42 Tulsa L. Rev. 681 (2006-2007)
Restoring the Balance: The Hamdan Decision and Executive War Powers

handle is hein.journals/tlj42 and id is 689 raw text is: RESTORING THE BALANCE: THE HAMDAN
DECISION AND EXECUTIVE WAR POWERS
Seth Weinberger*
I.   INTRODUCTION
In November 2001, Salim Ahmed Hamdan, a former driver for Osama bin Laden,
was detained in Afghanistan by U.S. soldiers and subsequently transferred to the
Guantanamo Bay Detention Center in June 2002. In July 2003, President George Bush,
pursuant to his November 13, 2001, authorization of military tribunals to try alien enemy
combatants,1 announced that Hamdan was to be designated as an enemy combatant and
2
therefore eligible for trial by military tribunal. The tribunal began in August 2004 but
was halted in November as the U.S. District Court for the District of Columbia ruled that
the military tribunals violated both U.S. military law and U.S. obligations under the
Geneva Convention, in particular the requirements that detainees during time of war
must be treated as prisoners of war unless a special hearing board determines otherwise.3
In July 2005, the U.S. Court of Appeals for the D.C. District reversed the lower court's
opinion,4 and, in the following November, the U.S. Supreme Court agreed to hear the
case.5 Chief Justice John Roberts recused himself due to his participation in the appeals
court decision,6 and in July 2006, the Court ruled 5 to 3 that the military tribunals
violated U.S. military law and the Geneva Conventions.7
There were many arguments on which the Supreme Court upheld Hamdan's
petition, including the applicability of Common Article 3 of the Geneva Conventions8
and Article 36 of the Uniform Code of Military Justice.9 However, perhaps the most
important impact of the ruling, not only for Hamdan and other proclaimed enemy
combatants but for the scope and nature of executive power itself, is the implication of
the decision for presidential war powers.10 It is this aspect that this article examines.
* Assistant Professor, Department of Politics and Government, The University of Puget Sound.
1 66 Fed. Reg. 57833 (Nov. 16, 2001).
2. Adam Liptak, Tribunals Move from Theory to Reality, N.Y. Times A12 (July 4, 2001).
3. Hamdan v Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004).
4 Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005).
5. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
6. Id at 2750.
7. Id. at 2798.
8. Geneva Convention Relative to the Treatment of Prisoners of War (Aug. 12, 1949), 6 U.S.T. 3316,
9. 10 U S.C. § 836 (2000).
10. The New York Times referred to the Hamdan decision as a defining moment in the ever-shifting

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