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Significant U.S. Supreme Court Opinions

Ex parte Milligan, 71 U.S. 2 (4 Wall.) (1866), holding that a military commission convened to try Lambdin Milligan did not have jurisdiction to try him because he was a citizen of Indiana, Indiana was not in rebellion, and civilian courts in Indiana continued to function. testing

Ex parte Quirin, 317 U.S. 1 (1942), upholding authority of the President of the United States to try certain persons by military commission. 

In re Yamashita, 327 U.S. 1 (1946), upholding trial by military commission of Japanese General Tomoyuki Yamashita.

Johnson v. Eisentrager, 339 U.S. 763 (1950), upheld the jurisdiction of military tribunals to try non-resident enemy aliens abroad and limited access to U.S. federal civilian courts for non- resident enemy aliens detained abroad.

Rasul v  Bush, 542 US 466 (2004), holding that “United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.”

Hamdi v  Rumsfeld, 542 US 507 (2004), holding that “due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.”

Hamdan v  Rumsfeld, 548 US 557 (2006), holding military commissions convened under the President’s Military Order of November 13, 2001 did not comply with U.S. or international law.  This opinion reversed and remanded the opinion of the U.S. Court of Appeals for the D.C. Circuit in this case (Hamdan v. Rumsfeld, 415 F. 3d 33 (D.C. Cir. 2005).

Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012): Holding that providing material support for terrorism was not recognized as an offense under international law of war and therefore his conviction could not stand.

Boumediene v. Bush, 553 US 723 (2008), holding that detained aliens determined to be enemy combatants at Guantanamo Naval Base have the habeas corpus privilege and Section 7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. § 2241(e), operates as an unconstitutional suspension of the writ.

Significant U.S. Court of Appeals for the District of Columbia Circuit Opinions

Al Bahlul v. United States, 11-1324 (D.C. Cir. June 12, 2015); holding that Mr. al Bahlul’s conviction for inchoate conspiracy by a law of war military commission violated the separation of powers enshrined in Article III, § 1. The Court reasoned that while Congress retains the authority it always had to proscribe domestic offenses through the criminal law in the civil courts; its’ authority is limited by the international law of war as the Constitution expressly ties this authority to “the Law of Nations,” U.S. Const. art. I, § 8, cl, 10. Based upon this rationale, the Court vacated Mr. al Bahlul’s conviction for inchoate conspiracy.

Al Bahlul v. United States, 11-1324 (D.C. Cir. July 14, 2014) (en banc): The Court rejected Mr. Bahlul’s ex post facto challenge to his conspiracy conviction. The Court remanded the conviction to the original D.C. Circuit panel that first heard the case to consider the four alternative challenges he also raised. Furthermore, the Court vacated Mr. Bahlul’s convictions of providing material support for terrorism and solicitation of others to commit war crimes. After the panel considers the alternative challenges, the case is remanded to the CMCR to determine the effect, if any; the Court’s elimination of the two aforementioned charges will have on sentencing.

In re Al-Nashiri, 791 F.3d 71 (D.C. Cir. 2015), denying Mr. al Nashiri's petition for mandamus and prohibition. Mr. al Nashiri alleged that military judges are assigned to the CMCR in violation of the Appointments Clause, U.S. CONST. art. II, § 2, cl. 2, and cannot be freely removed in violation of the Commander-in-Chief Clause, id. cl. 1. The court found Nashiri did not meet the standard for issuance of a writ of mandamus or prohibition because Mr. Nashiri could adequately raise his constitutional challenges on appeal from final judgment.

Significant U.S. Court of Military Commission Review Opinions

The History of the U.S. Court of Military Commission Review describes the significant decisions of that court.
Hicks v. United States, CMCR 13-004 (February 18, 2015): On February 18, 2015, the USCMCR set aside and dismissed the findings and vacated the sentence. The Court ruled that Mr. Hicks failure to resubmit his appellate waiver within 10 days after the convening authority provided notice of action invalidated the appellate waiver submitted as part of the pretrial agreement. Accordingly, determining that the case was properly before it for appellate review, the Court relied on the precedent of Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) (en banc), and ruled that it was a plain ex post facto error to try Mr. Hicks by military commission for the offense of providing material support to terrorism.

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