Resources

1. Who is Salim Ahmed Hamdan and why has his case been brought before the United States Supreme Court?

Hamdan was the driver for Osama Bin Laden, and may have been a body guard and close confidant. He is challenging the constitutionality and validity of military tribunals set up to try accused "enemy combatants" being held in Guantanamo Bay, Cuba.

2. Why does Salim Ahmed Hamdan's lawyer believe his client is being unconstitutionally detained?

Hamdan's lawyer believes that the tribunals have not been authorized by Congress, and that the executive branch does not have the authority to call for them. He also states that the tribunals do not offer a proper appeals process and therefore violate due process protections offered in the Bill of Rights. Lastly, he contends the tribunals violate the terms of the Geneva Conventions, a treaty the United States has agreed to abide by.

3. How does the Government justify trying Hamdan in a military tribunal instead of in a civilian court?

The government claims that the United States is at War and Hamdan was caught fighting against the United States. Therefore he was an “enemy combatant.” As an enemy combatant, Hamdan is only afforded the due process rights granted by the Uniform Code of Military Justice. The president claims that constitutional authority grants the executive branch the right to try accused war criminals by military tribunal. Further, the executive branch claims it has the power to do this on its own, without oversight by any other branch of government.

4. Can Congress constitutionally suspend habeas corpus during times of national crisis? Can the President?

Answers will vary. Article I lists the powers of Congress and Section 9 lists limitations on Congress' power, including the specific conditions that must be met if habeas corpus is to be suspended. Some students may say that this implies that the suspension of habeas corpus is something only Congress may do. Others may say that the president's power as commander in chief of the military, explained in Article II, gives him the power to suspend habeas corpus within a military context.

5. Do you think the executive branch has the authority to create military tribunals for Guantanamo Bay detainees? Why or why not?

Yes, Congress gave this authority to the administration when they authorized the use of military power by the White House after the September 11, 2001 terrorist attacks. However, the President - as Commmander in Chief - has this power regardless of congressional authorization.

No, the executive branch doesn't have the authority to create military tribunals without the consent of the Congress. Congressional authority and judicial oversight is required under the Constition.

6. United States citizens accused of a crime have certain rights as listed in the Bill of Rights. Also, Congress and the President have certain powers outlined in Article I, section 8 and 9, as well as Article II, section 2 and 3 of the Constitution which effect the rights of the accused . In your own words, list these rights and powers. Do you think Detainees should have these rights? Why.

Rights of the accused include:

• the right to be secure from unreasonable government searches without warrants issued with probable cause;
• the right to a grand jury indictment for capital offenses except when in service in War or times of public danger;
• freedom from being tried twice for the same crime;
• freedom from being a witness against themselves;
• the right to due process;
• the right to a speedy jury trial in the jurisdiction of where the crime was allegedly committed;
• the right to know what they are being accused of;
• the right to confront witnesses against them, and to secure witnesses for themselves;
• the right to a lawyer;
• freedom from excessive bail or fines;
• and freedom from cruel and unusual punishment.

Congress...

• can punish counterfeiters;
• can create tribunals and lesser courts;
• can define and punish crimes that are committed at sea and in violation of the Law of Nations;
• cannot suspend the right of habeas corpus , unless in times of rebellion, invasion, or if public safety is at stake;
• cannot enact a law that singles out an individual or group for punishment without a trial;
• ex post facto laws cannot be enacted.

The President...

• is Commander in Chief of the armed forces;
• can grant reprieves and pardons;
• ensures that the law is faithfully executed.

Yes, detainees should have the rights of the accused because…

• The United States is detaining them and should afford them the same rights that it would afford its citizens.
• The Constitution and the Fifth Amendment mention limiting these rights "in time of War or public danger" and we are not currently in immediate danger.
• The Supreme Court decided in Hamdi v. Rumsfeld (2004) that “enemy combatants” must be offered the chance to oppose detention before a neutral decisionmaker.

No, detainees should not have the rights of the accused because…

• The detainees are not citizens and do not need to be provided with the same rights as citizens.
• National security takes precedence over criminal procedure issues in Wartime.
• As “enemy combatants”, the detainees should only be afforded the protections provided by the Geneva Conventions.

Extensions

1. Refer to the Detainee Treatment Act, that presents guidelines for the treament of accused war criminals and "enemy combatants," and summarize the due process rights that it affords "enemy combatants" being held at Guantanamo Bay, Cuba.

• Text of the Detainee Treatment Act (2005)
  http://jurist.law.pitt.edu/gazette/2005/12/detainee-treatment-act-of-2005-white.php

2. Have students research the following Supreme Court cases that directly involve "enemy combatants". Discuss the importance of each case in class.

• Hamdi v. Rumsfeld (2004)
  Bill of Rights Institute eLesson

• Rumsfeld v. Padilla (2004)
  http://supct.law.cornell.edu/supct/html/03-1027.ZS.html