136 (https://www.jstor.org/stable/2202136). "Appraisals of the ICJ's Decision. Nicaragua vs United
State (Merits)" [PDF file]
D'Amato, Anthony (1986). "The United States Should Accept, By a New Declaration, The General Compulsory
Jurisdiction of The World Court" (http://anthonydamato.law.northwestern.edu/Adobefiles/A86a-worldct.pdf)
(PDF). American Journal of International Law 80 (2): 331336. doi:10.2307/2201963
(https://dx.doi.org/10.2307%2F2201963). JSTOR2201963 (https://www.jstor.org/stable/2201963). [PDF file]
Falk, Richard (1987). "The World Court's Achievement" (http://bailey83221.livejournal.com/56750.html).
American Journal of International Law 81 (1): 106112. doi:10.2307/2202137
(https://dx.doi.org/10.2307%2F2202137). JSTOR2202137 (https://www.jstor.org/stable/2202137). "Appraisals
of the ICJ's Decision."
Franck, Thomas M. (1987). "Some Observations on the ICJ's Procedural and Substantive Innovations"
(https://www.jstor.org/stable/2202139). "Appraisals100
of the ICJ's Decision. Nicaragua vs United States (Merits)"
Gill, Terry D. (1989). Litigation strategy at the International Court a case study of the Nicaragua v United States
dispute. Dordrecht. ISBN0-7923-0332-6.
Howard Friel; Richard A. Falk (2004). The Record of the Paper: How the New York Times Misreports US
Foreign Policy. Verso. ISBN1-84467-019-8. p.184.
Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua V. United States of
America). United Nations Publications. January 1, 2000. ISBN92-1-070826-1. |first1= missing |last1= in
Authors list (help)
Maier, Harold G. (January 1987). "Appraisals Of The ICJ's Decision: Nicaragua V. United States (Merits)"
(http://bailey83221.livejournal.com/57749.html). The American Society of International Law 81 (1): 7778.
(https://www.jstor.org/stable/2202132). 81 A.J.I.L. 77
Morrison, Fred L. (January 1987). "Legal Issues in The Nicaragua Opinion"
(https://www.jstor.org/stable/2202146). "Appraisals of the ICJ's Decision. Nicaragua vs United State (Merits)"
Schachter, Oscar (April 1989). "Self-Defense and the Rule of Law"
(https://www.jstor.org/stable/2202738). 83 A.J.I.L. 259
Scheffer, David J. (July 11, 1986). "U.S. Must Not Be the Outlaw on Nicaragua"
(http://bailey83221.livejournal.com/60404.html). Los Angeles Times: 5.
External links
The Contras and the U.S. (http://repository.library.georgetown.edu/handle/10822/552661) from the
Dean Peter Krogh Foreign Affairs Digital Archives
(http://repository.library.georgetown.edu/handle/10822/552494)
Military Aid to the Contras (http://repository.library.georgetown.edu/handle/10822/552623) from the
Dean Peter Krogh Foreign Affairs Digital Archives
(https://repository.library.georgetown.edu/handle/10822/552494/browse?type=title)
Nicaragua: Whose Side Are We On? (http://repository.library.georgetown.edu/handle/10822/552661)
from the Dean Peter Krogh Foreign Affairs Digital Archives
(http://repository.library.georgetown.edu/handle/10822/552494)
"Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States Of
America) - overview" (http://www.icj-cij.org/docket/index.php?
p1=3&p2=3&k=66&PHPSESSID=05fad554ae9feec6f32e8fcea282db53&case=70&code=nus&p3=4)
. International Court of Justice. Retrieved June 16, 2007.
"Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States Of
America) - Summary of the Judgment of 27 June 1986" (http://www.icj-cij.org/docket/index.php?
sum=367&code=nus&p1=3&p2=3&case=70&k=66&p3=5). International Court of Justice. Retrieved
June 16, 2007.
Retrieved from "http://en.wikipedia.org/w/index.php?title=Nicaragua_v._United_States&oldid=660339469"
Categories: NicaraguaUnited States relations International Court of Justice cases History of Nicaragua
IranContra affair 1986 in case law 1986 in Nicaragua 1986 in the United States
1986 in international relations Reagan administration controversies Nicaraguan Revolution
101

102
Orlando v. Laird Case Brief Summary
Summary of Orlando v. Laird, 443 F.2d 1039, cert. denied 404 U.S. 869 (2d Cir. 1971).
Facts
Orlando (P) was drafted by the United States Army to serve in Vietnam. Orlando commenced an action to
enjoin Secretary of Defense Laird (D), the Secretary of the Army, and commanding officers from
enforcing their deployment orders. The District Court ruled against Orlando and the Supreme Court
denied certiorari.
Issue
Is Congresss delegation of war making authority under the Constitution a discoverable and
manageable standard such that decisions to go to war are not foreclosed from judicial ruling by the
political question doctrine?
Holding and Rule

Yes. Congresss delegation of war making authority under the Constitution is a discoverable and
manageable standard such that decisions to go to war are not foreclosed from judicial ruling by the
political question doctrine.
The test of is whether there is any action by Congress sufficient to authorize or ratify the military activity
in question. The court held that the facts were sufficient to support a conclusion that this test had been
satisfied. The form in which Congress takes to ratify the acts of the President is a political question and is
outside the power and manageable standards under which this court could judge such actions. However,
the court held that Congress had clearly ratified the acts of the President regarding these matters.
Disposition
Judgment affirmed.
103
See Baker v. Carr for a constitutional law case brief in which the United States Supreme Court set forth
the factors to be considered in determining whether a case presents a political question and is therefore
nonjusticiable.
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Padillav.Hanft
IndefiniteDetentionofEnemyCombatant,Padillav.Hanft(FourthCircuit)
(amicus).FiledJune13,2005.Counsel:AnnBeeson,ACLUNationalOffice,Art
Eisenberg,NYCLU,RebeccaK.Glenberg.
In2002,JosePadilla,whoisaUnitedStatescitizen,wasarrestedatOHare
InternationalAirportbyFBIagentsexecutingamaterialwitnessarrestwarrant.Padilla
wastransferredtoNewYork,wherehewasheldasamaterialwitnessinconnection
withagrandjuryinvestigationoftheterroristattacksofSeptember11,2001.InJune,
thePresidenthadissuedanordernamingPadillaanenemycombatantand
transferringhiscustodytotheDepartmentofDefense,whichimmediatelyseized
Padillaand,withoutnoticetocounsel,transportedhimtoahighsecuritymilitarybrig
inSouthCarolina.Padillasappointedcounselimmediatelyfiledahabeascorpus
petitiononhisbehalf.Foryears,thegovernmentfilednochargesagainstPadilla,but
heldhimincommunicado,notevenallowingvisitsfromhisattorney.Thecase
eventuallyreachedtheSupremeCourt,whichheldthatPadillahadfiledhishabeas
petitionhadbeenfiledinthewrongcourt.
In2004,PadillascounselfiledanewhabeascorpuspetitionintheU.S.DistrictCourt
forSouthCarolina.TheDistrictCourtruledthatPadillasdetentionhadnotbeen
authorizedbyCongressandwasthereforeunlawful.Thegovernmentappealedtothe
FourthCircuit.OuramicusbriefinsupportofPadillaarguesthattheindefinitemilitary
detentionofPadillaviolatesthecoreconstitutionalprinciplesofdueprocessoflawand
thesupremacyofcivilianauthorityovermilitary.OnSeptember9,2005,theFourth
CircuitCourtofAppealsreversedthetrialcourt'sdecisionandheldthatthepresident
wasauthorizedtodetainenemycombatantsundertheAuthorizationofUseofMilitary
ForcepassedbyCongressinthewakeofSeptember11.Padillathenfiledapetition
forcertiorariintheUnitedStatesSupremeCourt,whichwasdeniedonApril3,2006.
WhiletheSupremeCourtwasconsideringPadilla'spetitionforreview,thegovernment
transferredPadillatociviliancustodyinanattempttosidesteptheCourt'sreview,and
chargedhimwithterrorismrelatedoffenses.ThecriminaltrialbeganinSeptember
2006.
PrivacyPolicyCopyrightUserAgreement
UpdatedNov.30,2006
107
Parhat v. Gates
Parhat v. Gates No. 06-1397 (D.C. Cir.) is a petition for review

under the Detainee Treatment Act of 2005 filed on behalf of Hozaifa
Parhat, and six other Uyghur detainees held in extrajudicial detention
in the United States Guantanamo Bay detention camps, in
Cuba.[1][2][3][4]
Susan Baker Manning, one of Parhat's attorneys, commented:[5]
If were going to hold people, possibly for the rest of

their lives, it seems eminently fair that we should look at
all the evidence to see if they are or are not the people
who should be at Guantnamo.

Hufaiza Parhat, et al.,
v. Robert M. Gates, et
al., Petitioners' motion
for entry of protective
order, December 18,
2006
Hufaiza Parhat v.
Robert M. Gates -decided June 20, 2008
Contents
1 Rasul v. Bush
2 Appeal under the Detainee Treatment Act
3 See also
4 References
Rasul v. Bush
Initially, the Bush Presidency asserted that none of the captives apprehended during the "global war on
terror" were protected by the Geneva Conventions. The Bush Presidency asserted that the Guantanamo Bay
Naval Base was not United States territory, and that it was not subject to United States law. Consequently,
they challenged that the captives were entitled to submit writs of habeas corpus.
The Supreme Court of the United States ruled, in Rasul v. Bush, that the Guantanamo base was covered by
US law.
Appeal under the Detainee Treatment Act

On Monday June 23, 2008, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit announced
its decision of three days earlier overturning the determination of Parhat's Combatant Status Review
Tribunal.[6][7][8] The court had only published a one paragraph announcement as its full ruling contained
classified material, and an unclassified version had not yet been prepared.
108
On Monday June 30, 2008 the court published a 39-page opinion, written by Circuit Judge
Garland.[9][10][11] The ruling was published with a limited number of redactions.
See also
Qassim v. Bush
References
1. Lyle Denniston (May 10, 2007). "New developments on detainees"
(http://web.archive.org/web/20070907031146/http://www.scotusblog.com/movabletype/archives/2007/05/new_d
evelopment.html). Scotusblog. Archived from the original
(http://www.scotusblog.com/movabletype/archives/2007/05/new_development.html) on 2007-09-07. Retrieved
2007-09-18.
2. "Order list: 551 U.S." (http://www.supremecourt.gov/orders/courtorders/062907pzor.pdf) (PDF). Supreme Court
of the United States. June 29, 2007. Retrieved 2008-01-07.
3. "Nos. 06-1195 and 06-1196 -- In the Supreme Court of the United States"
(http://www.usdoj.gov/osg/briefs/2006/0responses/2006-1195.resp.pdf) (PDF). Supreme Court of the United
States. March 2007. Retrieved 2008-01-05.
4. "Nos. 06-1195 and 06-1196 -- In the Supreme Court of the United States"
(http://www.usdoj.gov/osg/briefs/2006/0responses/2006-1195.resp.rehearing.pdf) (PDF). Supreme Court of the
United States. June 2007. Retrieved 2008-01-05.
5. William Glaberson (September 12, 2007). "Officials Cite Danger in Revealing Detainee Data"
(http://www.nytimes.com/2007/09/12/washington/12gitmo.html?ref=todayspaper). New York Times. p.A18.
6. James Vicini (June 23, 2008). "Appeals court rules for Guantanamo prisoner"
Post. Retrieved 2008-06-23. mirror (http://www.webcitation.org/query?
url=http%3A%2F%2Fwww.washingtonpost.com%2Fwpdyn%2Fcontent%2Farticle%2F2008%2F06%2F23%2FAR2008062300844.html&date=2008-06-23)
7. "In first, court rejects military's ruling in Guantanamo case"
(http://www.mcclatchydc.com/homepage/story/41907.html). McClatchy News Service. June 23, 2008. Retrieved
2008-06-23.
8. "US appeals court rejects classification of Chinese Muslim as an enemy combatant"
(http://www.iht.com/articles/ap/2008/06/23/america/NA-GEN-US-Guantanamo-Chinese-Muslim.php).
International Herald Tribune. June 23, 2008. Retrieved 2008-06-23.
9. Mike Nizza (2008-06-30). "Snark Injection for Guantanamo Trial"
(http://thelede.blogs.nytimes.com/2008/06/30/snark-injection-for-guantanamo-trial/?hp). New York Times.
10. Merrick B. Garland (2008-06-30). "Huzaifa Parhat v. Gates"
(http://pacer.cadc.uscourts.gov/common/opinions/200806/06-1397-1124487.pdf) (PDF). United States
Department of Justice. Retrieved 2008-06-30.
11. William Glaberson (2008-06-30). "Court Is Skeptical of U.S. Evidence in Guantnamo Case"
(http://www.nytimes.com/2008/07/01/washington/01gitmo.html?hp). New York Times. Retrieved 2008-06-30.
Retrieved from "http://en.wikipedia.org/w/index.php?title=Parhat_v._Gates&oldid=661042692"

Categories: United States habeas corpus case law
109
United States Court of Appeals for the District of Columbia Circuit cases 2008 in United States case law
Guantanamo captives' habeas corpus petitions United States case law stubs
110
Prize Cases
Prize Cases (1863) 67 U.S. 635[1] was a case

argued before the Supreme Court of the United
States in 1862 during the American Civil War. The
Supreme Court's decision declared constitutional
the blockade of the Southern ports ordered by
President Abraham Lincoln. The opinion in the
case was written by Supreme Court Justice Robert
Cooper Grier.
Contents
1 Background
2 Decision
3 Dissent by Justice Nelson
4 Conclusion
5 See also
6 References
7 External links
Background
Facing the secession of several states from the
Union and the possibility of open hostilities,
Abraham Lincoln did not ask Congress to declare
war on the Confederate States of America as he
believed this would be tantamount to recognizing
the Confederacy as a nation. Instead, Lincoln
instituted a naval blockade which had important
legal ramifications because nations do not blockade
their own ports; rather, they close them. By
ordering a blockade, Lincoln essentially declared
the Confederacy to be belligerents instead of
insurrectionists.
Prize Cases

Argued February 10, 1863
Full case The Brig Amy Warwick; The Schooner
name
Crenshaw; The Barque Hiawatha; The
Schooner Brilliante.
(more)
17 L. Ed. 459, 2 Black 635, 1862 U.S. LEXIS
282
Holding
The President did have the authority to order a blockade
and impound ships, even without a formal declaration of
war
Court membership
Chief Justice
Roger B. Taney
Associate Justices
James M. Wayne John Catron
Samuel Nelson Robert C. Grier
Nathan Clifford Noah H. Swayne
Samuel F. Miller David Davis
Case opinions
Majority Grier, joined by Wayne, Swayne, Miller, Davis
Dissent Nelson, joined by Clifford, Catron, Taney
Laws applied
Article II of the United States Constitution, Law of the Sea
The Confederate States were mostly agrarian, and almost all of their machined and manufactured goods
were imported. At the beginning of the war there was only one significant steel mill and manufactory in the
South, the Tredegar Iron Works in Richmond, Virginia. Moreover, the Southern economy depended on the
export of cotton, tobacco and other crops. The blockade of the South resulted in the capture of dozens of
American and foreign ships, both those attempting to run the highly efficient blockade and smuggle goods
and munitions to the South as well as those attempting to smuggle exports from the South.
111
Decision
The question before the court dealt with the seized ships, but it reached widely into the legality of wars
against acts of belligerence, whether or not officially declared. It rose through the lower Federal courts
through lawsuits by Northern merchants whose ships were seized by U.S. Navy warships enforcing the
blockade. In admiralty, a ship captured during war may be kept as a prize. If there is no formal war,
capturing ships and impounding them is piracy. Plaintiffs contended that the blockade was not legal because
a war had not been declared, thus making it perfectly legal to run the blockade and sell war materiel in the
blockaded Southern ports. On March 10, 1863, the Court ruled that the states of the Southern Confederacy
were in insurrection and at war against the United States by acts of belligerency on April 12 and April 17,
1861, to wit: the firing upon Fort Sumter and the Privateering Act proclaimed by Confederate President
Jefferson Davis. Lincoln's Proclamation of Blockade was made on April 19, 1861, [Navy Official Records,
Series 1, Volume 5, page 620] two days after Davis's call for privateers and it was founded upon acting
against privateers, not an open policy of warfare as was later recommended by the ranking General of the
Army, Winfield Scott.
In making its decision, the Court looked to recent British interpretations of international law, and concluded
that the Southern Confederacy was indeed a belligerent, but a belligerent did not have to be a nation and
furthermore that the name of the war was irrelevant. Justice Robert Grier wrote the 5-4 majority opinion
stating, "...it is not necessary to constitute war, that both parties should be acknowledged as independent
nations or sovereign States." While the court acknowledged that the United States Congress had, in July
1861, adopted a law ratifying and approving the President's proclamation after the fact, as well as other
actions taken since then to prosecute the war, that was not the point. Grier further wrote, "...The President
was bound to meet it [the war] in the shape it presented itself, without waiting for Congress to baptize it
with a name." By this decision, the Supreme Court upheld the President's executive powers to act in
accordance with the Presidential oath of office, "to preserve, protect and defend the Constitution of the
United States" and to act expediently as the Commander-in-Chief in time of wara de facto war existing
since April 12, 1861.
Dissent by Justice Nelson

The dissenting opinion by the Court noted that the President is not given authority by the Constitution to
declare war; the power to declare war lies with Congress. The Civil War did not exist until it was declared
so by Congress. Lincoln ordered the blockade before Congress had declared a war. As such, Nelson and the
minority believed that the blockade was unconstitutional. They further contend that even had Lincoln been
granted the authority for the blockade, he would need to provide the neutral parties with a proper notice of
seizure.
Conclusion
The Supreme Court found the decision by President Lincoln to impose a blockade to be constitutional.
See also
112
References
http://supreme.justia.com/us/67/635/case.html
External links
Works related to Prize Cases at Wikisource
^ 67 U.S. 635 (http://caselaw.lp.findlaw.com/scripts/getcase.pl?
navby=CASE&court=US&vol=67&page=635) Full text of the opinion courtesy of Findlaw.com.
Oyez Official Supreme Court media, summary of The Prize Cases, and link to written opinion.
(http://www.oyez.org/cases/1851-1900/1862/1862_0/)
Legal Information Institute Dissent by Justice Nelson
(http://www.law.cornell.edu/supct/html/historics/USSC_CR_0067_0635_ZD.html)
Retrieved from "http://en.wikipedia.org/w/index.php?title=Prize_Cases&oldid=656957676"
Categories: United States Supreme Court cases United States admiralty case law
1862 in United States case law United States Supreme Court cases of the Taney Court
This page was last modified on 17 April 2015, at 21:49.
113
Reid v. Covert
Reid v. Covert, 354 U.S. 1 (1957), was a

landmark United States Supreme Court case in
which the Court ruled that the Constitution
supersedes international treaties ratified by the
United States Senate. According to the decision,
"this Court has regularly and uniformly
recognized the supremacy of the Constitution
over a treaty," although the case itself was with
regard to an executive agreement, not a "treaty"
in the U.S. legal sense, and the agreement itself
has never been ruled unconstitutional.
Contents
1 Background
3 See also
4 References
5 Further reading
6 External links
Reid v. Covert

Argued May 3, 1956
Reargued February 27, 1957
Full case
Reid, Superintendent, District of Columbia Jail
name
v. Clarice Covert
Citations
354 U.S. 1
(more)
77 S. Ct. 1222; 1 L. Ed. 2d 1148; 1957 U.S.
LEXIS 729
Holding
The Constitution supersedes all treaties ratified by the United
States Senate. The military may not try the civilian wife of a
soldier under military jurisdiction.
Court membership
Chief Justice
Earl Warren
Background
The case involved Clarice Covert, who had been
convicted by a military tribunal of murdering her
husband. At the time of Mrs. Covert's alleged
offense, an executive agreement was in effect
between the United States and United Kingdom
which permitted United States' military courts to
exercise exclusive jurisdiction over offenses
committed in Great Britain by American
servicemen or their dependents.
Associate Justices
Hugo Black Felix Frankfurter
William O. Douglas Harold H. Burton
Tom C. Clark John M. Harlan II
William J. Brennan, Jr. Charles E. Whittaker
Case opinions
Plurality
Black, joined by Warren, Douglas, Brennan
Concurrence Frankfurter
Concurrence Harlan
Dissent
Clark, joined by Burton
Whittaker took no part in the consideration or decision of the case.
Laws applied
U.S. Const. Art. VI
The Court found: "No agreement with a foreign

nation can confer power on the Congress, or on
any other branch of Government, which is free from the restraints of the Constitution." The Court's core
holding of the case is that U.S. Citizen civilians abroad have the right to Fifth Amendment and Sixth
Amendment constitutional protections.
114
The Court found it unconstitutional to adjudge U.S. citizen civilians in military courts, under the UCMJ.
The Court agreed with the petitioners, concluding that as United States citizens they were entitled to the
protections of the Bill of Rights, notwithstanding that they committed crimes on foreign soil. The Court
distinguished Reid from the Insular Cases: The "Insular Cases" can be distinguished from the present cases
in that they involved the power of Congress to provide rules and regulations to govern temporarily
territories with wholly dissimilar traditions and institutions.[1]
Justice Black declared: "The concept that the Bill of Rights and other constitutional protections against
arbitrary government are inoperative when they become inconvenient or when expediency dictates
otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written
Constitution and undermine the basis of our government."[1]
Justice Harlan's concurrence reaffirmed the application of Fifth Amendment and Sixth Amendment rights of
dependents of armed services members.
The court initially ruled against Mrs. Covert, but changed its mind and issued a new decision in her favor
after her lawyer, Frederick Bernays Wiener, famously made a successful petition for rehearing. This is the
only time the Supreme Court has changed its mind as the result of a petition for rehearing.[2]
See also
Botiller v. Dominguez
Wilson v. Girard
References
1. Reid v. Covert (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0354_0001_ZO.html), SUPREME
COURT OF THE UNITED STATES, retrieved 2013-09-26
2. Reid v. Covert (http://www.oyez.org/cases/1950-1959/1955/1955_701_2), The Oyez Protect at IIT Chicago-Kent
College of Law, retrieved 2013-11-22
Further reading
Green, Sedgwick W. (1958). "The Treaty Making Power and the Extraterritorial Effect of the
Constitution: Reid v. Covert and the Girard" (http://heinonline.org/HOL/LandingPage?
collection=journals&handle=hein.journals/mnlr42&div=43&id=&page=). Minnesota Law Review 42:
825.
External links
Works related to Reid v. Covert at Wikisource
Reid v. Covert, 354 U.S. 1 (https://supreme.justia.com/cases/federal/us/354/1/) (1957).
Retrieved from "http://en.wikipedia.org/w/index.php?title=Reid_v._Covert&oldid=644778280"
115
United States foreign relations case law United States Supreme Court cases of the Warren Court
116
Rumsfeld v. Padilla
Rumsfeld v. Padilla, 542 U.S. 426

(https://supreme.justia.com/cases/federal/us/542/426/)
(2004), was a United States Supreme Court case, in which
Jos Padilla, an American citizen, sought habeas corpus
relief against Secretary of Defense Donald Rumsfeld, as a
result of his detention by the military as an "unlawful
combatant."
On May 8, 2002, Padilla, a U.S. citizen, flew from
Pakistan to Chicago's O'Hare International Airport. As he
left the plane, Padilla was apprehended by federal agents
executing a material witness warrant issued by the United
States District Court for the Southern District of New
York in connection with its grand jury investigation into
the September 11th attacks by terrorists. Initially Padilla
was considered a "material witness," without charges
filed, and given very limited access to legal counsel. He
was later classified as an "enemy combatant," which, the
Bush administration claimed as justification to imprison
him indefinitely, and without legal recourse or access, as
with non-citizen suspects in the war on terror.
Padilla's attorney, Donna Newman, claiming to act as his
next friend and on his behalf, filed a petition for habeas
corpus in the United States District Court for the
Southern District of New York. On December 4, 2002,
the court denied the petition and held that the President of
the United States, as Commander-in-Chief had the
authority to designate as an "enemy combatant" an
American citizen captured on American soil, and, through
the Secretary of Defense, to detain him for the duration of
armed conflict with al-Qaida.
The case was appealed to the United States Court of
Appeals for the Second Circuit, which held that the
President lacked the authority to order the military
detentions of American citizens captured on American
soil.
The case was petitioned to the United States Supreme
Court. The principal issue before the Court was whether
the Congressional Authorization for Use of Military
Force post September 11 gave the president the powers to
detain a United States citizen under military custody by
classifying the detainee as an "enemy combatant." 117
Rumsfeld v. Padilla

Argued April 28, 2004
Full case
Donald H. Rumsfeld, Secretary of
name
Defense, Petitioner v. Jos Padilla
and Donna R. Newman, as Next
Friend of Jos Padilla
Citations
542 U.S. 426 (more)
124 S. Ct. 2711; 159 L. Ed. 2d 513;
2004 U.S. LEXIS 4759; 72 U.S.L.W.
4584; 2004 Fla. L. Weekly Fed. S
466
Prior history On writ of certiorari to the United
States Court of Appeals for the
Second Circuit. Padilla v. Rumsfeld,
352 F.3d 695, 2003 U.S. App.
LEXIS 25616 (2d Cir. N.Y., 2003)
Subsequent Remanded for entry of an order of
history
dismissal without prejudice, Padilla
v. Hanft, 2005 U.S. Dist. LEXIS
2921 (D.S.C., Feb. 28, 2005)
Holding
Habeas corpus petition had been improperly filed in
the U.S. District Court for the Southern District of
New York, and should have been filed in the U.S.
District Court for the District of South Carolina;
petition should have named Padilla's immediate
custodian, not the Secretary of Defense.
Court membership
Chief Justice
William Rehnquist
Associate Justices
John P. Stevens Sandra Day O'Connor
Antonin Scalia Anthony Kennedy
David Souter Clarence Thomas
Ruth Bader Ginsburg Stephen Breyer
Case opinions
Otherwise, the president would run afoul of the NonDetention Act, which provides that "No citizen shall be
imprisoned or otherwise detained by the United States
except pursuant to an Act of Congress.[1]
Majority
Rehnquist, joined by O'Connor,

Scalia, Kennedy, Thomas
Concurrence Kennedy, joined by O'Connor
Dissent
Breyer
Laws applied
U.S. Const. art. II, U.S. Const. amend. V; 18
U.S.C.4001
(http://www.law.cornell.edu/uscode/18/4001.html);
115 Stat. 224 (Authorization for Use of Military
Force)
The Court did not decide this issue. Instead, the Court
held that the habeas corpus petition had been improperly
filed. It ruled that because Padilla was being held in a brig
(military prison) in South Carolina, the petition should
have been filed in the United States District Court for the
District of South Carolina and should have named the
commander of the brig and not the Secretary of Defense (because the brig commander was Padilla's
"immediate custodian"). The Court reversed the decision of the United States Court of Appeals for the
Second Circuit and remanded the case for dismissal without prejudice - that is, it overruled the Court of
Appeals decision and ordered the dismissal of the case, allowing Padilla to refile the petition. Thus the
principal issue of the case had not been resolved.
Paul Clement, Principal Deputy Solicitor General at the time, gave oral argument for the United States
(Rumsfeld); Jennifer Martinez, a law professor and human rights lawyer, gave oral argument on behalf of
Padilla and Newman.
Contents
1 Background
2 Supreme Court Cases
3 See also
4 References
5 External links
Background
The case was argued only two days before the Abu Ghraib prison abuse scandal was first shown to the
general public in a The New Yorker article by Seymour M. Hersh (April 30), which showed digital photos
taken by guards. The story was subsequently taken up by CBS and broadcast on nationwide television.
The timing of the two events is relevant for understanding political context before the publicizing of
incriminating photographs of abused Iraqi detainees, the United States was largely dominated by a political
climate wherein the charge of abuse was only anecdotal it was weighed lightly as compared to appeals for
national security. Still, the rendered decision came after news of the scandal broke, and the degree to which
the Abu Ghraib case had influence is speculative.
During the oral argument, Justice Ruth Bader Ginsburg asked some pointed questions of Clement some
of which directly treated the issue of abuse. An important dialogue features a comment by Deputy Solicitor
General Paul Clement which denies the claim that the United States uses torture:
118
Justice Ginsburg
Suppose the executive says mild torture, we think, will help get this information. It's not a soldier who
does something against the Code of Military Justice, but it's an executive command. Some systems do
that to get information.
Clement
Well, our executive doesn't. And I think, I mean...
Justice Ginsburg
What's constraining? That's the point. Is it just up to the good will of the executive, or is there any
judicial check?
Supreme Court Cases

Ex Parte Milligan
Ex Parte Quirin
Johnson v. Eisentrager
Hamdi v. Rumsfeld
Rasul v. Bush
See also
References
1. 18 U.S.C.4001 (http://www.law.cornell.edu/uscode/18/4001.html)
External links
Rumsfeld v. Padilla
(http://www.law.duke.edu/publiclaw/supremecourtonline/certgrants/2003/rumvpad.html), U.S.
Supreme Court Decision
Abstract (http://www.oyez.org/oyez/resource/case/1730/) (OYEZ)
Oral argument (http://www.oyez.org/oyez/audio/1730/argument.smil) in RealMedia format (OYEZ)
Tatler blog entry (http://tatler.typepad.com/tatler/2004/05/rumsfeld_v_padi.html) noting the issue's
connection to Abu Ghraib
Retrieved from "http://en.wikipedia.org/w/index.php?title=Rumsfeld_v._Padilla&oldid=660295393"
Categories: Extrajudicial prisoners of the United States United States Supreme Court cases
2004 in United States case law American Civil Liberties Union litigation
United States Supreme Court cases of the Rehnquist Court United States Fifth Amendment case law
apply. By using this site, you agree to the Terms
119of Use and Privacy Policy. Wikipedia is a
120
Sami Al-Arian
Sami Amin Al-Arian (Arabic:
; born
January 14, 1958) is a Palestinian-American civil rights
activist who was a computer engineering professor at
University of South Florida. He pled guilty in 2006 to
conspiracy to contribute services to or for the benefit of
the Palestine Islamic Jihad, a Specially Designated
Born
January 14, 1958

Kuwait
Ethnicity
Palestinian
Terrorist organization.[1][2]
Almamater
Southern Illinois University

North Carolina State University
Occupation
Professor of computer engineering
Employer
University of South Florida
Religion
Islam
Spouse(s)
Nahla Al-Najjar
Children
Abdullah
Laila
Leena
Ali
Lama
Parent(s)
Amin;
Laila
He was indicted in 2003 on multiple counts related to

supporting a Palestinian group on the State Department's
terrorist list. At his trial the jury acquitted on 8 of 17
counts, and deadlocked on the remaining 9 counts. He
then pleaded guilty in 2006, pursuant to a plea agreement,
to conspiracy to help a "specially designated terrorist"
organization, the Palestinian Islamic Jihad.[1][3][4] AlArian was sentenced to 57 months in prison, given credit
for time served, and ordered deported following his
Sami Al-Arian
prison term.[3] He was to serve the balance of 19 months.

In November 2006, because he refused to testify before a
federal grand jury after the court held that he had no legal
basis for his refusal, he was held in civil contempt and
imprisoned for his contempt of court by a Virginia district
court judge.[5] He served 13 months in prison for his civil contempt, until the court lifted its contempt order
in December 2007.[5]
In 2007 and 2008, the United States Department of Justice subpoenaed Al-Arian to testify before a grand
jury. He again refused to testify, and prosecutors charged him with criminal contempt in June 2008.[6][7] In
September 2008, Al-Arian was released from detention on bond.[8] He remained under house arrest, as he
awaited a trial on criminal contempt charges.[9][10]
He was deported to Turkey on February 4, 2015.[11]
Contents
1 Early life and education
1.1 Kuwait and Egypt
1.2 United States
2 Tenured at University of South Florida
3 Activism
121
3.1 Community involvement and WISE
3.1 Community involvement and WISE

3.2 Emerson film and investigation
3.3 Citizenship
3.4 Mazen Al-Najjar
3.5 Political involvement
4 O'Reilly controversy
4.1 Television interview
4.2 Academic freedom
4.3 Loftus debacle
5 Indictment and acquittal
5.1 Indictment
5.2 Trial
5.3 Plea agreement
5.4 Sentencing
6 Civil and criminal contempt prosecutions; 2006present
6.1 Grand jury subpoenas, refusal to testify, civil contempt, and hunger strikes
6.2 Criminal contempt proceedings; house arrest; deportation
7 Personal life
7.1 Film
8 Notes
9 See also
10 References
11 External links
Early life and education

Kuwait and Egypt
Al-Arian was born on January 14, 1958 in Kuwait. His parents, Amin and Laila Al-Arian, were Palestinian
refugees after the creation of Israel in 1948.[12][13] After the 1948 Palestine war, Amin had to leave behind
the family soap factory in Jaffa and flee towards the Gaza Strip's refugee camps.[14] Amin's family migrated
to Kuwait in 1957 where Sami Al-Arian was born.[14] Under Kuwaiti law, his parents had legal resident
status but he was not eligible for citizenship.[15] In 1966, his family was expelled from Kuwait after refusing
to become informants for Kuwaiti intelligence.[13] He received his primary and secondary education at
Cairo, Egypt.[15][16] During the early 1970s, Sami learned English from American TV shows, including
Kojak, Starsky and Hutch, Baretta, and The Fugitive.[14] He left Egypt in 1975, and returned in 1979 for a
visit when he married Nahla Al-Najjar.[15]
United States
Amin Al-Arian used all of his life savings to send Sami to America for an education.[14] In 1975, Al-Arian
came to the United States to study engineering at Southern Illinois University.[17] In 1978, he graduated
with a major in Electrical Sciences and Systems Engineering.[18] At North Carolina State University, he
122
earned his master's degree in 1980 and doctorate in 1985.[15][18]
Tenured at University of South Florida

He moved to Temple Terrace after he was hired as an assistant professor to teach computer engineering at
University of South Florida on January 22, 1986.[15][16][19] He was granted permanent resident status for
United States in March 1989.[20] He was promoted from an assistant professor to an associate professor with
tenure.[15] He received many accolades relating to teaching including the Jerome Krivanek Distinguished
Teacher Award in 1993 and a salary raise based on merit grades via the Teaching Incentive Program in
1994.[15]
Activism
Community involvement and WISE
He was very involved in the local community. He served as an imam for a local mosque and as a charter
officer for the local religious school.[14][15] In 1992, he hosted a local cable-access show Peace be upon
you.[14]
He rose to national prominence for his pursuit of civil rights of Muslim-Americans and raising awareness of
the Palestinian plight. Al-Arian criticized the peace process led by Palestinian Authority president Yasser
Arafat and advocated support for the Palestinian uprisings against Israeli occupation during the 1980s and
early 1990s.[21][22] On October 20, 1988, Al-Arian established the Islamic Concern Project, which included
a committee devoted to raising charity for Palestine.[17][23] In 199091, his continued involvement in
promoting dialogue between the West and Middle East[24] led to the creation of World and Islam Studies
Enterprise (WISE), which served as a think tank that promoted public policy initiatives.[15][17] WISE and
University of South Florida formally agreed to cooperate on March 11, 1992.[4][15][25] WISE published
journals, supported graduate student education, and held seminars between American and Middle Eastern
scholars.[26]
Emerson film and investigation

Steve Emerson published a controversial film in November 1994 that accused WISE as a terrorist front
organization which Al-Arian vehemently denied.[27] In May 1995, Michael Fechter of the Tampa Tribune
expanded on Emerson's film. Fechter's articles were criticized by fellow journalists for instigating bigotry
through reckless journalism.[26][28] Sami Al-Arian's daughter, Laila Al-Arian, lambasted Emerson and the
Tribune for publishing photographs of their home, school, and family car.[29] In November 1995, federal
agents investigating "violations of perjury and immigration laws" searched Sami Al-Arian's home for six
hours to seize bank statements dating as far back as 1986, airline passes, telephone bills, AAA travel maps,
family videotapes, audiotapes, and computer disks.[17][30] A three-month independent inquiry was led by
prominent Tampa lawyer and former USF President William Reece Smith that involved hundreds of
123
documents and 59 interviews.[31] The investigation reported in May 1996 that there was "no evidence" to
support the allegation that Al-Arian or WISE supported terrorism.[31] The report went on to conclude that
University of South Florida officials acted appropriately in collaborating with WISE.[31] The 99-page report
was lauded by USF President Betty Castor for its comprehensive, thoughtful, and detailed analysis.[31] In
June 1996, Florida universities Chancellor Charles Reed also said their investigation found no links between
WISE and terror organizations.[32]
In May 1996, Villanova University canceled a seminar that involved many speakers including Al-Arian
after the Anti-Defamation League (ADL) complained about the possibility of riots.[21] The Middle East
Studies Association of North America (MESA), the United States's largest association of Middle East
scholars, approved a resolution that rebuked ADL for "creating an atmosphere of intimidation that resulted
in the cancellation of an academic event".[33] USF placed Al-Arian on paid administrative leave in May
1996 pending the outcome of a federal investigation which had an indefinite time frame.[17] Students
complained in August 1997 after a graduation requirement course taught by Al-Arian was cancelled.[34]
After consultation with authorities who brought no charges after a three-year federal investigation,[35] USF
decided to reinstate him in August 1998.[36]
Citizenship
He applied for U.S. citizenship in January 1994. Although he was informed that he passed all of the
requirements to obtain citizenship in September 1994, he was neither granted nor denied citizenship. Federal
law requires notification within 120 days after the citizenship examination. In October 1995, he filed suit for
a judge to award him citizenship directly.[37] His petition for citizenship was denied in March 1996 under
the pretense of unlawfully voting in a 1994 Hillsborough County local election.[37][38] But a state
investigation discovered no discrepancies and vindicated him because voter registration deputies gave AlArian the voter registration card via mail to vote in the 1994 local election.[37]
Mazen Al-Najjar
Sami Al-Arian's brother-in-law Mazen Al-Najjar was jailed for nearly five years, accused of having links to
Palestinian terrorists.[39] In May 1997, Al-Najjar was incarcerated in Miami, Florida without charge and
was held in jail indefinitely on the basis of secret evidence.[22][40] Although Judge McHugh found Al-Najjar
to be a respected member of a community, McHugh denied bail on the basis of secret evidence in May
1997.[22] In May 2000, U.S. district judge John A. Leonard ordered a rehearing because Al-Najjar's right to
due process had been violated when the government did not cede evidence in order for Al-Najjar to defend
himself.[41][42] During the first day of the rehearing in August 2000, the government called Al-Arian to
testify. Several legal analysts and Al-Arian were convinced that Al-Arian, not Al-Najjar, was the focus of
the Al-Najjar's court case.[43] On the advice of his attorney, Al-Arian cited the 5th Amendment to 99 of 102
questions.[41] Because Al-Najjar was a Palestinian born in Gaza during Egyptian control of the region, AlNajjar essentially had no citizenship anywhere and the allegations that he was connected to terrorists had
124
ruined attempts to find a country to take him, his wife, and three young daughters.[42] Al-Najjar was
released in December 2000 after a judge ruled the government had no evidence to continue holding
him.[44][45][notes 1] He overstayed his US student visa, and was deported in August 2002.[39]
Political involvement
Inspired by Al-Najjar's predicament, Al-Arian co-founded the Tampa Bay Coalition for Peace and Justice,
which focused on the use of secret evidence and other civil rights issues in Antiterrorism and Effective
Death Penalty Act of 1996 and Illegal Immigration Reform and Immigrant Responsibility Act of 1996. In
2000, Al-Arian co-founded and led the National Coalition to Protect Political Freedom.[46] Newsweek
named him as a "premier civil rights activist" for his efforts to repeal the use of secret evidence in trials.[16]
Al-Arian visited the White House four times from 1997 to 2001.[47]
During the 2000 presidential election, Al-Arian contacted Al Gore's campaign and Bush's campaign to
address the use of secret evidence to detain U.S. citizens without charge.[14] Al-Arian met Bush during a
campaign stop at the Florida Strawberry Festival to remonstrate against the Clinton administration's use of
secret evidence.[48] After presidential debates in which Bush decried the use of secret evidence as a form of
racial profiling against Arab-Americans, Al-Arian began campaigning for Bush as the candidate most likely
to end discrimination.[14] During the White House briefing that announced Bush as the winner of the
election, Al-Arian received a spot in the front row for his voter outreach efforts in Florida.[14] On June 20,
2001, Al-Arian joined 160 Muslim-American activists in a White House briefing with Bush senior adviser
Karl Rove.[49] But in a separate White House event on June 28, his son Abdullah a congressional intern
made national headlines when he was escorted out by Secret Service without explanation. Twenty four
Muslim community leaders walked out also to protest Abdullah's ejection.[46][47] The Secret Service later
apologized for the incident citing "confusion by one of its guards".[47] President Bush personally apologized
in a letter to Nahla and thanked the family for their charitable contributions to the Muslim communities
around the world.[14]
The Tampa Bay Muslim Alliance (TBMA) and Al-Arian had helped the resettlement of 50 families fleeing
from the Bosnian War. Al-Arian and other leaders of TBMA condemned the September 11 attacks in the
immediate aftermath. Al-Arian encouraged the nation to pursue those responsible but simultaneously
discouraged acts of war that might impact innocent people. He discouraged radio talk show hosts from
spreading hate-filled rhetoric and called for national unity.[50] Al-Arian led the local Muslim community in
organizing a blood drive in solidarity with the victims of September 11.
O'Reilly controversy
Television interview
On September 26, 2001, Al-Arian was invited to appear on The O'Reilly Factor to discuss Arab-American
reactions to the 9/11 attacks.[14][51] O'Reilly never addressed the reactions of Arab-Americans[14] and
confronted Al-Arian with a 1988 recording of him shouting
"death to Israel".[52]
125
O'REILLY: In in 1988, you did a little speaking engagement in Cleveland, and you were
quoted as saying, "Jihad is our path. Victory to Islam. Death to Israel. Revolution. Revolution
until victory. Rolling to Jerusalem." Did you say that?
AL-ARIAN: Let me just put it into context. When president Bush talked about crusade, we
understand what he meant here. The Muslim world thought he is going to carry a cross and go
invade the Muslim world and turn them into Christians. We have to understand the context.
When you say "Death to Israel," you mean death to occupation, death to apartheid, death to
oppression, death to...(sentence interrupted)
O'Reilly ended his interview by calling for the Central Intelligence Agency to shadow Al-Arian. USF
spokesman Michael Reich said that "O'Reilly's comments were nothing but speculation."[53] The O'Reilly
interview caused Al-Arian to receive death threats from throughout the country.[54]
Academic freedom
In October 2001, USF president Judy Genshaft placed Al-Arian on paid administrative leave and prohibited
Al-Arian from entering USF property because she believed Al-Arian's presence would compromise campus
security.[55][56] During winter recess when students and faculty were on leave in December 2001, Genshaft
and the USF Board of Trustees declared their intention to fire Al-Arian from teaching at USF because of
academic disruption and problems for campus safety. The Faculty Senate President Gregory Paveza
condemned the intention to fire as underhanded because the professors did not have their voices heard.[57]
The faculty adviser to the Board of Trustees resigned in protest of the firing.[58] The Faculty Senate held an
emergency meeting in January 2002 in which they approved by wide majorities a resolution that condemned
the firing as an assault to academic freedom.[14][59] United Faculty of Florida, the faculty union representing
USF professors, voted to throw its full support behind Al-Arian and condemned the university for
exaggerating security concerns.[60]
CNN did an interview with Al-Arian in January 2002 in which Al-Arian accused the university of allowing
those who make death threats dictate the limits of academic freedom.[61] Florida Governor Jeb Bush entered
into the fray when he offered support for Genshaft's decision for Al-Arian's dismissal.[62] An editorial from
the The New York Times criticized Bush and the university's handling of the case as an affront to freedom of
speech.[63] In late January, several student organizations at USF rallied on campus to protest Genshaft's
firing of Al-Arian.[64] At the Unitarian Universalist Fellowship in Lakeland in February 2002, Al-Arian
discussed the history of the Israeli-Palestinian conflict and answered questions from the community
regarding his USF quandary.[65] Roy Weatherford, the President of the USF Faculty Union, lambasted the
decision to fire Al-Arian in front of Genshaft in a faculty summit in March 2002.[66] Following the summit,
the American Association of University Professors (AAUP) revealed that it was conducting an investigation
on Genshaft to determine if she had violated academic freedom.[66] In late April 2002, AAUP investigators
reported that Genshaft was wavering on her decision to fire Al-Arian, especially if the university was
126
officially censured. AAUP investigators went on to conclude that Genshaft's decision to place Al-Arian on
paid administrative leave rather than suspension reflected her lack of faith in legal advice that green-lighted
Al-Arian's firing. USF denied the report and denied that AAUP's decision for censure would factor in AlArian's firing.[67]
The largest national teacher's union, American Federation of Teachers, called on Genshaft in July 2002 to
protect academic freedom by the reinstatement of Al-Arian.[68] AAUP's investigating committee determined
USF's premise for Al-Arian's removal was "insubstantial" and cited "grave issues of academic freedom and
due process". Civil libertarians and professors nationwide condemned USF for willingly capitulating to
post-9/11 hysteria.[14] Former Central Intelligence Agency (CIA) agent Vincent Cannistraro publicly
rebuked allegations against Al-Arian and testified in a civil disposition that Al-Arian had no ties to illegal
organizations.[14][69]
The investments of the Genshaft Family Foundation (GFF) in corporate bonds of the Industrial
Development Bank of Israel came under scrutiny in September 2002. Several internet petitions also cited
Genshaft's Jewish faith to raise support against Al-Arian. Genshaft denied knowing about the corporate
bonds and said her decisions were neither affected by her investments nor her religion in the Al Arian
case.[70] John Esposito, a prominent scholar of Middle East, cancelled his USF speech in October 2002 to
protest Genshaft's contraventions on academic freedom.[71]
Because Genshaft feared the punitive lawsuits if she fired Al-Arian, Genshaft continued to pursue the AlArian's dismissal through an unusual step in which she asked Hillsborough Circuit Court to determine
whether firing Al-Arian would violate Al-Arian's First Amendment rights.[72] District Court judge Susan
Bucklew dismissed Genshaft's case in December 2002. After Al-Arian filed a grievance contending that
Genshaft broke the union contract by disciplining Al-Arian, Genshaft reversed course and affirmed AlArian was never disciplined.[73] But a week after a federal indictment on Al-Arian, Genshaft fired him on
February 27, 2003 by using the indictment as legal cover to protect the university from any ensuing
lawsuit.[74]
Loftus debacle
In March 2002, John Loftus compounded on O'Reilly's accusations by citing anonymous sources and filing
a lawsuit that claimed Al-Arian used state-regulated organizations to launder money.[75] Al-Arian's defense
team derided the lawsuit as a publicity seeking stunt and suggested Loftus needed mental treatment.[76][77]
Loftus's lawsuit was summarily dismissed by the judge for failing to adequately show how Loftus was
personally injured by Al-Arian's alleged activities.[76]
Indictment and acquittal

Indictment
After one of the Justice Department's longest-running and most controversial terrorism investigations,
federal prosecutors filed an indictment on February 21, 2003 which charged Al-Arian with racketeering for
Palestine Islamic Jihad (PIJ). Al-Arian was indicted with co-defendants Ghassan Ballut, Hatim Fariz, and
127
Sameeh Hammoudeh.[78] Attorney General John Ashcroft hailed the vastly expanded powers of the Patriot
Act as fundamental to the indictment. Arab American groups condemned the indictment as persecution for
Al-Arian's advocacy of Palestinian causes.[79] Local community activists, Iraq war protesters, and MuslimAmericans held demonstrations regularly on Al-Arian's affair in the weeks following the indictment.[80] AlArian labeled his arrest a consequence of post-9/11 hysteria at a public pronouncement in front of a
courthouse rally by his supporters.[81]
Trial
Al-Arian's five-month, 13-day trial began with frenzied attention from national media outlets. The
prosecution's case was built largely on FBI wiretaps and fax transmissions gathered between 1994 and the
time of Mr. Al-Arian's arrest in 2003. The surveillance included roughly 20,000 hours of dialogue from
472,000 wiretapped telephone conversations on 18 tapped lines gathered from 1994 to 2003.[82] While such
wiretaps taken by the intelligence arm of the FBI are usually kept secret from federal criminal investigators,
provisions in the Patriot Act and the Foreign Intelligence Surveillance Act allow their use in certain trials
dealing with terrorism.[83] At the end of the prosecution's case, Al-Arian's lawyers chose not to present any
witnesses in his defense and rested without offering a defense, hoping to leave the burden of proof squarely
on the government's shoulders.[84] The trial concluded in November 2005. After 13 days of deliberations,
the jury acquitted Al-Arian in December on 8 of 17 counts and deadlocked on the remaining nine. Two codefendants were acquitted of all charges and another co-defendant was also acquitted on majority of his
charges.[85] The verdict was seen as a major embarrassment to the government's prosecution and to the
Patriot Act.[86]
At trial, the prosecution accused Al-Arian of aiding Palestine Islamic Jihad (PIJ), which the Clinton
administration issued an executive order declaring the PIJ a "specially designated terrorist" organization in
1995. The executive order barred "making or receiving contributions, funds, goods or services" to benefit
the PIJ, and outlawed actions designed to evade the ban. Federal prosecutors presented several transcripts of
phone conversations and fax exchanges that Al-Arian had with PIJ leaders before such communications
became illegal in 1995. None involved any discussion of an attack against the U.S. or reflected advance
knowledge of attacks in the Middle East.[4]
FBI agent Kerry Myers testified that the PIJ had planned an attack inside the U.S., but that all information
about the plot was classified and he could not discuss it. Under cross-examination, Myers admitted that the
PIJ had never carried out an attack outside Israel and the occupied territories.[87]
In April 2005, the faculty union United Faculty of Florida passed resolutions to send a representative to AlArian's trial and to express support for Al-Arian's constitutional right to a fair trial with fair treatment of
prisoners.[88]
Plea agreement
On February 28, 2006, Al-Arian signed a plea agreement in which he agreed to plead guilty to one count of
conspiracy to contribute services to or for the benefit of the PIJ, a Specially Designated Terrorist
organization, in violation of 18 U.S.C. 371.[1][89] In return, the U.S. Attorney: a) agreed to dismiss the
128
other eight remaining charges in the superseding indictment; b) agreed not to charge Al-Arian with any
other crimes known to the government at the time of the execution of the agreement; c) agreed not to enter
any recommendation as to the imposition or amount of a fine; d) agreed with Al-Arian that an appropriate
sentence would be 4657 months in prison; and e) covenanted that if no adverse information were received
suggesting such a recommendation to be unwarranted, the U.S. would recommend that Al-Arian receive a
sentence "at the low end of the applicable guideline range, as calculated by the Court".[1] As part of the deal,
Al-Arian agreed to be deported once his prison sentence ended.[1][90] The plea agreement provided that it
was "limited to the Office of the United States Attorney for the Middle District of Florida and the
Counterterrorism Section of the Department of Justice, and cannot bind other federal, state, or local
prosecuting authorities."[1][5] It also provided that it "constitutes the entire agreement between the
government and [Al-Arian] ... and no other promises, agreements, or representations exist or have been
made to [Al-Arian]".[1][5] The district court judge asked Al-Arian whether he had been promised anything
else by anyone to induce his guilty plea, and he said that he had not.[5] The plea agreement was unsealed
and accepted by Judge James S. Moody on April 17, 2006.[90] The count carried a maximum sentence of
five years imprisonment, a $250,000 fine, and three years of supervised release.[1] Al-Arian remained in
custody pending his sentencing and deportation. The deal came after 11 years of Federal Bureau of
Investigation investigations, wiretaps and searches, and three and a half years of trial preparation, time AlArian spent in jail, most of it in solitary confinement.[91]
Supporters of Al-Arian said the agreement was reached in part to end his family's suffering and to reunite
them.[92][93]
Sentencing
Judge Moody sentenced al-Arian to the maximum 57 months in prison and three years of supervised release
on May 1, 2006, and gave him credit for time served.[3] Prosecutors said al-Arian would serve the balance
of 19 months, and then be deported. In his ruling, Moody harshly criticized al-Arian.[94][95] Al-Arian went
on a 62-day hunger strike to protest the ruling.[96]
Amnesty International demanded his immediate release and called for an investigation on his treatment in
prison. It deemed his pre-trial detention conditions to be "gratuitously punitive" and "inconsistent with
international standards for humane treatment".[97] In a 2007 letter to Ashcroft, the human rights
organization went on to declare that his unacceptably harsh and punitive abuse by prison guards was
based, at least in part, on his political background.[96][98]
Civil and criminal contempt prosecutions; 2006present

Al-Arian was subpoenaed three times to testify in terrorism-related investigations before Virginia federal
grand juries between 2006 and 2008. Each time, he refused to testify. He challenged the initial subpoena in
four different federal courts, each of which held that he was in fact required to testify. He was imprisoned
for 13 months for civil contempt for failing to testify in compliance with the first subpoena. He is awaiting
trial as well for criminal contempt for his failure to testify in compliance with the second and third
subpoenas.
129
Grand jury subpoenas, refusal to testify, civil contempt, and hunger strikes
In May 2006, the U.S. District Court for the Eastern District of Virginia issued a subpoena to Al-Arian to
testify before a federal grand jury in Alexandria, Virginia, in an investigation into the alleged financing of
terror by the Herndon, Virginia-based International Institute of Islamic Thought (IIIT).[5][99] The subpoena
was served on Al-Arian in October 2006.[5] He sought to quash it on the assertion that his plea agreement
prevented his being forced to testify before the Virginia grand jury.[5] He said the government had agreed
that he would not be required to cooperate with it in any manner, though that specific agreement was not
reflected in the written plea agreement.[5] In a verbal agreement that he says appears in court transcripts,
federal prosecutors agreed he would not have to testify in Virginia.[100] Second, Al-Arian also said he
refused to testify because he believed "his life would be in danger if he testified."[99] Third, Al-Arian
claimed he has no information that could further the investigation.[99] Fourth, Al-Arian said he would not
testify because he felt IIIT was inappropriately charged.[101] When called before the grand jury on October
19, Al-Arian refused to answer questions about IIIT.[102]
A Virginia District Court held that he had no legal basis to refuse to testify. The court held him in civil
contempt, and imprisoned him on November 16, 2006, for contempt of court, with the days served for civil
contempt not counting towards the days of imprisonment he had remaining on his guilty conspiracy plea.[5]
He appealed the Virginia District Court decision to the Fourth Circuit Court of Appeals, which affirmed the
lower court's ruling.[5] Thirteen months later, on December 14, 2007, the Virginia District Court lifted its
contempt order, starting the clock ticking again on his days-served on his conspiracy guilty plea sentence.[5]
A Florida District Court also held that the plea agreement was not ambiguous, and did not prevent the
government from issuing a subpoena requiring him to testify before a grand jury.[5] Al-Arian, who is
diabetic, began a 60-day hunger strike on January 22, 2007, to "protest continued government
harassment."[99][103] By March 20, 2007, the 6-foot-tall (1.8m) Al-Arian had gone from 202 to 149 pounds
(92 to 68kg).[100] Al-Arian appealed the Florida District Court decision to the Eleventh Circuit Court of
Appeals, which upheld the lower court on January 25, 2008.[5] It pointed out that the plea agreement did not
contain any mention of whether Al-Arian would be compelled to testify in front of a grand jury in the
future.[5] It also noted that the agreement said it reflected all promises and agreements between Al-Arian
and the government, and that this accorded with Al-Arian's statement, when questioned by the trial court
judge, that there were no promises or inducements made to him other than those reflected in the written
agreement.[5] Furthermore, the court observed that the plea agreement only spoke to the issue of the
government prosecuting Al-Arian for crimes known to the office at the time of the agreement, but did not
immunize Al-Arian from future subpoenas.[5] The court therefore held the plea agreement to be clear,
unambiguous, and to not grant Al-Arian immunity from the grand jury subpoena.[5] The Justice Department
issued its third subpoena later that month.[101]
In March 2008 he began another hunger strike, to protest his subpoena.[101] He ended his hunger strike two
months later.[104] A 2011 NPR report claimed some of the people associated with this case were imprisoned
in a highly restrictive Communication Management Unit.[105]
130
Criminal contempt proceedings; house arrest; deportation

On June 26, 2008, he was indicted by a grand jury in the Eastern District of Virginia on two counts of
criminal contempt, for unlawfully and willfully refusing court orders that he testify as a grand jury witness
on October 16, 2007, and March 20, 2008.[106] On September 2, 2008, he was released from custody and
put under house arrest at his daughter Laila's residence in Northern Virginia, where he is being monitored
electronically while he awaits trial on criminal contempt charges.[9][107][108]
At a January 2009 hearing to schedule his trial, his attorneys filed documents saying Al-Arian "did
cooperate and answer questions on IIIT" for federal prosecutors. Attorneys alleged Virginia prosecutors are
"ultimately not interested in IIIT ... but want to revisit the Tampa trial."[10] In a motion filed on March 4,
2009, prosecutors in Virginia acknowledged that when Al-Arian took the plea deal in early 2006,
prosecutors in Tampa believed that it exempted him from testifying in other cases.[109] This affirms sworn
declarations submitted to the court by Al-Arian's Florida trial attorneys, Bill Moffitt[110] and Linda
Moreno.[111]
On March 9, 2010 Judge Leonie Brinkema postponed the criminal contempt trial, pending a motion by
defense attorneys to dismiss the charges in the case.[112] While under federal law, Al-Arian could not be
jailed for more than 18 months for civil contempt, the law does not have a time limit for criminal
contempt.[113] On June 27, 2014 Assistant U.S. Attorney Gordon D. Kromberg moved to dismiss the
indictment, but because the case has dragged on so long they decided to drop the case and begin
proceedings to deport Al-Arian.[114]
On February 4, 2015 Al-Arian was deported from the United States to Turkey. He was flown on a
commercial flight from Dulles International Airport from Fairfax, Virginia to Turkey. In a statement
released by his former attorney, Jonathan Turley, Al-Arian said in part, "After 40 years, my time in the U.S.
has come to an end." He added, But despite the long and arduous ordeal and hardships suffered by my
family, I leave with no bitterness or resentment in my heart whatsoever. In fact, Im very grateful for the
opportunities and experiences afforded to me and my family in this country, and for the friendships weve
cultivated over the decades. These are lifelong connections that could never be affected by distance..[115]
Personal life
He is married to Nahla Al-Najjar, and they have five children.[25] Nahla was born in 1961.[16] Nahla raised
$30,000 per year from 1990 to 1995 for blind and orphaned children in Palestine.[116] His son Abdullah AlArian was an intern for U.S. Representative David E. Bonior in 2001.[117] Al-Arian's eldest daughter, Laila
Al-Arian, is a producer for Al Jazeera English in Washington, DC, and a freelance journalist and contributor
to the Huffington Post[118] and The Nation.[119]
Film
131
USA vs. Al-Arian is an award-winning 2007 documentary film by Norwegian director Line Halvorsen about
Al-Arian and his family during and after his trial from his family's point of view, and a commentary on the
U.S. justice system under the Patriot Act.[120][121] The documentary was hosted by two MPs and screened in
the Norwegian parliament.[122]
Notes
1. Al-Najjar was again detained in November 2001 by Immigration and Naturalization Service (INS). He was held
in detention officially for overstaying his student visa in the 1980s. His supporters accused the government of
subverting civil liberties in the wake of the September 11 attacks. Al-Najjar was granted a two-week tourist visa
by Bahrain. But en route to Ireland, Bahrain reversed its decision to accept Al-Najjar. After negotiations, AlNajjar flew to Italy and then landed in Lebanon, which granted him a six-month visitor's visa beginning in
August 2002.
See also
Sami Al-Arian indictments and trial
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External links
FOX News transcript of O'Reilly interview (http://www.foxnews.com/story/0,2933,61096,00.html),
September 26, 2001
News Links and "Sami Al-Arian, in his words" quotations
(http://www.sptimes.com/2003/02/21/TampaBay/Sami_Al_Arian__in_his.shtml), St. Petersburg
Times, February 23, 2003
USA vs. Al-Arian official site in English (http://www.usavsalarian.com/) and Norwegian
(http://www.usamotalarian.no).
Anita Kumar, Al-Arian Demands USF Restore his Standing
(http://www.sptimes.com/2003/01/07/TampaBay/Al_Arian_demands_USF_.shtml) St. Petersburg
Times, January 7, 2003
Links to 20062007 trial coverage from the St. Petersburg Times
(http://www.sptimes.com/2005/webspecials05/al-arian/index.shtml)
Melva Underbakke and Paul Findley, Two Views: Sami Al-Arians Plea Bargain
(http://www.washington-report.org/archives/July_2006/0607032.html), Washington Report on Middle
East Affairs, July 2006
Exclusive Interview: Sami Al-Arian, Professor Who Defeated Controversial Terrorism Charges, is
Deported from U.S. (https://firstlook.org/theintercept/2015/02/05/sami-al-arian-charged-terrorismnever-convicted-deported-today-u-s/) The Intercept, 2015
Retrieved from "http://en.wikipedia.org/w/index.php?title=Sami_Al-Arian&oldid=660870076"

Categories: 1958 births Living people Muslim activists American people of Palestinian descent
Prisoners and detainees of the United States federal government Terrorism in the United States
People from Hillsborough County, Florida University
137 of South Florida faculty
North Carolina State University alumni Kuwaiti prisoners and detainees People from Cairo
Southern Illinois University Carbondale alumni American activists Palestinian expatriates in Kuwait
138
Sami Al-Arian indictments and trial

Sami Al-Arian indictments and trial began on February 20, 2003, the U.S. Department of Justice
announced that Al-Arian had been arrested as the alleged leader of the Palestine Islamic Jihad (PIJ) in the
U.S., and Secretary of the PIJ's central worldwide governing group (the "Shura Council").[1][2] It also
charged three others living in the U.S., as well as four outside the U.S.[1][2] These included Al-Arian's longtime top USF/WISE associate Ramadan Abdullah Shallah, who had been designated a Specially Designated
Terrorist by the U.S. in 1995, and was accused of being Secretary General of the PIJ.[1][2][3]
The PIJ was identified as an international terrorist organization, with cells throughout the world, that
supports jihad and martyrdom, responsible for the deaths of among others Americans Alisa Flatow (20 years
old) and Shoshana Ben-Yishai (16 years old).[1][2][4] In 1995 the PIJ, Syrian-based and largely financed by
Iran, had been designated a "Specially Designated Terrorist" by the U.S., and in 1997 it had been designated
a "foreign terrorist organization".[2][3][4][5][6]
A 50-count indictment returned by a federal grand jury in Tampa charged the defendants under the
Racketeer Influenced and Corrupt Organizations Act (RICO) with operating a racketeering enterprise from
1984 that engaged in violent activities, as well as: conspiracy within the U.S. to kill and maim persons
abroad, conspiracy to provide material support and resources to PIJ, conspiracy to violate emergency
economic sanctions, engaging in various acts of interstate extortion, perjury, obstruction of justice, and
immigration fraud.[1][2][4] The indictment alleged a ten-year conspiracy to support PIJ worldwide, help
solve internal PIJ disputes and financial problems, help disseminate PIJ claims it was responsible for
terrorist attacks in Israel, and raise funds within the U.S. for "violent jihad."[2] It alleged numerous PIJassociated terrorist acts, resulting in the murders of over 100 people in Israel and the Occupied
Territories.[1][2] It claimed that PIJ, ICP, and WISE operated together as an illegal enterprise.[2][4] It also
alleged that the defendants used USF, where some of them were teachers or students, as cover and as a
means to bring other PIJ members into the U.S., purportedly for academic meetings and conferences.[2][4]
Attorney General John Ashcroft said that Al-Arian and his co-defendants
played:
a substantial role in international terrorism. They are 'material supporters'
of foreign terrorist organizations. They finance ... and assist acts of terror.
Our message to them is clear: We make no distinction between those who
carry out terrorist attacks, and those who knowingly finance, manage, or
supervise terrorist organizations.[1]
Al-Arian told reporters: its all about politics, and his attorney labeled the
indictment a work of fiction.[7]
139
Attorney General
John Ashcroft
The indictment was later expanded into a 53-count superseding indictment in September 2004.[4] It charged
Al-Arian with: 1) conspiracy to commit racketeering; 2) conspiracy to murder or maim persons outside the
U.S.; 3) conspiracy to provide material support to a foreign terrorist organization (the PIJ); 4) conspiracy to
make and receive contributions of funds, goods, and services for the benefit of Specially Designated
Terrorists (the PIJ); 5) use of the mail or any facility in interstate or foreign commerce to promote unlawful
activity; 6) providing material support to a foreign terrorist organization; 7) money laundering; 8) attempt to
procure naturalization unlawfully; and 9) obstruction of justice.[4]
Contents
1 Trial
2 Guilty plea, pursuant to plea agreement
3 Sentencing
4 Civil and criminal contempt prosecutions; 2006-2014
4.1 Grand jury subpoenas, refusal to testify, civil contempt, and hunger strikes
4.2 Criminal contempt proceedings; house arrest
5 Rashad Hussein comments
6 References
7 External links
Trial
Al-Arian was tried with co-defendants Ghassan Ballut, Hatim Fariz, and Sameeh Hammoudeh in the United
States District Court for the Middle District of Florida in Tampa, beginning on June 6, 2005.[8] At trial, FBI
agent Kerry Myers testified that the PIJ had planned an attack inside the U.S., but that all information about
the plot was classified and he could not discuss it. Under cross-examination, Myers admitted that the PIJ
had never carried out an attack outside Israel and the "occupied territories." Myers also testified that during
its 10-year investigation of the defendants, the FBI intercepted 472,239 telephone calls on 18 tapped lines.
However, none involved any discussion of an attack against the U.S. or reflected advance knowledge of
attacks in the Middle East.[9] Furthermore, some of the conversations occurred before PIJ was designated a
Foreign Terrorist Organization in 1995.[10]
The five-month trial featured 80 witnesses and 400 transcripts of intercepted phone conversations and faxes.
At the end of the prosecution's case, Al-Arian's attorneys rested without offering a defense, and the trial
concluded on November 14, 2005.[8] On December 6, 2005, after 13 days of deliberations, the jury
acquitted Al-Arian on 8 of 17 counts.[8] It deadlocked on the 9 other counts,[8] with 10-2 favoring acquittal.
The jury deadlocked on what the prosecutors described as three of the most important four conspiracy
charges against Al-Arian, including the charge of conspiracy to provide services to the PIJ.[11] A codefendant also was acquitted on some charges and faced deadlocks on others, and two co-defendants were
acquitted of all charges. U.S. Justice Department officials said they were considering whether to retry AlArian and co-defendant Hatem Fariz on the jury deadlock charges, one of which carried a life sentence.[12]
140
Jurors had mixed reactions.[13] One who voted for acquittal said, "They have so little on [Al-Arian] that I'm
disappointed. Most of us think he gave in because he was so sick of being in jail."[13] But one of the few
jurors who believed Al-Arian was guilty on nine counts, causing a mistrial, said:
Like another person on the jury, I was convinced Mr. Al-Arian was still working with the PIJ
after it was illegal. He was a very smart man and knew how not to be obvious. For me, the
absence of evidence didn't mean there was no evidence. For me, it suggested a coverup, which
he admitted to, in the plea agreement.[13]
Guilty plea, pursuant to plea agreement

On February 28, 2006, Al-Arian signed a plea agreement in which he agreed to plead guilty to one count of
conspiracy to contribute services to or for the benefit of the PIJ, a Specially Designated Terrorist
organization, in violation of 18 U.S.C. 371.[5][14] In return, the U.S. Attorney: a) agreed to dismiss the
other eight remaining charges in the superseding indictment; b) agreed not to charge Al-Arian with any
other crimes known to the government at the time of the execution of the agreement; c) agreed not to enter
any recommendation as to the imposition or amount of a fine; d) agreed with Al-Arian that an appropriate
sentence would be 4657 months in prison; and e) covenanted that if no adverse information were received
suggesting such a recommendation to be unwarranted, the U.S. would recommend that Al-Arian receive a
sentence "at the low end of the applicable guideline range, as calculated by the Court".[5]
In the agreement, Al-Arian said that he was pleading guilty because he was "in fact" guilty.[5] Al-Arian
admitted knowing "that the PIJ achieved its objectives by, among other means, acts of violence."[15] As part
of the deal, Al-Arian agreed to be deported once his prison sentence ended.[5][11]
The plea agreement provided that it was "limited to the Office of the United States Attorney for the Middle
District of Florida and the Counterterrorism Section of the Department of Justice, and cannot bind other
federal, state, or local prosecuting authorities."[5][16] It also provided that it "constitutes the entire agreement
between the government and [Al-Arian] ... and no other promises, agreements, or representations exist or
have been made to [Al-Arian]".[5][16]
Attorney General Alberto Gonzales said:
We have a responsibility not to allow our nation to become a safe haven for those who provide
assistance to ... terrorists. Sami Al-Arian has already spent significant time behind bars, and
will now lose the right to live in the country he calls home as a result of his confessed criminal
conduct on behalf of the [PIJ], which is the same conduct he steadfastly denied in public
statements over the past decade.[11]
141
At the plea agreement hearing, U.S. Magistrate Thomas B. McCoun said, "if
you're satisfied you're guilty or you believe it's in your best interest to plead
guilty ... let me know that." Al-Arian replied, "I believe it's in my best interest
to enter a plea."[17]
The district court judge asked Al-Arian whether he had been promised
anything else by anyone to induce his guilty plea, and he said that he had
not.[16] The plea agreement was unsealed and accepted by Judge James S.
Moody on April 17, 2006.[11] The count carried a maximum sentence of five
years imprisonment, a $250,000 fine, and three years of supervised release.[5]
Al-Arian remained in custody pending his sentencing and deportation.
The deal came after 11 years of Federal Bureau of Investigation
investigations, wiretaps and searches, and three and a half years of trial
Attorney General
Alberto Gonzales
preparation, time Al-Arian spent in jail, most of it in solitary confinement.[17] Amnesty International said
Al-Arian's pre-trial detention conditions "appeared to be 'gratuitously punitive'", and that "the restrictions
imposed on Dr. Al-Arian appeared to go beyond what were necessary on security grounds and were
inconsistent with international standards for humane treatment.".[18]
Supporters of Al-Arian said the agreement was reached in part to end his family's suffering and to reunite
them.[15][19][20]
On July 25, 2006, Fariz pleaded guilty to one count of providing nonviolent services to associates of
Palestinian Islamic Jihad. He was sentenced to 37 months in prison. He was released on May 26, 2010.[21]
Sentencing
Judge Moody sentenced al-Arian to the maximum 57 months in prison and three years of supervised release
on May 1, 2006, and gave him credit for time served.[8] Prosecutors said al-Arian would serve the balance
of 19 months, and then be deported.
In his ruling, Moody harshly criticized al-Arian for doing nothing to stop suicide bombings perpetrated by
the PIJ. "I find it interesting that you praise this country in public," he said, "the one you called Great
Satan."[22] He continued:
You lifted not one finger. To the contrary, you laughed when you heard of the bombings... You
are a master manipulator. The evidence is clear in this case. You were a leader of the PIJ.[8][23]
Describing the PIJ suicide bombings, the judge said: "Anyone with even the slightest bit of human
compassion would be sickened. Not you, you saw it as an opportunity to solicit more money to carry out
more bombings."[22] Reacting to Al-Arian's contention that he had raised money for charities, Moody said:
"Your only connection to widows and orphans was that you create them."[24]
142
Civil and criminal contempt prosecutions; 2006-2014

Al-Arian was subpoenaed three times to testify in terrorism-related investigations before Virginia federal
grand juries between 2006 and 2008. Each time, he refused to testify. He challenged the initial subpoena in
four different federal courts, each of which held that he was in fact required to testify. He was imprisoned
for 13 months for civil contempt for failing to testify in compliance with the first subpoena. He is awaiting
trial as well for criminal contempt for his failure to testify in compliance with the second and third
subpoenas.
Grand jury subpoenas, refusal to testify, civil contempt, and hunger strikes
Subpoena
In May 2006, the U.S. District Court for the Eastern District of Virginia issued a subpoena to Al-Arian to
testify before a federal grand jury in Alexandria, Virginia, in an investigation into the alleged financing of
terror by the Herndon, Virginia-based International Institute of Islamic Thought (IIIT).[16][25] Homeland
Security agent David Kane described alleged ties between Al-Arian and IIIT in an affidavit that was
unsealed in 2003, saying that IIIT was once the largest contributor to a PIJ group run by Al-Arian.[25] Kane
also alluded to a letter from a leader of IIIT to Al-Arian saying he considered him and leaders of the
Palestinian resistance to be "a part of us and an extension of us."[26]
Refusal to testify
The subpoena was served on Al-Arian in October 2006.[16] He sought to quash it on the assertion that his
plea agreement prevented his being forced to testify before the Virginia grand jury.[16] He said the
government had agreed that he would not be required to cooperate with it in any manner, though that
specific agreement was not reflected in the written plea agreement.[16] In a verbal agreement that he says
appears in court transcripts, federal prosecutors agreed he would not have to testify in Virginia.[27]
Second, Al-Arian also said he refused to testify because he believed "his life would be in danger if he
testified."[25] Third, Al-Arian claimed he has no information that could further the investigation.[25] Fourth,
Al-Arian said he would not testify because he felt IIIT was inappropriately charged.[28] Finally, another
explanation for his not testifying was presented by his wife, who said:
My husband is a man of principle, and he will never turn into an informant. We admire him and
are proud of him. In our culture, as Palestinians, if a person becomes an informant for the
government, this is very shameful.[29]
When called before the grand jury on October 19, Al-Arian refused to answer questions about IIIT.[30]
Virginia District Court, civil contempt, and Fourth Circuit Court of Appeals
143
A Virginia District Court held that he had no legal basis to refuse to testify. The court held him in civil
contempt, and imprisoned him on November 16, 2006, for contempt of court, with the days served for civil
contempt not counting towards the days of imprisonment he had remaining on his guilty conspiracy plea.[16]
He appealed the Virginia District Court decision to the Fourth Circuit Court of Appeals, which affirmed the
lower court's ruling.[16] Thirteen months later, on December 14, 2007, the Virginia District Court lifted its
contempt order, starting the clock ticking again on his days-served on his conspiracy guilty plea
sentence.[16]
Florida District Court; hunger strike
A Florida District Court also held that the plea agreement was not ambiguous, and did not prevent the
government from issuing a subpoena requiring him to testify before a grand jury.[16] Al-Arian, who is
diabetic, began a 60-day hunger strike on January 22, 2007, to "protest continued government
harassment."[25][31] By March 20, 2007, the 6-foot-tall (1.8m) Al-Arian had gone from 202 to 149 pounds
(92 to 68kg).[27]
Eleventh Circuit Court of Appeals
Al-Arian appealed the Florida District Court decision to the Eleventh Circuit Court of Appeals, which
upheld the lower court on January 25, 2008.[16] It pointed out that the plea agreement did not contain any
mention of whether Al-Arian would be compelled to testify in front of a grand jury in the future.[16] It also
noted that the agreement said it reflected all promises and agreements between Al-Arian and the
government, and that this accorded with Al-Arian's statement, when questioned by the trial court judge, that
there were no promises or inducements made to him other than those reflected in the written agreement.[16]
Furthermore, the court observed that the plea agreement only spoke to the issue of the government
prosecuting Al-Arian for crimes known to the office at the time of the agreement, but did not immunize AlArian from future subpoenas.[16] The court therefore held the plea agreement to be clear, unambiguous, and
to not grant Al-Arian immunity from the grand jury subpoena.[16] The Justice Department issued its third
subpoena later that month.[28]
Professor Robert Chesney, of Wake Forest University Law School, said:
It is certainly not uncommon for the government to expect a defendant to testify in the wake of
a plea agreement. In this instance, the agreement is silent on the question, and the court of
appeals agrees with the government that this leaves the door open to subpoena his testimony.
Hunger strike
In March 2008 he began another hunger strike, to protest his subpoena.[28] He ended his hunger strike two
months later.[32]
Criminal contempt proceedings; house arrest

144
On June 26, 2008, he was indicted by a grand jury in the Eastern District of Virginia on two counts of
criminal contempt, for unlawfully and willfully refusing court orders that he testify as a grand jury witness
on October 16, 2007, and March 20, 2008.[33] On September 2, 2008, he was released from custody and put
under house arrest at his daughter Laila's residence in Northern Virginia, where he is being monitored
electronically while he awaits trial on criminal contempt charges.[34][35][36]
At a January 2009 hearing to schedule his trial, his attorneys filed documents saying Al-Arian "did
cooperate and answer questions on IIIT" for federal prosecutors. Attorneys alleged Virginia prosecutors are
"ultimately not interested in IIIT but want to revisit the Tampa trial."[35] In a motion filed on March 4,
2009, prosecutors in Virginia acknowledged that when Al-Arian took the plea deal in early 2006,
prosecutors in Tampa believed that it exempted him from testifying in other cases.[37] This affirms sworn
declarations submitted to the court by Al-Arian's Florida trial attorneys, Bill Moffitt[38] and Linda
Moreno.[39]
On March 9, Judge Leonie Brinkema postponed the criminal contempt trial, pending a motion by defense
attorneys to dismiss the charges in the case.[40] While under federal law, Al-Arian could not be jailed for
more than 18 months for civil contempt, the law does not have a time limit for criminal contempt.[41]
Rashad Hussein comments

Rashad Hussain's comments on Sami Al-Arian became the subject of coverage in the media after Rashad
Hussain was appointed United States Special Envoy to the Organisation of the Islamic Conference in
February 2010. The controversy concerned remarks made by Hussain in 2004, criticizing procedural issues
in the U.S. terror prosecution of Sami Al-Arian.[42] He "drew sharp criticism from conservatives for calling
the prosecution of some terror suspects 'politically motivated,' a comment both Hussain and The White
House denied."[43] The Council on Foreign Relations stated that, "The controversy led to a larger question
of whether the United States should engage the Organization of Islamic Conference diplomatically."[44]
In 2004, while a student at Yale, Hussain attended a Muslim Students Association conference in Chicago
and participated in a panel discussion on civil rights. Laila Al-Arian, a daughter of Sami Al-Arian, was also
on the panel. During the discussion, Hussain made critical statements about the US terror prosecution of
Sami Al-Arian and other terrorism suspects, such as Chaplain James Yee and Brandon Mayfield.[20]
According to recordings obtained by Politico in 2010, Hussain referred to the cases as examples of
"politically motivated prosecutions." [20] He was careful to say that he was not offering an opinion on
whether Al-Arian was guilty of the charges that he was a top leader of the U.S. branch of the Palestinian
Islamic Jihad, a "specially designated terrorist" organization.[20][21] In 2006, Al-Arian pleaded guilty to
one charge of conspiracy to help the Palestinian Islamic Jihad, was sentenced to 57 months in prison (in
other words, time served), and agreed to be deported following his prison term.[21][22]
Opinions differ on whether the recording shows that Hussain using the term "prosecutions," or
"persecutions," and whether he said that the prosecutions were "used to squash political dissent," quotations
from a 2004 story that Hussain denied making.[23] After the controversy over the statements, Press
Secretary Robert Gibbs expressed continued White House confidence in Hussain, noting, "This is an
145
individual that has written extensively on why some have used religious devices like the Qur'an to justify
this [terrorism] and why that is absolutely wrong. And has garnered support from both the left and the right
so we obviously have confidence.[45]
Originally, journalist Shannon Bream of Fox News reported that The White House attributed the
"controversial remarks defending al-Arian" to Laila al-Arian.[42] Later, Jake Tapper, the Senior White
House Correspondent for ABC News, reported that the "controversy was all the more confusing because the
remarks were reported in the WRMEA in 2004, but the editor, Delinda Hanley, later removed the comments
from the Web site, though she didn't recall why. In an email to Politico, Delinda C. Hanley, editor of the
WRMEA, wrote that "Laila Al-Arian said the things attributed to Rashad Hussain, and an intern who
attended the event and wrote up the article made an error, which was corrected on our Web site by deleting
the two quotes in their entirety."
Later, in the April 2010 edition of WRMEA, Hanley wrote:
Four or five years after the above item was published, this writer received a phone call or a
phone message, I honestly cant remember, on a date I cant recallwe get so many calls Im
lucky if I can remember a conversation a week later!saying Hussain had been misquoted in
Kandils article. I dont remember if it was a misquote or misattribution and, since Kandil had
left the magazine years ago, I did not contact her. But I do remember asking our webmaster to
remove the quote in questionbecause this sequence of events was unusual. Normally we
publish a correction or objection as a letter to the editor (see, respectively, p.6 of this issue and
the letter from Daniel Pipes on p.3 of our October 2001 issue). Years after the fact, however,
that seemed pointless. Now that oversight has come back to haunt meand, more importantly,
hurt Obamas envoy pick.[46]
In The Washington Post article titled Rashad Hussain, a Muslim and new U.S. envoy, is bridge between two
worlds, Hussain is quoted as saying that his "extensive writings on this topic make it clear that I condemn
terrorism unequivocally in all its forms. I'd be happy to put that against one sentence from 2004 that I
believe was taken out of context."[47] In his May 11, 2010 interview with Asharq Al-Awsat, Hussain was
asked, "During your studies in law college in University of Yale you have criticize Sami Al-Aryans trial
and you have considered it represents a kind of politically motivated prosecution. Do you think that the
courts in U.S. still suffer from identification of terrorism with the Muslims?" Hussain responded, "You
know in that case that I said very clearly on the panel that I wasnt commenting on any of the specific
allegations on him but I was making a comment about the process that was used in that case."[48]
References
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with Racketeering and Conspiracy to Provide Support to Terrorists"
(http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_Al-Arian_dojprind.pdf) (PDF). Press Release.
2. "U.S. v. Al-Arian; Indictment; U.S. District Court, Middle District of Florida, Tampa Division"
(http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_Al-Arian_Indictment.pdf) (PDF). February 19,
2003. Retrieved March 8, 2010.
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3. Mintz, John (June 5, 2005). "Trial to Reveal Reach Of U.S. Surveillance" (http://www.washingtonpost.com/wpdyn/content/article/2005/06/04/AR2005060401319_2.html). The Washington Post. Retrieved March 8, 2010.
4. "U.S. v. Al-Arian; Superseding Indictment" (http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_AlArian_SpcIndictment.pdf) (PDF). September 2004. Retrieved March 8, 2010.
5. "Plea Agreement; U.S. v. Al-Arian" (http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_AlArian_pleaagr.pdf) (PDF). February 28, 2006. Retrieved March 8, 2010.
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Look Into Possible Terrorism Links" (http://www.nytimes.com/2002/07/23/us/traces-terror-money-trailprofessor-s-activism-leads-investigators-look-into.html?pagewanted=1). The New York Times. Retrieved
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7. Isikoff, Michael (March 3, 2003). "Hiding in Plain Sight: Did a Muslim professor use activism as a cloak for
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(PDF). Press Release. Retrieved March 8, 2010.
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(http://www.tampatrib.com/FloridaMetro/MGBHQF7YQCE.html). Tampa Bay Tribune (Media General Inc.).
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(http://www.sptimes.com/2006/04/23/Hillsborough/In_his_plea_deal__wha.shtml), St. Petersburg Times, April
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12. Meg Laughlin, Jennifer Liberto and Justin George, 8 times, Al-Arian hears 'Not guilty'
(http://www.sptimes.com/2005/12/07/Tampabay/8_times__Al_Arian_hea.shtml), St. Petersburg Times,
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13. Laughlin, Meg (April 23, 2006). "In his plea deal, what did Sami Al-Arian admit to?; Buried within legalese: an
admission that he continued to aid relatives and colleagues associated with PIJ after it was designated a terrorist
group." (http://www.sptimes.com/2006/04/23/Hillsborough/In_his_plea_deal__wha.shtml). St. Petersburg Times.
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14. "Hillsborough: Plea deal overcame the discord"
(http://www.sptimes.com/2006/04/24/Hillsborough/Plea_deal_overcame_th.shtml). Sptimes.com. 2006-04-24.
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(http://www.defenddemocracy.org/in_the_media/in_the_media_show.htm?doc_id=367467), Tampa Tribune,
April 18, 2006
16. U.S. Court of Appeals for the Eleventh Circuit (January 25, 2008). "U.S. v. Al-Arian"
(http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_Al-Arian_11thcircappeals.pdf) (PDF). Appeal
from the U.S. District Court for the Middle District of Florida. Retrieved March 8, 2010.
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(http://www.sptimes.com/2006/04/24/Hillsborough/Plea_deal_overcame_th.shtml), St. Petersburg Times, April
24, 2006.
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International" (http://web.amnesty.org/library/Index/ENGAMR511102003?open&of=ENG-360).
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(http://www.sptimes.com/2006/05/01/State/Al_Arian_gets_18_more.shtml), Associated Press, Published May 1,
2006
20. Al-Arian's plea ends an ordeal; He agreed to a single count of conspiracy to end his family's turmoil, his attorney
says. (http://www.sptimes.com/2006/04/18/Tampabay/Al_Arian_s_plea_ends_.shtml), St. Petersburg Times,
April 18, 2006.
21. http://www.sptimes.com/2006/07/26/Tampabay/Al_Arian_associate_ge.shtml
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22. Steinhauer, Jennifer (May 1, 2006). "Palestinian to Be Imprisoned Before Deportation"

(http://www.nytimes.com/2006/05/01/us/01cnd-islamic.html?
hp&ex=1146542400&en=19620dd1d723e57c&ei=5094&partner=homepage). The New York Times. Retrieved
March 9, 2010.
23. "Ex-professor gets over 4 years in Florida Jihad case" (http://news.oneindia.in/2006/05/01/ex-professor-getsover-4-years-in-florida-jihad-case-1146512148.html), Reuters, May 1, 2006
24. Stacy, Mitch, "Prof. Gets 18 Months More in Terror Case", The Washington Post, May 1, 2006, accessed March
8, 2010 (http://www.washingtonpost.com/wp-dyn/content/article/2006/05/01/AR2006050100379.html)
25. Witness Is Silent in Terror Probe: Ex-Professor Says Grand Jury Testimony Would Endanger Him.
(http://www.washingtonpost.com/wp-dyn/content/article/2006/11/13/AR2006111301205.html) Washington Post.
November 14, 2006.
26. Lichtblau, Eric, "Court Papers Show Charges That Group Aided Terrorists", The New York Times, October 18,
2003, accessed March 8, 2010 (http://www.nytimes.com/2003/10/18/us/court-papers-show-charges-that-groupaided-terrorists.html)
27. Gaunt Al-Arian shocks family
(http://www.sptimes.com/2007/03/20/Hillsborough/Gaunt_Al_Arian_shocks.shtml) by Meg Laughlin. St.
Petersburg Times. March 20, 2007.
28. Fears, Darryl (March 22, 2008). "Refusal Keeps Terrorism Convict in Prison; Former Professor Fights Attempts
to Force His Testimony Against Muslim Charities" (http://www.washingtonpost.com/wpdyn/content/article/2008/03/21/AR2008032102775.html). The Washington Post. Retrieved March 9, 2010.
29. Markon, Jerry, "Ex-Professor's Contempt Citation Prolonged", The Washington Post, June 22, 2007, accessed
March 8, 2010 (http://www.washingtonpost.com/wp-dyn/content/article/2007/06/21/AR2007062102032.html)
30. "Florida Professor in Prison for Terror Ties on Hunger Strike to Protest 'Harassment'", Fox News, January 24,
2010, accessed March 11, 2010 (http://www.foxnews.com/story/0,2933,246380,00.html)
31. Family says inmate's hunger strike not near end. (http://www.wilmingtonstar.com/apps/pbcs.dll/article?
AID=/20070217/NEWS/702170359/-1/State) Wilmington Star (NC). February 17, 2007.
32. Democracy Now! | Al-Arian Enters 19th Day of Hunger Strike in Protest of "Government Harassment"
(http://www.democracynow.org/2008/3/21/al_arian_enters_19th_day_of)
33. U.S. v. Al-Arian, Indictment, U.S. District Court for the Eastern District of Virginia, June 26, 2008, accessed
March 8, 2010
(http://www.nefafoundation.org/miscellaneous/FeaturedDocs/US_v_AlArian_IndictmentContempt.pdf)
34. Joseph Goldstein, Al-Arian Is Freed, but More Charges Await (http://www.nysun.com/national/al-arian-is-freedbut-more-charges-await/85081/), New York Sun, September 3, 2008.
35. Judge sets trial for Sami Al-Arian on criminal contempt charge
(http://www.tampabay.com/news/courts/criminal/article968358.ece), Tampa Tribune, January 17, 2009.
36. "Ex-Professor in Palestinian Case Is Freed After 5 Years", The Washington Post, September 3, 2008, accessed
March 8, 2010 (http://www.washingtonpost.com/wp-dyn/content/article/2008/09/02/AR2008090202973.html)
37. Click here to post a comment. "Federal judge says Sami Al-Arian plea deal does matter - St. Petersburg Times"
(http://www.tampabay.com/news/courts/criminal/article981644.ece). Tampabay.com. Retrieved 2010-03-16.
38. William B. Moffit Declaration on Plea Deal (http://www.freesamialarian.com/index.php?
option=com_content&view=article&id=295:william-b-moffit-declaration-on-plea-deal&catid=31:documents-areleases-)
39. Linda Moreno Declaration on Plea Deal (http://www.freesamialarian.com/index.php?
option=com_content&view=article&id=296:&catid=31:documents-a-releases-)
40. [1] (http://www.miamiherald.com/news/florida/AP/story/940573.html)
41. Gerstein, Josh, "Al-Arian Indicted for Refusal To Testify in Charities Cases", New York Sun, June 27, 2008,
accessed March 11, 2010 (http://www.nysun.com/foreign/al-arian-indicted-for-refusal-to-testify/80821/)
42. Bream, Shannon (February 16, 2010). "Obama's Islamic Envoy Quoted Defending Man Charged With Aiding
Terrorists" (http://www.foxnews.com/politics/2010/02/16/obamas-islamic-envoy-disputes-report-quotingdefending-terror-convict/). Fox News. Retrieved February 22, 2010.
43. Goler, Wendell (April 27, 2010). "Obamas New OIC Envoy Defended Activist Who Aided Terrorist Group"
(http://whitehouse.blogs.foxnews.com/2010/04/27/president-obamas-relationship-with-american-muslims-is-aquiet-oneon/). Fox News. Retrieved April 28, 2010.
148
44. Johnston, Toni (June 29, 2010). "The Organization of the Islamic Conference"
(http://www.cfr.org/publication/22563/organization_of_the_islamic_conference.html?
breadcrumb=%2Fpublication%2Fby_type%2Fbackgrounder). Council on Foreign Relations. Retrieved July 2,
2010.
45. Gerstein, Josh (February 22, 2010). "W.H. affirms confidence in Islam envoy"
(http://www.politico.com/blogs/joshgerstein/0210/WH_affirms_confidence_in_Islam_envoy_Hussain.html). The
Politico. Retrieved February 22, 2010.
46. Hanley, Delinda (April 2010). "Smear Campaign Targets Rashad Hussain, Obamas Special Envoy to OIC"
(http://wrmea.com/component/content/article/349-2010-april/8805-smear-campaign-targets-rashad-hussainobamas-special-envoy-to-oic.html). Washington Report on Middle Eastern Affairs. Retrieved April 28, 2010.
47. Wilson, Scott (March 1, 2010). "Rashad Hussain, a Muslim and new U.S. envoy, is bridge between two worlds"
Post. Retrieved March 23, 2010.
48. Nafa, Ibrahim (May 14, 2010). "Interview with US Envoy to the OIC Rashad Hussain"
(http://aawsat.com/english/news.asp?section=1&id=20943). Asharq Al-Awsat. Retrieved May 16, 2010.
External links
Links to 2006-2007 trial coverage from the St. Petersburg Times
(http://www.sptimes.com/2005/webspecials05/al-arian/index.shtml)
Retrieved from "http://en.wikipedia.org/w/index.php?title=Sami_AlArian_indictments_and_trial&oldid=615330097"
Categories: Terrorism in the United States
This page was last modified on 2 July 2014, at 18:40.
149
Smith v. Maryland
Smith v. Maryland, 442 U.S. 735 (1979),[1] was a

States held that the installation and use of the pen
register was not a "search" within the meaning of
the Fourth Amendment, and hence no warrant was
required. The pen register was installed on
telephone company property at the telephone
company's central offices. In the Majority opinion,
Justice Blackmun rejected the idea that the
installation and use of a pen register constitutes a
violation of the "legitimate expectation of privacy"
since the numbers would be available to and
recorded by the phone company anyway.
Contents
1 Background
2 Court Opinion
3 See also
4 References
5 Further reading
Smith v. Maryland

Full case Michael Lee Smith v. Maryland
name
(more)
99 S. Ct. 2577; 61 L. Ed. 2d 220; 1979 U.S.
LEXIS 134
Prior
Cert. to the Court of Appeals of Maryland
history
Court membership
Chief Justice
Warren E. Burger
Associate Justices
William J. Brennan, Jr. Potter Stewart
Byron White Thurgood Marshall
Harry Blackmun Lewis F. Powell, Jr.
William Rehnquist John P. Stevens
Background
In Katz v. United States (1967), the United States
Supreme Court established its "reasonable
expectation of privacy" test. It overturned
Olmstead v. United States and held that a bugging
was a constitutionally-protected search, because
there was a reasonable expectation that the
communication would be private. The government
was then required to get a warrant to execute a
search using a bug.
Case opinions
Majority Blackmun, joined by Burger, White, Rehnquist,
Stevens
Dissent Stewart, joined by Brennan
Dissent Marshall, joined by Brennan
Powell took no part in the consideration or decision of the case.
In Smith v. Maryland, the Supreme Court held that a pen register is not a search because the "petitioner
voluntarily conveyed numerical information to the telephone company." Since the defendant had disclosed
the dialed numbers to the telephone company so they could connect his call, he did not have a reasonable
expectation of privacy in the numbers he dialed. The court did not distinguish between disclosing the
numbers to a human operator or just the automatic equipment used by the telephone company.
150
The Smith decision left pen registers completely outside constitutional protection. If there were to be any
privacy protection, it would have to be enacted by Congress as statutory privacy law.
Court Opinion
The justices that held the decision argued that:
Given a pen register's limited capabilities, therefore, petitioner's argument that its
installation and use constituted a "search" necessarily rests upon a claim that he had a
"legitimate expectation of privacy" regarding the numbers he dialed on his phone.
This claim must be rejected. First, we doubt that people in general entertain any actual
expectation of privacy in the numbers they dial. All telephone users realize that they must
"convey" phone numbers to the telephone company, since it is through telephone company
switching equipment that their calls are completed. All subscribers realize, moreover, that
the phone company has facilities for making permanent records of the numbers they dial,
for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen
registers and similar devices are routinely used by telephone companies "for the purposes
of checking billing operations, detecting fraud, and preventing violations of law." United
States v. New York Tel. Co., 434 U.S., at 174 -175.
Further it was argued that is not unreasonable to assume that the telephone company would use electronic
equipment to keep records of all telephone numbers dialed.
Electronic equipment is used not only to keep billing records of toll calls, but also "to keep
a record of all calls dialed from a telephone which is subject to a special rate structure."
The argument was made that since telephone numbers are needed to connect your calls that this information
cannot be considered private as telephone companies would have access to this information in order to
connect your call.
Telephone users, in sum, typically know that they must convey numerical information to
the phone company; that the phone company has facilities for recording this information;
and that the phone company does in fact record this information for a variety of legitimate
business purposes. Although subjective expectations cannot be scientifically gauged, it is
too much to believe that telephone subscribers, under these circumstances, harbor any
general expectation that the numbers they dial will remain secret.
See also
151
References
1. 442 U.S. 735 (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=442&page=735)
Full text of the opinion courtesy of Findlaw.com.
Further reading
Applegate, John; Grossman, Amy (1980). "Pen Registers after Smith v. Maryland". Harv. C.R.-C.L. L.
Rev. 15 (3): 753778.
Andrea Peterson from the Washington Post's The Switch in an article named "The NSA says it
obviously can track locations without a warrant. Thats not so obvious.
(http://www.washingtonpost.com/blogs/the-switch/wp/2013/12/04/the-nsa-says-it-obviously-cantrack-locations-without-a-warrant-thats-not-so-obvious/)" on December 4, 2013 on the background of
the case.
Retrieved from "http://en.wikipedia.org/w/index.php?title=Smith_v._Maryland&oldid=644797844"

Categories: United States Supreme Court cases United States Fourth Amendment case law
Privacy of telecommunications United States communications regulation case law
United States privacy case law Legal history of Maryland 1979 in United States case law
1979 in Maryland United States Supreme Court cases of the Burger Court
United States Supreme Court stubs
152
HOME/ISSUES & REGIONS/COURT CASES/TABBAA V. CHERTOFF (CHALLENGING DHS POLI...
Tabbaa v. Chertoff (Challenging DHS policy or practice

of detaining, interrogating Americans returning from
Islamic conference)
E.D.N.Y., Index No. 05 Civ. 1918 (direct)
This case challenged a federal policy that targeted thousands of people who attended Islamic
conferences taking place outside the United States in December 2004 for a special terrorism-screening
process. The policy authorizes border agents to detain and interrogate American citizens returning to
the U.S. from Islamic conferences, and to enter the names and information of these citizens into a
federal database.
Organized by college students, the Reviving the Islamic Spirit (RIS) Conference is a mainstream
cultural and religious gathering that advocates peace, tolerance, and unity. The plaintiffs in this case
attended the December 2004 RIS Conference, held at the Toronto Skydome, which featured speakers,
included religious activities, and was endorsed by prominent politicians. The plaintiffs activities at the
conference were entirely lawful, and nothing about those activities would provide any basis for
suspecting the plaintiffs of unlawful conduct. As happened with dozens of other RIS Conference
participants, the plaintiffs were singled out by U.S. Customs and Border Protection (CBP) agents.
Although the plaintiffs are American citizens and showed valid identification, each was detained at the
U.S.-Canadian border for several hours before being released. They were frisked, interrogated,
photographed and fingerprinted for entry into CBP and other federal databases.
On April 20, 2005, the NYCLU, ACLU and the Council on American-Islamic Relations filed a suit
against the Department of Homeland Security (DHS), claiming that by implementing a policy
authorizing such actions, the DHS violated the plaintiffs rights under the First and Fourth
Amendments to the U.S. Constitution and under the Religious Freedom Restoration Act. The suit
sought to enjoin the defendants from detaining, interrogating, fingerprinting, and photographing U.S.
citizens who are Muslim and are returning to the country after attending religious conferences. The suit
also sought an order to expunge or destroy all information, fingerprints, or photographs that were
unlawfully obtained from the plaintiffs during their detention.
In December 2005, both parties moved for summary judgment. On Dec. 21, 2005, the District Court
ruled that the plaintiffs First and Fourth Amendment rights were not violated and granted the
defendants motion for summary judgment and dismissed the plaintiffs case. The NYCLU filed a notice
of appeal to the U.S. Court of Appeals, Second Circuit, on Jan. 4, 2006.
Oral argument was heard on April 19, 2007. On Nov. 26, 2007, the Second Circuit affirmed the District
Courts grant of summary judgment to the defendants. In doing so, it ruled that the challenged policy
was subject to strict scrutiny, rejecting the defendants contention that border detentions were
governed exclusively by a very relaxed Fourth Amendment standard. Nonetheless, the court held that
the policy met heightened scrutiny because it was sufficiently tailored to a government concern that
terrorists might attend the Toronto conference.
Attorneys involved in this case included Chris Dunn, Udi Ofer, Arthur Eisenberg, Donna Lieberman,
Michael Wishnie; Catherine Kim, Corey Stoughton (NYCLU and ACLU); Arsalan Iftikhar, Khurrum
Wahid (CAIR)
Share this:
153
Status:
Closed
FreedomofSpeechandReligion
New York Civil Liberties Union|125 Broad Street, New York, NY 10004|Phone 212-607-3300|Privacy
Policy|UserAgreement
154
LibertyandSecurity
Trials related to the September 11 attacks

This page lists trials related to the September 11, 2001 terrorist attacks.
Contents
1 Zacarias Moussaoui
2 Mounir El Motassadeq
3 Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Mustafa Ahmad al-Hawsawi, Ali Abd al-Aziz
Ali and Walid Bin Attash
3.1 Possible guilty plea
3.2 Transfer of the Case to a Civilian Court
3.3 Transfer of the case back to a military commission
4 References
5 External links
Zacarias Moussaoui
Zacarias Moussaoui was in jail in Minnesota when the September 11 attacks unfolded. On December 11,
2001, Moussaoui was indicted by a federal grand jury in United States District Court for the Eastern District
of Virginia on six federal charges: conspiracy to commit acts of terrorism transcending national boundaries,
conspiracy to commit aircraft piracy, conspiracy to destroy aircraft, conspiracy to use weapons of mass
destruction, conspiracy to murder United States employees, and conspiracy to destroy property.[1] The
indictment of Zacarias Moussaoui named as unindicted co-conspirators Ramzi Bin al-Shibh and Mustafa alHawsawi, among others, for their role in the attack "to murder thousands of innocent people in New York,
Virginia and Pennsylvania."
On January 12, 2002, Moussaoui refused to enter any plea to the charges and so Judge Leonie Brinkema
entered pleas of not guilty. A hearing was held on April 22, 2002, to determine his right to selfrepresentation, for by then Moussaoui had declined the assistance of his court-appointed attorneys, and
asked to defend himself. At another hearing on June 13, 2002, Brinkema deemed him competent to defend
himself and allowed the case to move forward. However, Moussaoui later requested the occasional
assistance of attorneys to help him with technical issues.
Moussaoui admitted his involvement with al-Qaeda, but claimed he was not involved in the 9/11 attacks.
Rather, he claimed that he was preparing for a separate attack. Khalid Sheikh Mohammed had earlier told
investigators that Moussaoui met with him prior to September 11, but that he, Mohammed, chose not to use
him. No evidence directly linking Moussaoui to the 9/11 attacks has yet been released.
The trial highlighted a tension in the United States between the judiciary and national security. Moussaoui
made requests for access to confidential documents and the right to call captive al-Qaeda members as
witnesses, notably bin al-Shibh, Khalid Shaikh Mohammed, and Mustafa Ahmed al-Hawsawi. Both requests
155
were claimed by prosecutors to be potential threats to national security. Brinkema denied the motion to
access confidential documents, although Moussaoui was permitted to use several al-Qaeda prisoners as
witnesses.
Brinkema put the death penalty "off limits" on October 2, 2003, in reply to government defiance of her
order to provide access to Moussaoui's witnesses. The Fourth Circuit Court of Appeals reversed the
Brinkema ruling, holding that the US government could use summaries of interviews/interrogations of these
witnesses. On March 21, 2005, the United States Supreme Court, without comment, declined to hear
Moussaoui's pre-trial appeal of the Fourth Circuit's decision, returning the case to Brinkema.
On April 22, 2005, in one of the court sessions near the end of that phase of the proceedings, Moussaoui
surprised the whole audience by pleading guilty to all charges, while at the same time denying having any
intention to produce a massacre like 9/11. He said that it was not his conspiracy, and that he intended to free
Sheikh Omar Abdel-Rahman. According to Moussaoui, his master plan was to hijack a Boeing 747-400,
since the plane is one of a few that could reach Afghanistan from the US without any intermediate stops.
On February 6, 2006, Moussaoui shouted "I am al-Qaeda. They do not represent me; they are Americans,"
referring to his attorneys while being escorted from the courtroom in front of 120 potential jurors.[2]
In March 2006, during the Moussaoui trial, several premises made headlines, including FBI agents stating
that the bureau was aware, years before the attacks in 2001, that al-Qaeda planned to use planes to destroy
important buildings,[3] and Brinkema's decision to consider dismissal of the death penalty. Brinkema
announced her decision in response to a violation by the attorney for the Transportation Security
Administration, Carla Martin, of a pretrial order barring witnesses from exposure to any opening statements
or trial testimony. Martin had e-mailed seven Federal Aviation Administration officials describing opening
statements of the prosecution and commentary on government witnesses from the start of the testimony,
effectively 'coaching the witnesses'.[4] Brinkema said, "In all the years I've been on the bench, I have never
seen such an egregious violation of a rule on witnesses," and described the situation as a "significant error
by the government affecting the... integrity of the criminal justice system of the United States in the context
of a death case." However, days later, under significant media attention, Brinkema decided not to dismiss
the case, and instead ruled that witnesses could not testify and the government would be allowed to continue
to seek the death penalty.[5]
On March 27, 2006, Moussaoui testified that he and "shoe bomber" Richard Reid had planned to crash a
hijacked airplane into the White House in the September 11 attacks. No direct connection between
Moussaoui and Reid had ever before been alleged, and this testimony contradicted earlier testimony by
Moussaoui that he had been intended for an operation after September 11. When asked why he had
previously lied, he stated that "You're allowed to lie for jihad. You're allowed any technique to defeat your
enemy."[6][7] There has been commentary in the mainstream media that Moussaoui's preference to die as an
identified 9/11 plotter rather than receive a life sentence as a member of an unrealized scheme throws doubt
on his self-admitted connection to 9/11.[8][9][10]
Since Moussaoui was in jail in Minnesota when the September 11 attacks unfolded in seeking a death
sentence, prosecutors were required to prove that he "intentionally participated in an act... and the victim
died as a direct result of the act." Moussaoui admitted he knew about the attacks and did nothing to stop
them.
156
Having entered a guilty plea, Moussaoui was eligible for the death penalty. Germany said it would not
release evidence against Moussaoui unless the US promised not to seek death as punishment. On April 27,
2005, French Justice Minister Dominique Perben said, "When France gave elements of information about
Mr Moussaoui to the American justice, I obtained a written engagement of the United States not to use these
elements to require or execute the death penalty."[11]
On March 13, 2006, Brinkema recessed the death-penalty case against Moussaoui because of a breach
against the rules on witnesses. Seven FAA officials were previously sent emails by TSA attorney Carla
Martin outlining the prosecution's opening statements and providing commentary on government witnesses
from the first day of testimony. Martin was placed on administrative leave over the incident and may face
contempt of court charges. On March 14, 2006, Brinkema ruled that the prosecution could continue to seek
the death penalty against Moussaoui, but could not use key witnesses coached by Martin. On April 3, 2006,
the jury in his case decided that Moussaoui was eligible for the death penalty.
At Moussaoui's sentencing trial, FBI agent Greg Jones testified that prior to the attacks, he urged his
supervisor, Michael Maltbie, "to prevent Zacarias Moussaoui from flying a plane into the World Trade
Center." Maltbie had refused to act on 70 requests from another agent, Harry Samit, to obtain a warrant to
search Moussaoui's computer.[12]
On May 3, 2006, the jury reached a verdict: that Moussaoui be sentenced to life in prison without the
possibility of parole. Moussaoui was sentenced to six consecutive life terms on May 4,[13] as Judge
Brinkema expressed her belief that the sentence was an appropriate one, inasmuch as it would deprive
Moussaoui of "martyrdom in a great big bang of glory" and of the "chance to speak again", after Moussaoui
entered the courtroom proclaiming his victory and asserting that the United States would "never get Osama
bin Laden". As he was leaving the courtroom he said, "America, you lost and I won." And he clapped his
hands twice. A single juror saved Moussaoui from death. The foreman of the 12-person federal jury told The
Washington Postthat the panel voted 11-1, 10-2 and 10-2 in favor of the death penalty on the three charges
for which Moussaoui was eligible for execution.[1] (http://www.washingtonpost.com/wpdyn/content/article/2006/05/11/AR2006051101884.html) A unanimous vote on any one of the three
terrorism charges was required to return a death sentence.
On May 8, 2006, Moussaoui filed papers with the federal court in Alexandria, Virginia requesting to
withdraw his guilty plea, stating that his earlier claim of participation in the September 11 plot was a
"complete fabrication." He said that he was "extremely surprised" that he was not sentenced to death. "I now
see that it is possible that I can receive a fair trial even with Americans as jurors," he said.[14] However,
federal sentencing rules forbid pleas to be withdrawn after a sentence has already been executed, and
Moussaoui had already waived his rights to appeal.
On May 13, 2006, a group of US marshals ordered Moussaoui out of his holding cell in Alexandria,
Virginia and flew him, via Conair, from Virginia to Colorado to begin serving his sentence at the supermax
United States Penitentiary Administrative Maximum Facility, located in Florence, Colorado.[15] The facility
- considered the most secure federal penitentiaryis called the "Alcatraz of the Rockies". He is federal
prisoner number 51427-054.[16]
On July 31, 2006, the 1,202 exhibits presented during the case of United States v. Zacarias Moussaoui were
posted online,[17] marking the first time the exhibits of a criminal case in US courts were so published.
157
On November 20, 2007, Judge Brinkema publicly stated that the US government had provided incorrect
information about evidence in the Moussaoui trial and that due to those actions, she was considering
ordering a new trial in a related terrorism case, that of Ali al-Timimi, a Virginia Muslim cleric. Brinkema
said that she could no longer trust the CIA and other government agencies on how they represent classified
evidence in terror cases after Moussaoui case prosecutors admitted that the CIA had assured her that no
videotapes or audiotapes existed of interrogations of certain high-profile terrorism detainees, but later, in a
letter made public Nov. 13, two such videotapes and one audio tape were made known.[18]
Mounir El Motassadeq
Mounir El Motassadeq, a Moroccan living in Germany who belonged to the Hamburg cell apartment owned
by Mohamed Atta and lived in by many other people who would later go on to lead the September 11, 2001
attacks, in February 2003 was convicted in Germany of over 3,000 counts of accessory to murder in direct
relation to the September 11 attacks, but the conviction was rejected on appeal. Though the German Justice
Ministry pressed the United States to allow Ramzi bin al-Shibh to testify, the US refused, and the verdict
and sentence were set aside.
Motassadeq was re-tried and convicted on August 19, 2005 of "membership in a "terrorist organization".
That conviction was also rejected in appeal.[2] (http://today.reuters.com/business/newsarticle.aspx?
type=tnBusinessNews&storyID=nL19618150),[3]
(http://www.cbc.ca/world/story/2005/08/19/Moroccan_convicted050819.html),[4]
(http://www.suntimes.com/output/terror/cst-nws-cell20.html),[5]
(http://www.guardian.co.uk/september11/story/0,11209,1552975,00.html)
On February 7, 2006, Germany's Federal Constitutional Court ordered an early release of Motassadeq. The
highest court of Germany ruled there was an absence of proof that Motassadeq was informed about the
September 11 terrorist plot.[6] (http://news.bbc.co.uk/2/hi/europe/4690712.stm)
On November 15, 2006, the German Federal Supreme Court ruled on the appeals: They considered the
evidence as sufficient to prove that Motassadeq knew about and was involved in the preparation of the plan
to hijack the planes and is hence guilty of accessory in 246 counts of murder. This is the number of victims
that died in the planes but does not include the victims on ground. The Oberlandesgericht (state supreme
court) in Hamburg then took up the trial again in order to decide on the sentencing.[7]
(http://www.sueddeutsche.de/,tt2m3/deutschland/artikel/765/91674/) Two days later, the Federal Supreme
Court also revoked the release order and Motassadeq was arrested again. On January 8, 2007, he was
sentenced by the Oberlandesgericht Hamburg to 15 years in prison, the maximum sentence possible under
German law. The Federal Constitutional Court of Germany did not accept to revise his case. On May 2 the
Federal Court of Justice of Germany rejected a plea for revision. His lawyers are currently thinking about
both calling upon the European Court of Human Rights and trying to get the case reopened - his two
ultimate legal choices left.[8] (http://de.wikinews.org/wiki/Revision_im_El-MotassadeqProzess_abgewiesen)
Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Mustafa Ahmad

al-Hawsawi, Ali Abd al-Aziz Ali and Walid Bin Attash
158
On February 11, 2008, US Department of Defense charged Khalid Sheikh Mohammed as well as Ramzi bin
al-Shibh, Mustafa Ahmad al-Hawsawi, Ali Abd al-Aziz Ali and Walid Bin Attash for the September 11
attacks under the military commission system, as established under the Military Commissions Act of 2006.
These individuals were arrested in 2002-2003 in Pakistan and held by CIA in undisclosed locations.
On September 6, 2006, American President George W. Bush confirmed, for the first time, that the CIA had
held "high-value detainees" in secret interrogation centers. He also announced that fourteen senior captives,
including Khalid Sheikh Mohammed, were being transferred from CIA custody, to military custody, at
Guantanamo Bay and that these fourteen captives could now expect to face charges before Guantanamo
military commissions.
In a September 29, 2006 speech, President Bush stated "Once captured, Abu Zubaydah, Ramzi bin al-Shibh,
and Khalid Sheikh Mohammed were taken into custody of the Central Intelligence Agency. The questioning
of these and other suspected terrorists provided information that helped us protect the American people.
They helped us break up a cell of Southeast Asian terrorist operatives that had been groomed for attacks
inside the United States. They helped us disrupt an al Qaeda operation to develop anthrax for terrorist
attacks. They helped us stop a planned strike on a US Marine camp in Djibouti, and to prevent a planned
attack on the US Consulate in Karachi, and to foil a plot to hijack passenger planes and to fly them into
Heathrow Airport and London's Canary Wharf."[19]
In March 2007, Mohammed testified before a closed-door hearing in Guantnamo Bay. According to
transcripts of the hearing released by the Pentagon, he said "I was responsible for the 9/11 operation, from A
to Z." The transcripts also show him confessing to: organizing the 1993 World Trade Center bombing; the
Bali nightclub bombings; and Richard Reid's attempted shoe bombing. He also confessed to planning
attacks on Heathrow Airport and Big Ben clock tower in London, Pearl's murder in 2002, and planned
assassination attempts on Pope John Paul II, Pervez Musharraf and Bill Clinton.[20]
Khalid Sheikh Mohammed as well as Ramzi bin al-Shibh, Mustafa Ahmad al-Hawsawi, Ali Abd al-Aziz Ali
and Walid Bin Attash have reportedly been charged with the murder of almost 3000 people, terrorism and
providing material support for terrorism and plane hijacking; as well as attacking civilian objects,
intentionally causing serious bodily injury and destruction of property in violation of the law of war. The
charges against them list 169 overt acts allegedly committed by the defendants in furtherance of the
September 11 events". The charges include 2,973 individual counts of murderone for each person killed
in the 9/11 attacks.[9] (http://news.bbc.co.uk/2/hi/americas/7437164.stm)
The US government is seeking the death penalty, which would require the unanimous agreement of the
commission judges.
Possible guilty plea

On December 8, 2008, Khalid Sheikh Mohammed and his four co-defendants told the judge stating that they
wished to confess and plead guilty to all charges. The plea will be delayed until mental competency hearings
for Mustafa Ahmad al-Hawsawi and Ramzi bin al-Shibh can be held; Mohammed said, "We want everyone
to plead together."[21][22] Spencer Ackerman, writing in the Washington Independent, reported that
Presiding Officer Stephen Henley had to consider whether he was authorized to accept guilty pleas.
Transfer of the Case to a Civilian Court
159
On 13 November 2009 US Attorney General Eric Holder announced that Khalid Sheikh Mohammed, Ramzi
Bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi will all be transferred
to the U.S. District Court for the Southern District of New York for trial. He also expressed confidence that
an impartial jury would be found "to ensure a fair trial in New York."[23]
On 21 January 2010 all charges have been withdrawn in the military commissions against the five suspects
in the Sept. 11, 2001 terror attacks being held at Guantanamo Bay. The charges were dropped "without
prejudice" - a procedural move that allows federal officials to transfer the men to trial in a civilian court and
also leaves the door open, if necessary, to bring charges again in military commissions.[24]
In February 2010 Fox News reported that the legal counsel of Khalid Sheikh Mohammed, and the legal
counsel of several other captives, was halted without warning.[24] The attorneys had made the trip to
Guantanamo in the usual mannera trip that requires advising authorities of the purpose of their trip.
However, upon their arrival in Guantanamo, they were informed they were no longer allowed to see their
clients. They were told that letters to their clients, telling them that they had travelled to Cuba, to see them,
could not be delivered, as they were no longer authorized to write to their clients. Camp authorities told
them that since the charges against their clients had been dropped, while the Department of Justice figured
out where to charge them, they no longer needed legal counsel. Camp authorities told them that,
henceforward, all access to the captives had to be approved by Jay Johnson, the Department of Defense's
General Counsel. Fox reported that during earlier periods when the charges had been dropped the captives
had still been allowed to see their attorneys. Fox claimed that questions they asked camp authorities lead to
the captives' access to their attorneys being restored.
Transfer of the case back to a military commission

On 7 January 2011 US President Barack Obama signed National Defense Authorization Act which
explicitly prohibits the use of US Defense Department funds to transfer detainees from Guantanamo Bay to
the United States or other countries. It also bars Pentagon funds from being used to build facilities in the
United States to house detainees, as the president originally suggested. The move essentially barred the
administration from trying detainees in civilian courts. The president objected to the provision in the bill
before signing it, calling it "a dangerous and unprecedented challenge to critical executive branch authority"
but also said his team would work with the US Congress to "seek repeal of these restrictions."[25]
On 4 April 2011 Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four other
9/11 terror suspects will face a military trial at the Guantanamo Bay detention facility. In announcing his
decision, Holder blasted Congress for imposing restrictions on the Justice Department's ability to bring the
men to New York for civilian trials. "After thoroughly studying the case, it became clear to me that the best
venue for prosecution was in federal court. I stand by that decision today," Holder said. "As the president
has said, those unwise and unwarranted restrictions (imposed by Congress) undermine our counterterrorism
efforts and could harm our national security. Decisions about who, where and how to prosecute have always
been - and must remain - the responsibility of the executive branch." Holder insisted, "We were prepared to
bring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators - one of the most
well-researched and documented cases I have ever seen in my decades of experience as a prosecutor." He
added, "Had this case proceeded in Manhattan or in an alternative venue in the United States, as I seriously
explored in the past year, I am confident that our justice system would have performed with the same
160
distinction that has been its hallmark for over 200 years." Holder had promised to seek the death penalty for
each of the five men and on 4 April he warned that it is an "open question" if such a penalty can be imposed
by a military commission if the defendants plead guilty.[26]
References
1. UNITED STATES OF AMERICA v. ZACARIAS MOUSSAOUI - Indictment.
(http://www.usdoj.gov/ag/moussaouiindictment.htm) United States District Court for the Eastern District of
Virginia Alexandria Division, United States Department of Justice, December 2001. Retrieved on 2007-01-03.
2. Moussaoui: 'I am al Qaeda'. (http://www.cnn.com/2006/LAW/02/06/moussaoui.trial/index.html) CNN (2006-0206).
3. Barakat, Matthew.Moussaoui Jury Watches Video Testimony. (http://www.sfgate.com/cgi-bin/article.cgi?
f=/n/a/2006/03/08/national/a090713S88.DTL) Associated Press (2006-03-08).
4. Government Can Seek Death Penalty Against Moussaoui. (http://www.nbc4.com/news/7960042/detail.html)
NBC4.com (2006-03-13).
5. Government Can Seek Death Penalty In 9/11 Case.
(http://www.thebostonchannel.com/consumer/8001206/detail.html) TheBostonChannel.com (2006-03-14).
6. Moussaoui lies 'let 9/11 happen'. (http://news.bbc.co.uk/1/hi/world/americas/4850988.stm) BBC News (2006-0327.)
7. Hirschkorn, Phil.Moussaoui: White House was my 9/11 target.
(http://www.cnn.com/2006/LAW/03/27/moussaoui/index.html) CNN (2006-03-27.)
8. Lithwick, Dahlia. When You Wish Upon a Scar; Zacarias Moussai finally makes his dream come true.
(http://www.slate.com/id/2139185/) Slate (2006-04-03.)
9. Serrano, Richard A.In Court, Two 20th Hijackers Stand Up.
(http://pqasb.pqarchiver.com/latimes/access/1014178801.html?
dids=1014178801:1014178801&FMT=ABS&FMTS=ABS:FT&type=current&date=Apr+3%2C+2006&author=
Richard+A.+Serrano&pub=Los+Angeles+Times&edition=&startpage=A.1&desc=The+Nation) Los Angeles
Times (2006-04-03.)
10. Moussaoui Says He Was to Hijack 5th Plane.
(http://www.cbsnews.com/stories/2006/03/27/ap/national/mainD8GK7DEG0.shtml) Associated Press (2006-0327.)
11. (French) Kacem, Abdel.Le deal de la France avec Washington.
(http://fides.ifrance.com/fides/html/mousaou1.html) Fids Journal (2002-11-29)
12. Markon, Jerry and Timothy Dwyer.Damning evidence highlights FBI bungles.
(http://www.smh.com.au/news/world/damning-evidence-highlights-fbibungles/2006/03/21/1142703358754.html) The Sydney Morning Herald (2006-03-22).
13. Moussaoui formally sentenced, still defiant. (http://www.msnbc.msn.com/id/12615601) MSNBC (2006-05-04).
14. Asseo, Laurie.Moussaoui Seeks to Withdraw Guilty Plea in Sept. 11 Attacks.
(http://www.bloomberg.com/apps/news?pid=10000103&sid=aM4lKxRGuqBQ) Bloomberg (2006-05-08).
15. "U.S. Marshals Deliver Zacarias Moussaoui to "ADMAX" Prison"
(http://web.archive.org/web/20070806172354/http://usmarshals.gov/news/chron/2006/051306a.htm). US
Marshals (http://www.usmarshals.gov/). May 13, 2006. Archived from the original
(http://www.usmarshals.gov/news/chron/2006/051306a.htm) on 2007-08-06. Retrieved 2007-09-09.
16. "Inmate Locator" (http://www.bop.gov/iloc2/InmateFinderServlet?
Transaction=IDSearch&needingMoreList=false&IDType=IRN&IDNumber=51427-054&x=20&y=21). bop.gov.
17. United States v. Zacarias Moussaoui Criminal, No. 01-455-A Trial Exhibits.
(http://www.vaed.uscourts.gov/notablecases/moussaoui/exhibits/) United States District Court Eastern District of
Virginia. Retrieved on 2007-01-03.
18. Moussaoui judge questions government (http://news.yahoo.com/s/ap/20071120/ap_on_re_us/terror_paintball)
19. White House,Remarks by the President on the Global War on Terror (http://georgewbushwhitehouse.archives.gov/news/releases/2006/09/20060929-3.html), September 29, 2006
161
20. "Key 9/11 suspect confesses guilt" (http://news.bbc.co.uk/2/hi/americas/6452573.stm). BBC News (BBC). 200703-15. Retrieved 2007-03-15.
21. Reuters wire service (December 8, 2008). "Sept. 11 Defendants Ask to Plead Guilty"
(http://www.nytimes.com/reuters/us/guantanamo-hearings-pleas.html). The New York Times. Retrieved
December 8, 2008.
"Top 9/11 suspects to plead guilty" (http://news.bbc.co.uk/1/hi/world/americas/7770856.stm). BBC News.
December 8, 2008. Retrieved December 8, 2008.
22. Spencer Ackerman (2008-12-08). "Coersion and Military Law: Does a Plea After Torture Stand?"
(http://washingtonindependent.com/21398/coersion-and-military-law). Washington Independent. Retrieved
2008-12-08. mirror (http://www.webcitation.org/query?
url=http%3A%2F%2Fwashingtonindependent.com%2F21398%2Fcoersion-and-military-law&date=2008-12-09)
23. Terry Frieden, Chris Kokenes (2009-11-13). "Accused 9/11 plotter Khalid Sheikh Mohammed faces New York
trial". CNN.
24. Catherine Herridge (2010-01-22). "Charges Withdrawn in Military Commissions for Sept. 11 Suspects"
(http://www.foxnews.com/politics/2010/01/22/charges-withdrawn-military-commissions-sept-suspects/). Fox
News.
25. Jason Ryan and Huma Khan. "9/11 Mastermind Khalid Sheikh Mohammed to be Tried by Military Commission"
(http://abcnews.go.com/Politics/911-mastermind-khalid-sheikh-mohammed-military-commission/story?
id=13291750). ABC News.
26. "Accused 9/11 terror suspects to face military trials"
(http://edition.cnn.com/2011/US/04/04/guantanamo.tribunals/index.html#). cnn.com.
External links
Official site of the U.S. Defence Department on Military Commissions (Khalid Sheikh Mohammed et
al. case documents) (http://www.defenselink.mil/news/commissionsCo-conspirators.html)
title=Trials_related_to_the_September_11_attacks&oldid=637487676"
Categories: Proceedings surrounding the September 11 attacks
This page was last modified on 10 December 2014, at 16:13.
162
United States v. Curtiss-Wright Export Corp.

United States v. Curtiss-Wright Export Corp.,

299 U.S. 304 (1936),[1] was a United States
Supreme Court case involving principles of both
governmental regulation of business and the
supremacy of the executive branch of the federal
government to conduct foreign affairs. The
Supreme Court concluded not only that foreign
affairs power was vested in the national
government as a whole but also that the President
of the United States had "plenary" powers in the
foreign affairs field that was not dependent upon
congressional delegation.
Contents
1 Background
2 Issue
3 Decision of the Court
4 See also
5 References
6 Further reading
7 External links
United States v. Curtiss-Wright Export Corp.

Argued November 1920, 1936
Decided December 21, 1936
Full case United States v. Curtiss-Wright Export
name
Corporation et al.
(more)
299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255
Prior
Judgment sustaining a demurrer to the
history indictment, 14 F.Supp. 230 (D. D.C. 1932)
Holding
While the Constitution does not explicitly say that all ability
to conduct foreign policy is vested in the President, it is
nonetheless given implicitly and by the fact that the
executive, by its very nature, is empowered to conduct
foreign affairs in a way that Congress cannot and should
not.
Court membership
Background
Chief Justice
Charles E. Hughes
Associate Justices
Congress, acting by joint resolution, had
Willis
Van
Devanter
James C. McReynolds
authorized the President to place an embargo on
Louis Brandeis George Sutherland
arms shipments to South American countries
Pierce Butler Harlan F. Stone
engaged in the Chaco War. Acting pursuant to the
Owen J. Roberts Benjamin N. Cardozo
resolution, President Franklin Roosevelt
Case opinions
proclaimed such an embargo. When CurtissWright Export Corp. was indicted for violating the Majority Sutherland
embargo through the sale of bombers and fighter
Dissent McReynolds
planes to Bolivia, it defended itself on the grounds
Stone took no part in the consideration or decision of the case.
that the embargo and the proclamation were void
because Congress had improperly delegated legislative power to the executive branch by leaving what was
essentially a legislative determination to the President's "unfettered discretion."
In 1936, the defendant Curtiss-Wright Corporation was charged with illegally sending arms of war to
Bolivia prior to the revocation of the first proclamation.[1]
163
Issue
The defendant raised several issues for consideration by the Court:
1. Did the Joint Resolution passed by Congress grant too much authority (and legislative power) to the
President, in violation of the non-delegation doctrine?
2. Was the President required by due process considerations to make findings of fact in support of the
proclamation?
3. Did the revocation of the May 1934 proclamation operate to eliminate the penalty for its violation?
Decision of the Court

Justice Sutherland wrote in his opinion of the Court:
The ["powers of the federal government in respect of foreign or external affairs and those in
respect of domestic or internal affairs"] are different, both in respect of their origin and their
nature. The broad statement that the federal government can exercise no powers except those
specifically enumerated in the Constitution, and such implied powers as are necessary and
proper to carry into effect the enumerated powers, is categorically true only in respect of our
internal affairs.
And he added:
It is important to bear in mind that we are here dealing not alone with an authority vested in the
President by an exertion of legislative power, but with such an authority plus the very delicate,
plenary and exclusive power of the President as the sole organ of the federal government in the
field of international relationsa power which does not require as a basis for its exercise an act
of Congress, but which, of course, like every other governmental power, must be exercised in
subordination to the applicable provisions of the Constitution.
While the Constitution does not explicitly say that all ability to conduct foreign policy is vested in the
President, it is nonetheless given implicitly and by the fact that the executive, by its very nature, is
empowered to conduct foreign affairs in a way that Congress cannot and should not. The Court stated that
"there is sufficient warrant for the broad discretion vested in the President to determine whether the
enforcement of the statute will have a beneficial effect upon the reestablishment of peace in the affected
countries."[1]
The upshot of this ruling not only upheld export limitations on the grounds of national security (similar ones
still exist today) but also established the broader principle of executive supremacy in national security and
foreign affairs, one of the reasons advanced in the 1950s in favor of the almost-successful attempt to add the
Bricker Amendment to the Constitution.
The Court has not recognized the full scope of executive power suggested by Justice Sutherland's sweeping
language. Congressional authorization may be necessary to legitimize many executive acts. In Regan v.
Wald (1984), for example, the Supreme Court cited Curtiss-Wright
in upholding the constitutionality of the
164
president's regulations restricting travel to Cuba expressly on the ground that they had been authorized by
Congress. On the other hand, in Federal Energy Administration v. Algonquin SNG, Inc. (1976), the Court
validated presidential restrictions on oil imports, based on very broad congressional language delegating
apparently unlimited regulatory authority to the executive branch.
In an opinion written by Justice Sutherland, the Supreme Court rejected these arguments and found in favor
of the government. Despite the controversy surrounding it, the Curtiss-Wright decision is one of the
Supreme Court's most influential. Most cases involving conflicts between the executive and legislative
branches involve political questions that the courts refuse to adjudicate. Therefore, the sweeping language of
Curtiss-Wright is regularly cited to support executive branch claims of power to act without congressional
authorization in foreign affairs, especially when there is no judicial intervention to interpret the meaning of
that text.
See also
References
1. United States v. Curtiss-Wright, 299 U.S. 304 (1936).
Further reading
Robert A. Divine, The Case of the Smuggled Bombers, in Quarrels That Have Shaped the
Constitution, edited by John A. Garraty (New York: Harper & Row, 1987)
External links
^ 299 U.S. 304
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?
navby=CASE&court=US&vol=299&page=304) Full text of
the opinion courtesy of Findlaw.com.
Summary of case from OYEZ
(http://www.oyez.org/cases/1901-1939/1936/1936_98)

United States v.
Curtiss-Wright Export
Corporation
Retrieved from "http://en.wikipedia.org/w/index.php?title=United_States_v._CurtissWright_Export_Corp.&oldid=644770676"

United States foreign relations case law BoliviaUnited States relations
United States Supreme Court cases of the Hughes Court
165
166
United States v. Lee

United States v. Lee, 106 U.S. 196
United States v. Lee

Argued October 1819, 1882
Decided December 4, 1882
Full case United States v. Lee. Kaufman and another v.
name
Same.
(more)
1 S. Ct. 240; 27 L.Ed. 171; 16 Otto 196
Prior
Error to the Circuit Court of the United States for
history the Eastern District of Virginia.
Holding
Sovereign immunity does not extend to officers of the
government.
Court membership
Chief Justice
Morrison Waite
Associate Justices
Samuel F. Miller Stephen J. Field
Joseph P. Bradley John M. Harlan
William B. Woods T. Stanley Matthews
Horace Gray Samuel Blatchford
Case opinions
Majority Miller, joined by Field, Harlan, Matthews,
Blatchford
Dissent Gray, joined by Waite, Bradley, Woods
Laws applied
Act for the Collection of Taxes in the Insurrectionary
Districts (12 Stat. at L. 422); Fifth Amendment
(https://supreme.justia.com/cases/federal/us/106/196/) (1882),[1][2] is a 5-to-4 ruling by the United States

Supreme Court which held that the Constitution's prohibition on lawsuits against the federal government did
not extend to officers of the government themselves.[3] The case involved the heir of Mary Anna Custis Lee,
wife of Confederate States of America General Robert E. Lee, who sued to regain control of Arlington
House and its grounds. Arlington had been seized by the United States government in 1861 and eventually
converted into Arlington National Cemetery. The estate
had been sold to pay outstanding taxes, but the
167
lawsuit contested the tax sale as improper. A jury found in favor of the Lees.[4] The Supreme Court, too,
concluded that the tax sale was illegal.[5][6][7][8] In stripping the federal officers of their sovereign
immunity, the Supreme Court agreed that suit against them was proper.[6][9]
The jury verdict returned Arlington to the Lee family, but only temporarily. The family never returned to
Arlington, but rather sold the estate to the United States government in 1883 for $150,000 ($3,796,607 in
2015 dollars).[10]
Contents
1 Background
1.1 History of the Arlington estate
1.2 Seizure of the estate
1.3 Suit by Lee's heirs
2.1 Dissent
4 Footnotes
5 Bibliography
Background
History of the Arlington estate
John Parke Custis, son of Martha Parke Custis Washington and stepson of George Washington, purchased
1,100 acres (450ha) of forest and farm land in 1778 and called it "Arlington."[11][12] The estate was located
directly across the Potomac River from the future site of Washington, D.C., in what was then Alexandria
County (now known as Arlington County). John Custis died in 1781, and his son, George Washington Parke
Custis, inherited the property. G.W.P. Custis hired George Hadfield, then supervising construction of the
United States Capitol, to design and build a two-story Greek Revival house atop the most prominent hill on
the property, a mansion Custis named "Arlington House."[11] G.W.P. Custis' daughter, Mary Anna, married
Robert E. Lee in 1831.[11] Custis died in 1857, leaving his estate and Arlington House to his daughter.[13]
Seizure of the estate

In April 1861, Virginia seceded from the United States and Robert E. Lee resigned his commission in the
United States Army on April 20, 1861, and joined the military forces of the Confederate States of
America.[12] On May 7, troops of the Virginia militia occupied Arlington and Arlington House.[14] With
Confedrate forces occupying Arlington's high ground, the capital of the Union was left in an untenable
military position.[15] Although unwilling to leave Arlington House, Mary Lee believed her estate would
soon be invested with federal soldiers. So she buried many of her family treasures on the grounds and left
for her sister's estate at Ravensworth in Fairfax County,
Virginia, on May 14.[16][17] On May 3, General
168
Winfield Scott ordered Brigadier General Irvin McDowell to clear Arlington and the city of Alexandria,
Virginia, of all troops not loyal to the United States.[18] McDowell occupied Arlington without opposition
on May 24.[19]
On June 7, 1862, the U.S. Congress enacted the Act for the
Collection of Taxes in the Insurrectionary Districts (12 Stat. at L.
422), legislation which imposed a property tax on all land in
"insurrectionary" areas of the United States.[20] The 1863
amendments to the statute required these taxes to be paid in
person.[17][21] Congress knew that few Confederate sympathizers
would appear in person to pay the tax, thus allowing the federal
government to seize large amounts of property and auction it off to
raise money for the war effort.[21] A tax of $92.07 ($1,764 in 2015
Union troops pose in front of

Arlington House during the American
Civil War.
dollars) was levied on the Arlington estate in 1863.[17][21] But Mary

Lee, afflicted with severe rheumatoid arthritis and behind
Confederate lines in Richmond, Virginia, gave the payment to her
cousin, Philip R. Fendall (who lived in Alexandria).[21] The tax
collectors refused to accept his payment.[22] On January 11, 1864,
the entire estate was auctioned off to pay the tax due.[17][22] (With a
50 percent penalty for nonpayment, the total of tax and fine was $138.11 ($2,083 in 2015 dollars).)[23]
Although the auction was well-attended, the U.S. government was the only bidder and won the property for
$26,800 ($392,047 in 2015 dollars) (less than its assessed value of $34,100 ($863,095 in 2015 dollars)).[22]
With local cemeteries in Alexandria County and Alexandria filling rapidly with war dead, Quartermaster
General of the United States Army Montgomery C. Meigs proposed using 200 acres (81ha) of the Arlington
estate as a cemetery.[12] The first burial there was made on May 13, 1864.[12] United States Secretary of
War Edwin M. Stanton approved the establishment of a military cemetery on June 15, 1864, creating
Arlington National Cemetery.[17][24] By the end of the war in April 1865, more than 16,000 people had been
buried at Arlington.[12] In September 1866, a memorial and a burial vault (containing the remains of 2,111
U.S. and Confederate soldiers who died at the First Battle of Bull Run, Second Battle of Bull Run, and
along the Rappahannock River) were buried in Lee's former rose garden on the mansion's east side beneath
the Civil War Unknowns Monument, a memorial to honor unknown soldiers who had died during the
American Civil War.[12][25]
Suit by Lee's heirs

Robert E. Lee made no attempt to restore his title to Arlington before his death in 1870.[25] Mary Lee died
in 1873, having returned to the house a few months before her death.[25] Too upset at its condition, she
refused to enter and left after just a few moments.[25]
169
In April 1874,[26] Robert E. and Mary Lee's eldest son, George Washington Custis Lee, petitioned Congress
for payment for the Arlington estate.[27] Lee argued that tax sale of the entire property (rather than just that
portion needed to pay the tax debt) amounted to confiscation and was unconstitutional.[27] He also argued
that the tax collectors' refusal to accept payment made the proceedings null and void.[27] Finally, he asserted
that the federal government should only be able to secure a life interest in the property (in other words, seize
it only as long as Mary Lee lived) and could not assert title to the estate without the consent of the state of
Virginia.[27] He offered not to litigate the seizure of Arlington if paid.[27] Lee's petition was referred to the
United States House Committee on the Judiciary on April 6, but it was not acted on.[26][27]
In April 1877, Lee filed suit in Alexandria County circuit court to eject the U.S.
government from Arlington.[28] His suit named, among others, Frederick
Kaufman (a civilian in the United States Department of War who oversaw
Arlington National Cemetery) and R.P. Strong (a U.S. Army officer who
supervised the portion of Arlington which had become an Army post).[29]
Almost a thousand others were named in the suit, all of them former African
American slaves who had been allowed to form a settlement known as
Freedmen's Village on part of the estate.[30] On July 6, United States Attorney
General Charles Devens filed a writ of certiorari asking that the case be
transferred to the United States Circuit Court for the Eastern District of
George Washington
Custis Lee in 1865, in his
Confederate general's
uniform.
Virginia, a request which the federal court approved three days later.[30] On
July 16, Devens filed a motion to have Lee's suit dismissed on the grounds that
the Constitution made the federal government immune to suits at law (unless it
gave its consent).[31] Lee filed a demurrer, pointing out that the government had
taken the contradictory position of being a private buyer in a tax sale and yet
asserting sovereign immunity as if its purchase were a governmental act.[32] On

March 15, 1878, the circuit court held that not only did the court have jurisdiction to decide the issue but
that the lawsuit presented a controversy over facts which should be decided by a jury.[33] A jury trial was
held January 2430, 1879, in Alexandria.[34] The jury found for Lee, concluding that the demand to accept
payment only in person violated the Constitution's due process guarantees.[4]
The federal government asked on April 6, 1879, that the jury verdict be set aside on the basis of the
Supreme Court's ruling in Carr v. United States, 98 U.S. 433,[35] (a decision handed down on March 3, after
the jury's verdict had been reached).[4] Carr v. United States involved a case where the city of San
Francisco, California, transferred title to property within the city to the federal government even though a
private citizen claimed title to the land. The Supreme Court reaffirmed in Carr that the federal government
cannot be sued without its consent, that a suit against an officer or agent of the federal government does not
bind the government itself, and that courts do not have jurisdiction over title suits against the federal
government's officers and agents.[36] Only when property has been transferred by the courts does a private
citizen establish a right to establish or reclaim rights to title.[36] But the circuit court in Lee held that much
of the decision in Carr was dicta, and reaffirmed the jury decision.[37]
170
Two appeals were made to the U.S. Supreme Court. The first was by the United States government itself,
while the second was made by the government on behalf of Kaufman and Strong.[38] The question was
whether the title actually transferred to the federal government. If yes, then Lee had no claim; but if not,
then Lee had standing to sue to reclaim his title to the land.[38] To determine this, the Supreme Court first
had to rule out all other grounds for a suit, and then determine whether the tax sale actually transferred the
title.[39]

Associate Justice Samuel Freeman Miller wrote the decision for the majority, joined by Associate Justices
Stephen Johnson Field, John Marshall Harlan, Stanley Matthews, and Samuel Blatchford. Most of Miller's
ruling was technical.[40]
After reviewing the facts of the case,[41] Miller presented the two critical questions in the case: 1) Were
there other grounds for a suit other than transfer of title in error, and 2) whether the tax sale had actually
transferred title.[42] The members of the Court were agreed that there no errors regarding interpretation of
the law by the circuit court, in the jury instructions, or in the documents of the tax sale.[43] But, citing
Bennett v. Hunter, 72 U.S. 326 (1869),[44] (which had involved the nearby Abingdon estate); Tacey v. Irwin,
85 U.S. 549 (1873);[45] and Atwood v. Weems, 99 U.S. 183 (1878),[46] the majority reaffirmed that a tax
collector's refusal to accept payment was the equivalent of payment.[47] The majority considered whether a
rule had been properly adopted by the tax commissioners to accept payment only from the title holder him
or her self, and found that it had properly been adopted.[48] However, the majority found that denial of a
taxpayer's right to pay through an agent was improper:[5]
...[T]he commissioners, having in the execution of the law acted upon a rule which deprived the
owner of the land of an important right, a right which went to the root of the matter, a right which has
in no instance known to us or cited by counsel been refused to a tax-payer, the sale made under such
circumstances is invalid, as much so as if the tax had been actually paid or tendered.
The government claimed that prior Court rulings on tax payment regulations were not applicable because
the 1862 the law specifically required payment to be made in person, but the Court disagreed and
distinguished its previous decisions as being based on the 1862 law and its 1863 amendments.[49] The
government also claimed that the law did not permit payment to be made between the announcement of the
tax sale and the date of the sale if the government were the purchaser.[50] But the majority pointed out that
this created a contradiction: How could the title holder know that the government was the purchaser until
the actual purchase had occurred?[50] This made no sense, and subsequently that section of the law was
invalid.
The Court next considered whether payment had been attempted. Relying on Cooley v. O'Connor, 79 U.S.
391 (1870),[51] the majority noted that nothing in the law or the Constitution indicated that the government's
title to land "should have any greater effect as evidence of title than in the case of a private purchaser, nor
why it should not be subject to the same rules in determining its validity, nor why the payment or tender of
171
the tax, interest, and costs, should not be made by an agent in the one case as in the other."[52] Since there
was uncontested evidence that Lee had attempted to make payment in full, the tax should have been
considered paid.[52]
But did sovereign immunity bar any challenge to the government's title, once title had been transferred?
Justice Miller engaged in a lengthy historical review of the privilege of
sovereign immunity, its roots in English and common law, its acceptance in
Colonial America, its enshrinement in the Constitution, and its growing
acceptance by the courts of the United States.[53] But the Lee lawsuit was
against Kaufman and Strong as individuals, not just the United States
government. The government argued that title in the Arlington estate was
held by the government, not these officers, and thus was immunized against
suit.[54] The Court, citing Meigs v. M'Clung's Lessee 13 U.S. 11 (1815),[55]
concluded there was no difference whether the officers were in possession
of the land themselves or whether they held the land as agents of the
government.[56] The Court relied heavily on Osborn v. Bank of the United
States, 22 U.S. 738 (1824),[57] in which officers of the state of Ohio (rather
than the state itself) were sued but the actual party affected was the
sovereignly immune state.[58] The majority reaffirmed the statement of
principle in Davis v. Gray:[59] "Where the State is concerned, the State
Justice Samuel Miller, who

wrote the majority opinion in
Lee.
should be made a party, if it can be done."[60] The Court agreed that much
of the holding in Carr v. United States was dicta, and could not be relied upon by the government.[61]
The government also claimed that since Arlington had been put to a lofty public use (a cemetery and a fort),
Lee should not be able to disturb title to it after so long a period of time. But the Court strongly disagreed,
arguing that the Fifth Amendment made no such distinction.[62] In ringing language, the majority upheld
Lee's right against deprivation of property without due process of law:[63]
The defence stands here solely upon the absolute immunity from judicial inquiry of every one who
asserts authority from the executive branch of the government, however clear it may be made that the
executive possessed no such power. Not only no such power is given, but it is absolutely prohibited,
both to the executive and the legislative, to deprive any one of life, liberty, or property without due
process of law, or to take private property without just compensation. ... No man in this country is so
high that he is above the law. No officer of the law may set that law at defiance with impunity. All the
officers of the government, from the highest to the lowest, are creatures of the law, and are bound to
obey it. It is the only supreme power in our system of government, and every man who by accepting
office participates in its functions is only the more strongly bound to submit to that supremacy, and to
observe the limitations which it imposes upon the exercise of the authority which it gives. Courts of
justice are established, not only to decide upon the controverted rights of the citizens as against each
other, but also upon rights in controversy between them and the government; and the docket of this
court is crowded with controversies of the latter class. Shall it be said, in the face of all this, and of the
acknowledged right of the judiciary to decide in proper cases, statutes which have been passed by
both branches of Congress and approved by the President to be unconstitutional, that the courts cannot
give a remedy when the citizen has been deprived of his property by force, his estate seized and
converted to the use of the government without lawful authority, without process of law, and without
compensation, because the President has ordered
172 it and his officers are in possession? If such be the
law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in
any other government which has a just claim to well-regulated liberty and the protection of personal
rights.
The decision of the circuit court was affirmed.[64]
Dissent
Associate Justice Horace Gray wrote a dissent, which was joined by Chief Justice Morrison Waite and
Associate Justices Joseph P. Bradley, and William Burnham Woods.
Justice Gray extensively reviewed the facts of the case.[65] Then Gray asserted the critical principle in the
case: "The sovereign is not liable to be sued in any judicial tribunal without its consent. The sovereign
cannot hold property except by agents."[66] Like the majority, the dissenters also provided a lengthy history
of the right of sovereign immunity, but underscoring the uniform inviolability of the right.[67] Citing United
States v. Clarke, 33 U.S. 436 (1834),[68] the dissent reasserted that a lawsuit against the United States must
be brought under the explicit authority of an act of Congress or the courts have no jurisdiction over it.[69]
Gray also reviewed the authority of private citizens to bring suit in the United States Court of Claims.[70]
To permit Lee's suit, Gray argued, would open the United States to a multitude of suits over title to land it
held.[71] The cases cited by the majority (such as United States v. Peters, Osborn v. Bank of United States,
Meigs v. M'Clung, and Davis v. Gray) were improperly cited, Gray argued, as in each case "either the
money was in the personal possession of the defendants and not in the possession of the State, or the suit
was to restrain the defendants by injunction from doing acts in violation of the Constitution of the United
States."[72] It was one thing for the Court to eject or dispossess officers or agents of the United States from
land or funds; such actions, Gray concluded, continued to immunize the United States government from
suits.[73] Carr v. United States reaffirmed this principle, he concluded.[74] To blur the distinction between
officer and state or to assume or imply it without the state's consent, as the majority does, Gray said, would
leave the sovereign immunity right in shambles.[75]
Once the United States asserted that it was a party to the case, Gray concluded, the courts had no
jurisdiction and should not have heard the case.[76] Once the United States interposed itself between
Kaufman and Strong and the plaintiff, the courts should not have ordered trial to proceed against them,
either.[77] Because the courts had no jurisdiction, the dissenters refused to address the issue of the validity of
the title.[77]
The U.S. government faced the daunting prospect of having to disinter 17,000 bodies and transfer Arlington
back to the Lee family.[25] Additionally, much of the estate had been developed into the new Army post of
Fort Myer.[10] After several months of difficult negotiations, Lee and the government settled on a sale price
173
of $150,000 ($3,796,607 in 2015 dollars).[10][25] Congress enacted legislation funding the purchase on
March 3, 1883; Lee signed over the title on March 31; and the title transfer was recorded on May 14,
1883.[10][25]
United States v. Lee is one of three important federal sovereign immunity cases, and the most important
doctrinally.[6][78] The case showed just how sharply divided the
Supreme Court was over the scope and legitimacy of sovereign
immunity in the United States.[79] The majority opinion questioned
whether sovereign immunity was appropriate in a republic, and
suggested that it had been adopted in an unprincipled and careless
way by previous court decisions.[79] The decision was the first to
refuse to extend sovereign immunity to officers of the state acting as
individuals,[3] a principle which would later become known as the
"stripping doctrine".[80] The decision also revised the Supreme
Arlington House at Arlington
Court's "nominal party rule," first enunciated in Osborn and Davis.
National Cemetery in 2005.
In those cases, the Court had salvaged federal and state sovereign
immunity by creating a bright-line legal fiction that the suits were
against government officers in their capacity as individuals and not acting on behalf of the state. The Court
in Lee reaffirmed this "nominal party rule" but only with five votes[3]which proved to be the last time it
was invoked.[81] In Louisiana ex rel. Elliot v. Jumel, 107 U.S. 711 (1882),[82] a majority of the Court upheld
the "nominal party rule" but refused to invoke it on an technicality.[83] In New Hampshire v. Louisiana, 108
U.S. 76 (1883),[84] the Court abandoned the "nominal party rule" in favor of a "real party interest test."[85]
The Court openly rejected the rule (without necessarily overturning its previous decision) in In re Ayers,
123 U.S. 443 (1887).[86][87] Nevertheless, the Court did not overturn Lee but rather distinguished it
narrowly and continued to affirm its basic principles in Jumel and Ayers.[88]
United States v. Lee also sharply limited the sovereign immunity doctrine by implying that it could be
subordinated to other, more fundamental rights such as the Fifth Amendment's prohibition against "takings"
without just compensation and due process.[89] Justice Miller's ringing endorsement of the rights of
individuals is seen as endorsing the concept that, in the United States, the people are the sovereignnot the
government.[90] In Tindal v. Wesley, 167 U.S. 204 (1897),[91] the Supreme Court expressly extended the Lee
decision to "takings" suits against states (which had previously been barred by the Court's constitutional
interpretations).[88][92][93]
Although Lee seemed to invite a full-scale reconsideration of the doctrine of sovereign immunity,
subsequent Supreme Court decisions in Larson v. Domestic & Foreign Commerce Corporation, 337 U.S.
682 (1949)[94] and Malone v. Bowdoin, 369 U.S. 643 (1962)[95] sharply limited the impact of the Lee
Court's decision.[96][97] Larson and Malone specifically carved out only two areas in which an officer of the
United States may be sued: 1) If the officer acts outside her or his legally prescribed scope of authority, or
2) If the officer acts in a way that is unconstitutional.[98]
174
Interestingly, the Lee decision also created a contradiction within the Supreme Court's approach to federalstate relations. Article I, Section 8, Clause 17 of the United States Constitution bars the federal government
from acquiring the land of any state except with that state's express permission.[99] In United States v. Penn,
48 F. 669, 670 (C.C.E.D. Va. 1880), a circuit court had held that the federal government held no jurisdiction
over Arlington National Cemetery because it had not obtained Virginia's permission to hold title to the
land.[99] The Lee Court never addressed this issue, and in fact came to the opposite conclusion (its decision
to return the property to the Lee family being founded on other grounds).[99]
At least one legal historian has concluded that Lee also laid an early foundation for the doctrine of executive
immunity.[100]
In many ways, the Lee decision is also more famous for its defense of the rights of citizens than its
sovereign immunity jurisprudence. Miller's defense of the rights of the individual ("No man...is above the
law...") is considered "elegantly elaborated" by lawyer Lawrence Walsh.[101] Constitutional law scholar
Louise Weinberg called the language "ringing".[102] Another legal scholar called the language "remarkable"
and emphatic.[93]
Footnotes
1. United States v. Lee Kaufman. Wikisource.
2. Desty, Robert, ed. (1883). "United States v. Lee; Kaufman and another v. Same. December 4, 1882 (106 U.S.
196)" (http://books.google.com/books?id=9U03AAAAIAAJ&pg=PA240#v=onepage&f=false). Supreme Court
Reporter. Cases Argued and Determined in the United States Supreme Court, October Term, 1882: October,
1882-February 1883 (Saint Paul, MN: West Publishing Company) 1: 240286. Retrieved 2011-08-22.
3. Durchslag, 2002, p. 53.
4. Chase, 1930, p. 191.
5. United States v. Lee, 106 U.S. 196, 202, citing Hills v. Exchange Bank, 105 U.S. 319 (1881).
6. Meyer, 1998, p. 140.
7. Amar, 1987, p. 1512.
8. On this point, the Court was unanimous. See: Grant, 1996, p. 203, note 254.
9. Jackson, 1969, p. 96; Stephenson, 2003, p. 74.
10. Holt, 2010, p. 336.
11. Silber, 2003, p. 125.
12. "Arlington National Cemetery," 2009, p. 77.
13. Silber, 2003, p. 126.
14. Hansen, 2001, p. 69.
15. Chase, 1930, p. 173.
16. McCaslin, 2004, p. 79-80.
17. Atkinson, 2007, p. 25.
18. Chase, 1930, p. 175-176.
19. Chase, 1930, p. 176.
20. "Arlington," 2000, p. 77.
21. Poole, 2009, p. 54-55.
22. Poole, 2009, p. 55.
23. Chase, 1930, p. 180.
24. McCaslin, 2004, p. 82.
25. Atkinson, 2007, p. 26.
26. Chase, 1930, p. 182.
27. Randall, 1913, p. 35.
175
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
Chase, 1930, p. 183.

Chase, 1930, p. 183-184.
Chase, 1930, p. 184.
Chase, 1930, p. 184-185.
Chase, 1930, p. 185.
Chase, 1930, p. 187-188.
Chase, 1930, p. 189.
Carr v. United States. Wikisource.
Carr v. United States, 98 U.S. 433.
Chase, 1930, p. 192.
Chase, 1930, p. 193.
Chase, 1930, p. 193-194.
Randall, 1913, p. 36.
United States v. Lee, 106 U.S. 196, 196-199.
United States v. Lee, 106 U.S. 196, 199.
Bennett v. Hunter. Wikisource.
Tacey v. Irwin. Wikisource.
Atwood v. Weems. Wikisource.
Cooley v. O'Connor. Wikisource.
Meigs v. M'Clung's Lessee. Wikisource.
Osborn v. President Directors and Company of the Bank of the United States. Wikisource.
Davis v. Gray. Wikisource.
United States v. Lee, 106 U.S. 196, 215, citing Davis v. Gray, 83 U. S. 203 (1872) at 221.
United States v. Clarke. Wikisource.
Sisk, Noone, Steadman, and Lester, 2006, p. 80; Jaffee, 1963, p. 25.
Sisk, Noone, Steadman, and Lester, 2006, p. 81.
Sisk, Noone, Steadman, and Lester, 2006, p. 81-82.
Jacobs, 1972, p. 16.
176
82.
83.
84.
85.
86.
87.
88.
89.
90.
91.
92.
93.
94.
95.
96.
97.
98.
99.
100.
101.
102.
State of Louisiana Elliott v. Jumel. Wikisource.

Durchslag, 2002, p. 54.
State of New Hampshire v. State of Louisiana State of New York. Wikisource.
Ayers Scott McCabe. Wikisource.
Seamon, 1998, p. 173-174.
Pfafflin, 1992, p. 657.
Tindal v. Wesley. Wikisource.
Rosenblatt, 2000, p. 732; Seamon, 2001, p. 1081.
Berger, 2006, p. 543.
Larson v. Domestic & Foreign Commerce Corporation. Wikisource.
Malone v. Bowdoin. Wikisource.
Sisk, Noone, Steadman, and Lester, 2006, p. 82-88.
Meyer, 1998, p. 141.
Paust, 1999, p. 318, note 60.
Williams, 1997, p. 976.
Walsh, 1998, p. 1379.
Weinberg, 2001, p. 1171.
Bibliography
Amar, Akhil Reed. "Of Sovereignty and Federalism." Yale Law Journal. 96:1425 (June 1987).
"Arlington." Encyclopedia of the American Civil War: A Political, Social, and Military History.
David Stephen Heidler, Jeanne T. Heidler, and David J. Coles, eds. New York: W.W. Norton & Co.,
2000.
"Arlington National Cemetery." In Encyclopedia of the Veteran in America. William Pencak, ed.
Santa Barbara, Calif.: ABC-CLIO, 2009.
Atkinson, Rick. Where Valor Rests: Arlington National Cemetery. Washington, D.C.: National
Geographic Society, 2007.
Berger, Eric. "The Collision of the Takings and State Sovereign Immunity Doctrines." Washington &
Lee Law Review. 63:493 (Spring 2006).
Chase, Enoch Aquila. "The Arlington Case: George Washington Custis Lee against the United States
of America." Records of the Columbia Historical Society. 31/32: 1930.
Durchslag, Melvyn R. State Sovereign Immunity: A Reference Guide to the United States
Constitution. Westport, Conn.: Praeger, 2002.
Grant, Eric. "A Revolutionary View of the Seventh Amendment and the Just Compensation Clause."
Northwestern University Law Review. 91:144 (Fall 1996).
Hansen, Harry. The Civil War: A History. New York: Signet, 2001.
Holt, Dean W. American Military Cemeteries. Jefferson, N.C.: McFarland & Co., 2010.
Jackson, Percival E. Dissent in the Supreme Court: A Chronology. Norman, Okla.: University of
Oklahoma Press, 1969.
Jacobs, Clyde Edward. The Eleventh Amendment and Sovereign Immunity. Westport, Conn.:
Greenwood Press, 1972.
Jaffee, Louis L. "Suits Against Governments and Officers: Sovereign Immunity." Harvard Law
Review. 77:1 (1963).
McCaslin, Richard B. Lee in the Shadow of Washington. Baton Rouge: Louisiana State University
Press, 2004.
Meyer, Randy L. "The Supreme Court's Analysis
177 in Idaho v. Coeur D'Alene Tribe of Idaho: Is the
Young Exception to the Eleventh Amendment Inapplicable to Indian Tribe Claims?" Toledo Law
Review. 30:131 (Fall 1998).
Paust, Jordan J. "Non-Extraterritoriality of 'Special Territorial Jurisdiction' of the United States:
Forgotten History and the Errors of Erdos." Yale Journal of International Law. 24:305 (Winter 1999).
Pfafflin, James R. Encyclopedia of Environmental Science and Engineering. Florence, Ky.: Taylor &
Francis, 1992.
Poole, Robert M. On Hallowed Ground: The Story of Arlington National Cemetery. New York, N.Y.:
Walker & Co., 2009.
Randall, J.G. The Confiscation of Property During the Civil War. Indianapolis: Mutual Printing and
Lithographing Co., 1913.
Rosenblatt, Lauren E. "Removing the Eleventh Amendment Barrier: Defending Indian Land Title
Against State Encroachment After Idaho v. Coeur d'Alene Tribe." Texas Law Review. 78:719
(February 2000).
Seamon, Richard H. "The Asymmetry of State Sovereign Immunity." Washington Law Review.
76:1067 (October 2001).
Seamon, Richard H. "Separation of Powers and the Separate Treatment of Contract Claims Against
the Federal Government for Specific Performance." Villanova Law Review. 43:155 (1998).
Silber, Nina. Landmarks of the Civil War. New York: Oxford University Press, 2003.
Sisk, Gregory C.; Noone, Michael F.; Steadman, John Montague; and Lester, Urban A. Litigation
With the Federal Government. 4th ed. Philadelphia, Pa.: American Law Institute, 2006.
Stephenson, Donald Grier. The Waite Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.:
ABC-CLIO, 2003.
Walsh, Lawrence E. "The Future of the Independent Counsel Law." Wisconsin Law Review.
1998:1379 (1998).
Weinberg, Louise. "Of Sovereignty and Union: The Legends of Alden." University of Notre Dame
Law Review. 76:113 (June 2001).
Williams, Glenn T. "Temporary Immunity: Distinguishing Case Law Opinions on Executive
Immunity and Privilege as the Supreme Court Tackles an Oxymoron." Nova Law Review. 21:969
(Spring 1997).
Retrieved from "http://en.wikipedia.org/w/index.php?title=United_States_v._Lee&oldid=644649719"
Categories: 1882 in United States case law United States Supreme Court cases Takings Clause case law
United States federal sovereign immunity case law
United States Supreme Court cases of the Waite Court
178
United States v. United States District Court

United States v. U.S. District Court, 407 U.S.

297 (1972), also known as the Keith case, was
a landmark United States Supreme Court
decision that upheld, in a unanimous 8-0
ruling, the requirements of the Fourth
Amendment in cases of domestic surveillance
targeting a domestic threat.
The United States charged John Sinclair,
Lawrence 'Pun' Plamondon, and John Forrest
with conspiracy to destroy government
property. One of the defendants, Lawrence
'Pun' Plamondon, was also charged with the
dynamite bombing of an office of the Central
Intelligence Agency in Ann Arbor, Michigan.
The defendants were leaders of the radical
White Panther Party. In response to a pretrial
motion by the defense for disclosure of all
electronic surveillance information, Nixon's
attorney general, John Mitchell, claimed he
authorized the wiretaps pursuant to Title III of
the Omnibus Crime Control and Safe Streets
Act of 1968 and was not required to disclose
the sources. Though warrantless, the act
allows for an exception to prevent the
overthrow of the government and when "any
other clear and present danger to the structure
or existence of the Government" exists. The
Government contended that since the
defendants were members of a domestic
organization attempting to subvert and destroy
it, this case fell under the exception clause.
After reading the briefs and hearing oral
arguments by Constitutional attorney Hugh
"Buck" Davis,[1] Judge Damon Keith[2] of the
United States District Court for the Eastern
District of Michigan disagreed and ordered the
Government to disclose all of the illegally
intercepted conversations to the defendants.
The Government appealed, filing a petition for
a writ of mandamus with the Court of Appeals
for the Sixth Circuit to set aside the order. The
United States v. U.S. District Court

Argued February 24, 1972
Full case
United States v. United States District Court for
name
the Eastern District of Michigan, et al.
(Plamondon, et al., real parties in interest)
Citations
407 U.S. 297
(more)
Holding
The Court held government officials were obligated to obtain a
warrant before beginning electronic surveillance even if
domestic security issues were involved. The "inherent vagueness
of the domestic security concept" and the potential for abusing it
to quell political dissent made the Fourth Amendment
protections especially important when the government engaged
in spying on its own citizens.
Court membership
Chief Justice
Warren E. Burger
Associate Justices
William O. Douglas William J. Brennan, Jr.
Potter Stewart Byron White
Thurgood Marshall Harry Blackmun
Lewis F. Powell, Jr. William Rehnquist
Case opinions
Majority
Powell, joined by Douglas, Brennan, Stewart,
Marshall, Blackmun
Concurrence Burger (concurred in the result without opinion)
Concurrence Douglas
Concurrence White
Rehnquist took no part in the consideration or decision of the case.
Laws applied
U.S. Const. amend. IV
179
Sixth Circuit also rejected the Government's arguments and upheld

the lower court decision. The Supreme Court granted a writ of
certiorari and heard the case.

United States v. United
States District Court
Contents
1 The decision
2 Quotations
3 See also
4 References
5 External links
The decision
The Supreme Court upheld the prior rulings in the case, holding that the wiretaps were an unconstitutional
violation of the Fourth Amendment and as such must be disclosed to the defense. This established the
precedent that a warrant needed to be obtained before beginning electronic surveillance even if domestic
security issues were involved. Note that the decision applied only to domestic issues; foreign intelligence
operations were not bound by the same standards. The governing law for electronic surveillance of "foreign
intelligence information" between or among "foreign powers" is the Foreign Intelligence Surveillance Act
(FISA) of 1978.
Quotations
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance
power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and
discussion of Government action in private conversation. For private dissent, no less than open public
discourse, is essential to our free society.; Lewis Powell, writing for the Majority.
"As I read it - and this is my fear - we are saying that the President, on his motion, could declare name your favorite poison - draft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activists
to be a clear and present danger to the structure or existence of the Government."; Senator Hart,
quoted by Lewis Powell, writing for the Majority.
History abundantly documents the tendency of Government - however benevolent and benign its
motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment
protections become the more necessary when the targets of official surveillance may be those
suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the
Government attempts to act under so vague a concept as the power to protect "domestic security."
Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect
that interest becomes apparent.; Lewis Powell, writing for the Majority.
This is an important phase in the campaign of the police and intelligence agencies to obtain
exemptions from the Warrant Clause of the Fourth Amendment. For, due to the clandestine nature of
electronic eaves-dropping, the need is acute for placing on the Government the heavy burden to show
that "exigencies of the situation [make its] course
180 imperative." Other abuses, such as the search
incident to arrest, have been partly deterred by the threat of damage actions against offending
officers, the risk of adverse publicity, or the possibility of reform through the political process. These
latter safeguards, however, are ineffective against lawless wiretapping and "bugging" of which their
victims are totally unaware. Moreover, even the risk of exclusion of tainted evidence would here
appear to be of negligible deterrent value inasmuch as the United States frankly concedes that the
primary purpose of these searches is to fortify its intelligence collage rather than to accumulate
evidence to support indictments and convictions. If the Warrant Clause were held inapplicable here,
then the federal intelligence machine would literally enjoy unchecked discretion.; William O.
Douglas, in a concurring opinion.
Here, federal agents wish to rummage for months on end through every conversation, no matter how
intimate or personal, carried over selected telephone lines, simply to seize those few utterances which
may add to their sense of the pulse of a domestic underground.; William O. Douglas, in a concurring
opinion.
We are told that one national security wiretap lasted for 14 months and monitored over 900
conversations. Senator Edward Kennedy found recently that "warrantless devices accounted for an
average of 78 to 209 days of listening per device, as compared with a 13-day per device average for
those devices installed under court order." He concluded that the Government's revelations posed
"the frightening possibility that the conversations of untold thousands of citizens of this country are
being monitored on secret devices which no judge has authorized and which may remain in operation
for months and perhaps years at a time." Even the most innocent and random caller who uses or
telephones into a tapped line can become a flagged number in the Government's data bank.; William
O. Douglas, in a concurring opinion.
See also
Richard Nixon
John N. Mitchell
Telephone tapping
Foreign Intelligence Surveillance Act of 1978
ACLU v. NSA
John Sinclair (poet)
References
Works related to United States v. United States District Court at Wikisource
Text of United States v. U.S. District Court, 407 U.S. 297 (1972) is available from: Findlaw
navby=CASE&court=US&vol=407&page=297)Justia
(http://supreme.justia.com/us/407/297/case.html)LII
(http://www.law.cornell.edu/supct/search/display.html?terms=70153&url=/supct/html/historics/USSC_CR_0407_0297_ZS.html)
www.reuther.wayne.edu/files/UP00881.pdf (http://www.reuther.wayne.edu/files/UP00881.pdf) Achieved
files of Hugh "Buck" Davis.
1. http://www.reuther.wayne.edu/files/UP001881.pdf
181
2. [1] (http://www.fas.org/irp/congress/2003_cr/s051503.html)
External links
United States v. US District Court Significance (http://law.jrank.org/pages/23437/United-States-v-US-District-Court-Significance.html)
The Story of the United States vs. United States District Court (Keith): The Surveillance Power
(http://lsr.nellco.org/cgi/viewcontent.cgi?article=1047&context=columbia_pllt)
title=United_States_v._United_States_District_Court&oldid=644791598"
Categories: United States Supreme Court cases United States Fourth Amendment case law
1972 in United States case law United States Supreme Court cases of the Burger Court
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United States v. Yousef case brief
OUR POPULAR EBOOK:
United States v. Yousef327 F2d 56 (2d Cir. 2003)

Procedural History:
Appeal of criminal conviction.
Overview:
Ramzi Yousef (D), Wali Khan Amin Shah (D), and Abdul Hakim Murad (D) appealed from judgments of
conviction entered in the United States District Court for the Southern District of New York on charges
relating to a conspiracy to bomb twelve U.S. commercial airliners in Southeast Asia.
Ramzi Yousef (D) entered Manila under an assumed name in order to execute a plan to attack U.S.
airliners. Under the plan, bombs would be placed aboard twelve U.S. aircraft with routes in Southeast Asia
by five individuals. The conspirators would board the plane, assemble the bomb while in flight, and then
exit the plane during its first layover.
The plot was discovered two weeks before the intended execution, when Yousef (D) and Murad (D)
accidentally started a fire while burning chemicals in their Manila apartment. The fire department involved
the police department, which found the bomb components, a laptop with notes on the plan, and other
evidence. Philippine authorities arrested Murad (D) and Shah (D), but Shah (D) escaped and evaded capture
until a year later. Yousef (D) fled to Pakistan, but was captured the following month. Through a multicount
indictment, Yousef (D), Murad (D), and Shah (D) were charged with various crimes related to their
conspiracy to bomb the planes. A jury found all three guilty on all counts.
Issue:
Did the U.S. government (P) exceed its authority by trying an alleged terrorist in the United States, when
the criminal conduct occurred outside the United States, but involved its airliners?
Rule:
The US government did not exceed its authority by trying an alleged terrorist in the US when the criminal
conduct occurred outside the US but involved its airlines
Analysis:
The Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft generally regulates
jurisdiction over crimes committed on aircraft International law generally requires that there be a genuine
link between the state and the aircraft in order for the state to lawfully assert jurisdiction over crimes
committed on board.
Outcome:
The U.S. government (P) did not exceed its authority by trying an alleged terrorist in the United States,
when the criminal conduct occurred outside the United States but involved its airliners. jurisdiction is
supported by both domestic and international law.
Because the federal court had jurisdiction over the substantive crimes charged, including attempted
destruction of aircraft in the special aircraft jurisdiction of the United States, it also had derivative
jurisdiction over the conspiracy charges.
Congress is presumed to intend extraterritorial application of criminal statutes where the nature of the
crime does not depend on the locality of the criminal acts and where restricting the statute to U.S. territory
would severely diminish the statutes effectiveness. With respect to whether customary international law
provides a basis for jurisdiction over the case, United States law is not subordinate to customary
international law or necessarily subordinate to treaty based international law. Moreover, customary
international law does provide a substantial basis for jurisdiction by the United States through the passive
personality principle, because the case involved a plot to bomb U.S. aircraft that would have been carrying
U.S. citizens and crews destined for cities in the United States. jurisdiction is also appropriate under the
objective territorial principle because the purpose of the attack was to influence U.S. foreign policy.
Finally, Yousefs (D) conduct constitutes conduct proscribed by the Montreal Convention, and his
prosecution and conviction is both consistent with and required by the United States treaty obligations and
domestic law.
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184
Youngstown Sheet & Tube Co. v. Sawyer

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579
Youngstown Sheet & Tube Co. v. Sawyer

Argued May 1213, 1952
Full case
Youngstown Sheet & Tube Company, et al. v.
name
Charles Sawyer, Secretary of Commerce
Citations
343 U.S. 579
(more)
72 S. Ct. 863; 96 L. Ed. 1153; 1952 U.S. LEXIS
2625; 21 Lab. Cas. (CCH) P67,008; 1952 Trade
Cas. (CCH) P67,293; 62 Ohio L. Abs. 417; 47
Ohio Op. 430; 26 A.L.R.2d 1378; 30 L.R.R.M.
2172
Prior history Injunction granted to plaintiffs, 103 F. Supp. 569
(D. D.C. 1952); injunctions stayed, 197 F.2d 582
(D.C. Cir. 1952); cert. granted, 343 U.S. 937
(1952)
Holding
The President did not have the inherent authority to seize private
property in the absence of either specifically enumerated
authority under Article Two of the Constitution or statutory
authority conferred on him by Congress. DC District Court
affirmed.
Court membership
Chief Justice
Fred M. Vinson
Associate Justices
Hugo Black Stanley F. Reed
Felix Frankfurter William O. Douglas
Robert H. Jackson Harold H. Burton
Tom C. Clark Sherman Minton
Majority
Case opinions
Black, joined by Frankfurter, Douglas, Jackson,
Burton
Concurrence Frankfurter
Concurrence Douglas
Concurrence Jackson
185
Concurrence Burton
Concurrence Clark
Dissent
Vinson, joined by Reed, Minton
Laws applied
U.S. Const. art. II
(https://supreme.justia.com/cases/federal/us/343/579/) (1952), also

commonly referred to as The Steel Seizure Case, was a United
States Supreme Court decision that limited the power of the
President of the United States to seize private property in the absence
of either specifically enumerated authority under Article Two of the
United States Constitution or statutory authority conferred on him by

Youngstown Sheet &
Tube Company v.
Sawyer
Congress. It was a "stinging rebuff" to President Harry Truman.[1]

Justice Hugo Black's majority decision was, however, qualified by the separate concurring opinions of five
other members of the Court, making it difficult to determine the details and limits of the President's power
to seize private property in emergencies. While a concurrence, Justice Jackson's opinion is used by most
legal scholars and members of Congress to assess executive power.
Contents
1 Background
2 Prior history
3 Proceedings before the Court
4 Majority opinion
5 Concurring opinions
5.1 William O. Douglas
5.2 Felix Frankfurter
5.3 Robert Jackson
5.4 Harold Hitz Burton
5.5 Tom Campbell Clark
6 Dissenting opinion
7 Effects of the decision
8 See also
9 References
10 Further reading
11 External links
Background
The United States was involved in the Korean War in 1950 when troops from North Korea invaded the
Republic of Korea. President Harry Truman sent troops to South Korea without asking for a Congressional
declaration of war on North Koreaalbeit with a United Nations resolution.
186
President Truman chose not to impose price controls, as the federal government had done during World War
II. Instead, the administration attempted to avoid inflationary pressures through creation of a Wage
Stabilization Board that sought to keep down the inflation of consumer prices and wages while avoiding
labor disputes whenever possible. Those efforts failed, however, to avoid a threatened strike of all of the
major steel producers by the United Steel Workers of America when the steel industry rejected the board's
proposed wage increases unless they were allowed greater price increases than the government was prepared
to approve.
The Truman administration believed that a strike of any length would cause severe dislocations for defense
contractors and for the domestic economy as a whole. Unable to mediate the differences between the union
and the industry, Truman decided to seize their production facilities, while he kept the current operating
management of the companies in place to run the plants under federal direction.
Truman might have, rather than seizing the plants, invoked the national emergency provisions of the Taft
Hartley Act to prevent the union from striking. The administration rejected that option, however, both from
a distaste for the Act, which had been passed over Truman's veto five years earlier, and because the
administration saw the industry, rather than the union, as the cause of the crisis.
The administration also rejected use of the statutory procedure provided under Section 18 of the Selective
Service Act of 1948 that might have permitted seizure of the industry's steel plants on the ground that
compliance with this procedure was too time-consuming and the outcome of compliance too uncertain.
Truman chose not to go to Congress to obtain additional statutory authorization for a seizure of the steel
industry for the same reasons. That left invocation of the President's inherent authority to act in response to
a national emergency.
The Steelworkers favored government seizure of the plants under any available theory to a TaftHartley
injunction against it; Arthur Goldberg, General Counsel for the Steelworkers and the Congress of Industrial
Organizations, argued that the President had the inherent power to seize the plants, as well as the statutory
authority under the Selective Service Act and the Defense Production Act.
The steel industry, on the other hand, appears to have been taken by surprise, as it had apparently assumed
until shortly before Truman made his April 8, 1952 announcement that he would take the less risky step of
seeking a national emergency injunction under the TaftHartley Act instead. However, the industry was, as
events showed, ready to act once he announced the seizure by a national television and radio broadcast.
Prior history
The steel companies reacted immediately, sending attorneys to the home of United States District Judge
Walter Bastian within a half hour of the end of the President's speech to ask for issuance of a temporary
restraining order. Judge Bastian scheduled a hearing for 11:30 the next day to hear arguments on the motion.
Because hearings on emergency motions came before a randomly chosen judge, the hearing the next day
was before Judge Alexander Holtzoff, a Truman appointee. Judge Holtzoff denied the motion on the ground
that the balance of equities favored the government.
The case was then assigned to Judge David Andrew Pine, who heard the steel companies' motions for a
preliminary injunction. From a tactical perspective, both sides focused on the wrong issues: In its papers, the
government stressed the ultimate constitutional issue of whether the President had the power to seize the
187
mills; the steel companies appeared to be shying away from that issue by focusing on the equities and asking
the Court merely to enjoin the federal government from entering into a collective bargaining agreement with
the Steelworkers.
Judge Pine indicated, however, that he was interested in the fundamental issue of Presidential power; even
so, the steel companies' attorneys continued to steer the discussion back to the equities and the President's
statutory power under the TaftHartley Act. After the attorney for one of the smaller producers, Armco
Steel Corporation, finally challenged the government's right to seize its property without Congressional
authorization, Judge Pine then asked the attorney for the government to respond.
The assistant Attorney General may have done more harm to the government's case than the steel companies
had. Asked by Judge Pine for the source of the President's authority, he offered "Sections 1, 2 and 3 of
Article II of the Constitution and whatever inherent, implied or residual powers may flow therefrom". When
the Court asked if the government took the position that "when the sovereign people adopted the
Constitution...it limited the powers of the Congress and limited the powers of the judiciary, but it did not
limit the powers of the Executive", he assured Judge Pine that this was the case. He was, however, unable to
name any cases that had held that the President had this power.
His presentation committed the Truman administration to an absolutist version of Presidential power that
went beyond the administration's own position. Truman's supporters in Congress first distanced themselves
from the argument, then spread the message that Truman disavowed it as well. Finally, Truman issued a
statement responding to a constituent's letter in which he acknowledged in very general terms the limitations
that the Constitution imposed on his power to respond in a national emergency.
Two days later, Judge Pine issued an injunction barring the government from continuing to hold the steel
plants it had seized. The Steelworkers began their strike within minutes of the announcement of the
injunction. The government promptly appealed.
It first, however, formally requested that Judge Pine stay his order, and permit the government to resume
control of the plants, ending the strike by the Steelworkers. He declined to do so. The government then
applied for a stay in the D.C. Circuit. The Court, sitting en banc, granted the government's request for a stay
by a five to four vote on April 30, then denied a motion for reconsideration by the steel companies that
sought to amend the stay order to bar the government from increasing wages by the same margin the
following day. The stay granted by the Court of Appeals was conditioned, however, on the government's
filing of a petition for certiorari by May 2, 1952, and only lasted until the Supreme Court acted on that
petition.
The government filed its petition for certiorari on May 2, only to discover that the steel companies had
already filed one of their own. The government renewed its request for a stay.
In the meantime, the White House convened a meeting between the Steelworkers and the major steel
companies on May 3. Those talks made rapid progress and might have produced an agreement, if the
announcement that the Supreme Court had granted certiorari and issued a stay allowing the government to
maintain possession of the steel millsbut coupled with an order barring any increase in wages during the
pendency of the appealhad not removed any incentive the steel companies had to reach agreement on a
new contract with the union.
Proceedings before the Court

188
The Court set the matter for oral argument on May 12, 1952, less than ten days later. The government's brief
opened with an attack on Judge Pine's application of equitable principles to the facts before him, but devoted
much of its 175 pages to the historical records of governmental seizure of private property during wartime,
from the Revolutionary War and the War of 1812 through Lincoln's Emancipation Proclamation and seizure
of telegraph and railroad lines to the government's seizure of industrial properties in the First and Second
World Wars.
The steel industry's brief focused instead on the lack of statutory authority for this seizure, emphasizing
Congress' decision when enacting the TaftHartley Act to give the President the power to seek an injunction
against strikes that might affect the national economy instead. It denied that the President had any power to
seize private property without express legislative authorization, noting that Truman himself had asked for
such legislative authority when the United Mine Workers of America went out on strike in 1950.
The Court set aside five hours for oral argument, while allowing the Steelworkers and the railroad unions to
speak as amicus curiae. Before an overflow crowd, John W. Davis argued for the steel companies that the
President had no powers to make laws or, more particularly, to seize property without Congressional
authorization. He explained away his own actions when he had defended the government's seizure of
property while he had been Solicitor General in the Wilson administration and urged the justices to look
beyond the transitory labor dispute before them to the constitutional principles at stake, closing with
Thomas Jefferson's words, slightly misquoted, "In questions of power let no more be said of confidence in
man but bind him down from mischief by the chains of the Constitution". Justice Frankfurter was the only
Justice to interrupt Davis with a question, and only one, during his argument.
Truman's Solicitor General Philip B. Perlman had a rockier argument, as the Justices pressed him with
questions on many of the points he made. Justice Jackson took pains to distinguish the facts concerning the
seizure of the North American Aviation Company in 1941 which he had overseen as Attorney General at the
time. Justice Douglas commented that if Perlman were correct as to the scope of the President's powers, then
there was no need for Congress. When Perlman attempted to close on a rousing note, reminding the Justices
that this was wartime, Justices Jackson and Frankfurter immediately contradicted him, noting that Congress
had not declared war.
Goldberg, speaking for the Steelworkers, addressed whether the TaftHartley Act would have allowed for
injunctive relief in these circumstances. The attorneys for the railroad brotherhoods, who were parties to a
similar action coming up for review, addressed the President's inherent powers. Davis then gave his rebuttal,
using only a few minutes of the hour he had reserved.
Even despite the Court's evident lack of sympathy for the broad claims of inherent power made by the
government, Truman and many other observers expected the Court to uphold his authority to act in the
absence of express statutory authorization. Many commentators predicted that the Court would avoid the
constitutional question, while others stressed the background that all of the Justices had in the New Deal and
Fair Deal, when the powers of the Presidency had expanded greatly, and the past support of Justices such as
Black, Reed, Frankfurter, and Douglas for the expansive application of the President's war powers.
As it turns out, most of those predictions were wrong. While Justice Burton harbored fears at one point that
he might be the only Justice to vote against the government's position, he was encouraged by his private
conversations with other Justices. In the end, the Court voted 63 to affirm the District Court's injunction
barring the President from seizing the steel plants.
189
Majority opinion
Justice Black wrote for the majority, although the number of divergent concurring opinions made it clear
that he did not necessarily speak for it. Black took, as he often did, an absolutist view, holding that the
President had no power to act except in those cases expressly or implicitly authorized by the Constitution or
an act of Congress.
Concurring opinions
William O. Douglas
Douglas took a similarly absolutist approach to the President's assertion of inherent power to cope with a
national emergency.
Felix Frankfurter
Frankfurter avoided the sweeping condemnation of the administration's claims that Black and Douglas had
offered. While he would not rule out the possibility that the President might acquire the power to take
certain actions by a long course of conduct unobjected to by Congress, he found the statutory history
persuasive evidence that Congress had not acquiesced, much less authorized seizure of private property in
the absence of a formal declaration of war.
Robert Jackson
Jackson's opinion took a similarly flexible approach to the issue, eschewing any fixed boundaries between
Congress' and the President's power. Jackson divided Presidential authority vis--vis Congress into three
categories (in descending order of legitimacy):
Cases in which the President was acting with express or implied authority from Congress
Cases in which Congress had thus far been silent
Cases in which the President was defying congressional orders (the "third category")
Harold Hitz Burton

Burton likewise held that Congress, not the President, possessed the power to act in emergencies because it
had exclusive power to pass legislation. He relied on the language and legislative history of the TaftHartley
Act to find that Congress had not authorized seizure of plants involved in a labor dispute without express
legislative authorization. He hedged, however, on whether the President might, in more extreme
circumstances, have authority to act.
Tom Campbell Clark

Justice Clark, who had been Truman's Attorney General for four years before Truman appointed him to the
Court, rejected Black's and Douglas' absolutist approach, holding that the President did have some inherent
power to act in the case of grave and imperative national emergencies. Clark refused, however, to define the
boundaries of that power; in his view the fact that Congress had provided in the TaftHartley Act, the
190
Selective Service Act or the Defense Production Act for procedures that the executive could have used,
ended the discussion by barring the President from relying on any inherent powers he might otherwise have
to choose a solution other than the ones that Congress had allowed.
Dissenting opinion
Chief Justice Vinson dissented; Justices Reed and Minton joined him. His opinion dealt at some length with
the history of presidential seizures; in the oral presentation of his opinion he went out of his way to make a
sarcastic reference to the contrary positions that Jackson and Clark had taken when they were the Attorneys
General for Roosevelt and Truman, respectively. Rejecting the view that Congress had limited the
executive's authority to seize property in this case by providing for different procedures in the legislation it
had enacted, Vinson's opinion nonetheless appeared to recognize Congress' primacy in enacting legislation,
justifying the seizure in this case as necessary to preserve the status quo so that Congress could act in the
future, but mocking arguments based on the Constitution's provision allowing the President to recommend
legislation, rather than to make it himself, as "the messenger-boy concept of the Office".
Effects of the decision

Within minutes of the Court's ruling, Truman ordered Commerce Secretary Charles Sawyer to return the
steel mills to their owners. Sawyer did so immediately. The Steelworkers went out on strike again shortly
thereafter. The strike lasted for more than fifty days until the President threatened to use the somewhat
cumbersome procedures under the Selective Service Act to seize the mills.
Truman was stunned by the decision, which he continued to attack years later in his Memoirs. Justice Black
was concerned enough that Truman would take the decision personally that he invited Truman and his
fellow Justices to a party at his home. Truman, still smarting from the defeat, was mollified somewhat by
Black's hospitality; as he told Black, "Hugo, I don't much care for your law, but, by golly, this bourbon is
good".Template:Http://www.nytimes.com/2004/02/01/weekinreview/the-nation-social-court-the-justicewho-came-to-dinner.html
The multiplicity of opinions made it difficult to determine just what the Court had decided as to whether and
when the President had authority to act without Congressional authorization. In large part this was the result
of the fact that the administration had made a weak casethe evidence of an actual emergency was tenuous,
given the substantial stockpiles of steel products in many sectors of the economy at the timeeven weaker
by overstating its position and offering incoherent arguments in the early phases of the litigation that turned
public opinion against it, while framing the public debate in the most simplistic terms.
The decision nonetheless has had a broad impact. It represented a check on the most extreme claims of
executive power at the time. It also represented the Court's assertion of its own role in intervening in
political questions, as the Court later did in Baker v. Carr and Powell v. McCormack. The Court also applied
the Frankfurter-Jackson approach to analyzing Congress' legislative authorization of Presidential action in
invalidating efforts by the Nixon administration to plant wiretaps without prior judicial approval, while
citing it more generally in support of its decision to permit litigation against the President to proceed in
Clinton v. Jones. The high court also relied on Youngstown in Medelln v. Texas, 06-984 (2008). In that
case, President Bush had pressured the state of Texas to review the murder conviction of a Mexican citizen
who had tortured and raped two teenage girls in 1993, arguing that a 2004 decision by the International
Court of Justice (ICJ) required law enforcement authorities to tell the accused of his right under the Vienna
191
Convention to notify Mexican diplomats of his detention. In a 6-to-3 decision, the Court held that ICJ
rulings were not enforceable in the United States, and Bush's actions were unconstitutional. Quoting
Youngstown Sheet & Tube, Chief Justice John Roberts concluded, "The president's authority to act, as with
the exercise of any governmental power, 'must stem either from an act of Congress or from the Constitution
itself.'"[2]
But the Court drew back from some of the implications of its decision, refusing to rely on Youngstown as
authority to review the failed challenges brought against the War in Vietnam and deferring to the
Executive's authority over foreign policy in cases such as Zemel v. Rusk. The Court cited Youngstown in the
2006 decision Hamdan v. Rumsfeld.
See also
Burnet v. Logan: another Youngstown Steel case
References
1. William Rehnquist, The Supreme Court 273 (2d ed. 2004).
2. Quoted in David Stout, "Justices Rule Against Bush on Death Penalty Case," New York Times, March 25, 2008.
(http://www.nytimes.com/2008/03/25/washington/25cnd-texas.html)
Further reading
Corwin, Edward S. (1953). "The Steel Seizure Case: A Judicial Brick without Straw". Columbia Law
Review (Columbia Law Review Association, Inc.) 53 (1): 5366. doi:10.2307/1119047
(https://dx.doi.org/10.2307%2F1119047). JSTOR1119047 (https://www.jstor.org/stable/1119047).
Gifford, Donald G. (2010). Suing the Tobacco and Lead Pigment Industries: Government Litigation
as Public Health Prescription (http://www.press.umich.edu/titleDetailDesc.do?id=291047). Ann
Arbor: University of Michigan Press. p.318. ISBN978-0-472-11714-7.
Marcus, Maeva (1977). Truman and the Steel Seizure Case: The Limits of Presidential Power. New
York: Columbia University Press. ISBN0-231-04126-8.
Westin, Alan F. (1990). The Anatomy of a Constitutional Law Case: Youngstown Sheet and Tube Co.
v. Sawyer, the Steel Seizure Decision. New York: Columbia University Press. ISBN0-231-07334-8.
External links
^ Text of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) is available from: Findlaw
navby=CASE&court=US&vol=343&page=579)Justia
(http://supreme.justia.com/us/343/579/case.html)
Youngstown Sheet & Tube Co. v. Sawyer Case Brief at Lawnix.com
(http://www.lawnix.com/cases/youngstown-sawyer.html),
192
title=Youngstown_Sheet_%26_Tube_Co._v._Sawyer&oldid=658691321"
United States Constitution Article Two case law United Steelworkers litigation
United States labor case law United States Supreme Court cases of the Vinson Court
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