Concurring opinions: Campbell, Catron, Daniel, Grier, Nelson, Wayne
Dissenting opinions: Curtis, McLean
Dred Scott was born into slavery in Virginia about 1795. His original owner was Peter Blow, a plantation owner. Although the title to Scott would be transferred several times, Blow's family remained connected to Scott throughout his life.
Blow moved to St. Louis with his family and slaves in 1827. In 1833, after Blow's death, Scott was sold to John Emerson, a surgeon in the U.S. Army. In 1834 Emerson took Scott to the free state of Illinois, and in 1836 to the Upper Louisiana territory, which was to remain free of slavery under the Missouri Compromise of 1820. While in the Wisconsin territory, Scott married Harriet Robinson, also a slave. They had two daughters.
Eventually, Scott and Emerson returned to Missouri, but the doctor died shortly thereafter. Upon Emerson's death, title to Scott transferred to his widow, E. Irene Sanford Emerson, who hired the slave out to families in St. Louis. Irene Emerson then moved to Massachusetts, leaving Scott and his family behind. She married Calvin Clifford Chaffee, a New England abolitionist, without telling him that she held title to a slave in St. Louis.
In 1846 Henry T. Blow, wealthy son of Scott's original owner, initiated a lawsuit in Missouri state courts to gain Scott's freedom. Blow and Scott believed that Scott no longer had slave status because he had lived on free soil. While the courts considered this petition, Scott remained in the custody of the St. Louis sheriff, and was hired out at $5 per month.
Scott received a favorable decision at the trial court level, but lost in the Missouri Supreme Court. When state courts rejected Scott's bid for emancipation, Blow arranged for ownership of the slave to be transferred to Irene Chaffee's brother, John Sanford (whose name was misspelled “Sandford” in Court records) of New York. This sale allowed Scott to take his case to federal court under diversity of citizenship jurisdiction--Scott was a citizen of Missouri and Sanford of New York. Sanford argued that the suit should be dismissed because blacks could not be citizens. The lower federal courts seemed perplexed by the issue. In the end, they ruled in favor of Sanford but suggested that for legal purposes Scott may be a citizen. From 1854 to 1857, while the federal courts considered his cause, Scott lived in St. Louis with virtually no restraints on his freedom.
By the time the case arrived at the U.S. Supreme Court in 1856, the facts and the political situation had grown increasingly complex. In 1854, under mounting pressure, Congress had repealed the Missouri Compromise, replacing it with legislation declaring congressional neutrality on the issue of slavery. Given this new law and the growing tensions between the North and the South and the free and slave states, some observers speculated that the Court would decline to decide the case.
For at least a year, the Court chose that route. Historians, in fact, have suggested that after hearing the case the justices wanted simply to affirm the state court's decision, thereby evading the issue of slavery and citizenship for blacks. But when Justice James Wayne, a Jackson appointee from Georgia, insisted that the Court deal with these concerns, the majority of the others--including Chief Justice Taney, a former slaveholder--went along. Waiting until after the presidential election, a very divided Court (nine separate opinions were written) announced its decision.
Taney's opinion held that Scott was still a slave. From the perspective of northerners and abolitionists, the opinion was among the most evil and heinous ever issued by the Court. Opponents of slavery used the ruling to rally support for their position; they took aim at Taney and the Court, claiming that the institution was so pro-South that it could not be taken seriously. Northern newspapers aroused anti-Court sentiment around the country with stories about the decision. Members of Congress lambasted the Court for the raw and unnecessary display of judicial power it had exercised in striking down the Missouri Compromise. As for the chief justice, his reputation was forever tarnished. Even after his death, Congress resisted commissioning a bust of him to sit beside those of other chief justices in the Capitol's Supreme Court room.
To southerners, Scott was a cause for celebration. Indeed, Taney's notions of slavery and dual federalism appeared in a more energized form just a few years later when South Carolina issued its Declaration of the Causes of Secession. President Abraham Lincoln presented precisely the opposite view--the Marshall approach--in his 1861 inaugural address, but his words could not prevent the outbreak of war.
mr. chief justice taney delivered the opinion of the Court.
… The question is simply this: can a negro whose ancestors were imported into this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen. One of these rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.
It will be observed, that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a state, in the sense in which the word "citizen" is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only; that is, of those persons who are the descendants of Africans who were imported into this country and sold as slaves....
The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body, who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. They are what we familiarly call the "sovereign people," and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty. We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can, therefore, claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
In discussing this question, we must not confound the rights of citizenship which a state may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of a citizen, and to endow him with all its rights. But this character, of course, was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can, by naturalizing an alien, invest him with the rights and privileges secured to a citizen of a State under the federal government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character.
It is very clear, therefore, that no State can, by any Act or law of its own, passed, since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And for the same reason it cannot introduce any person, or description of persons, who were not intended to be embraced in this new political family, which the Constitution brought into existence, but were intended to be excluded from it....
It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens of this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several state communities, or who should afterwards, by birthright or otherwise, become members, according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.
It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted....
In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.
It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion....
The legislation of the States ... shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word "citizens," or would have consented to a constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
It is impossible, it would seem, to believe that the great men of the slaveholding States, who took so large a share in framing the Constitution of the United States, and exercised so much influence in procuring its adoption, could have been so forgetful or regardless of their own safety and the safety of those who trusted and confided in them....
What the construction was at that time, we think can hardly admit of doubt. We have the language of the Declaration of Independence and of the Articles of Confederation, in addition to the plain words of the Constitution itself; we have the legislation of the different States, before, about the time, and since the Constitution was adopted; we have the legislation of Congress, from the time of its adoption to a recent period; and we have the constant and uniform action of the Executive Department, all concurring together, and leading to the same result. And if anything in relation to the construction of the Constitution can be regarded as settled, it is that which we now give to the word "citizen" and the word "people."
And upon a full and careful consideration of the subject, the court is of opinion that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts; and, consequently, that the Circuit Court had no jurisdiction of the case, and that the judgment on the plea in abatement is erroneous....
We proceed, therefore, to inquire whether the facts relied on by the plaintiff entitled him to his freedom....
The counsel for the plaintiff has laid much stress upon that article in the Constitution which confers on Congress the power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;" but, in the judgment of the court, that provision has no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the Treaty with Great Britain, and can have no influence upon a territory afterwards acquired from a foreign government. It was a special provision for a known and particular Territory, and to meet a present emergency, and nothing more....
This brings us to examine by what provision of the Constitution the present Federal Government under its delegated and restricted powers, is authorized to acquire territory outside of the original limits of the United States, and what powers it may exercise therein over the person or property of a citizen of the United States, while it remains a territory, and until it shall be admitted as one of the States of the Union.
There is certainly no power given by the Constitution to the Federal Government to establish or maintain Colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of new States. That power is plainly given; and if a new State is admitted it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers and duties of the State, and the citizens of the State, and the Federal Government. But no power is given to acquire a Territory to be held and governed permanently in that character....
We do not mean, however, to question the power of Congress in this respect. The power to expand the territory of the United States by the admission of new States is plainly given; and in the construction of this power by all the departments of the government, it has been held to authorize the acquisition of territory, not fit for admission at the time, but to be admitted as soon as its population and situation would entitle it to admission. It is acquired to become a State, and not to be held as a colony and governed by Congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of Congress, the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a state upon an equal footing with the other States, must rest upon the same discretion.... All we mean to say on this point is, that, as there is no express regulation in the Constitution defining the power which the general government may exercise over the person or property of a citizen in a territory thus acquired, the court must necessarily look to the provisions and principles of the Constitution, and its distribution of powers, for the rules and principles by which its decision must be governed.
Taking this rule to guide us, it may be safely assumed that citizens of the United States who migrate to a territory belonging to the people of the United States, cannot be ruled as mere colonists, dependent upon the will of the general government, and to be governed by any laws it may think proper to impose. The principle upon which our governments rest, and upon which alone they continue to exist, is the union of States, sovereign and independent within their own limits in their internal and domestic concerns, and bound together as one people by a general government, possessing certain enumerated and restricted powers, delegated to it by the people of the several States, and exercising supreme authority within the scope of the powers granted to it, throughout the dominion of the United States. A power, therefore, in the general government to obtain and hold Colonies and dependent Territories, over which they might legislate without restriction, would be inconsistent with its own existence in its present form. Whatever it acquires, it acquires for the benefit of the people of the several States who created it. It is their trustee acting for them, and charged with the duty of promoting the interests of the whole people of the Union in the exercise of the powers specifically granted....
... The powers of the government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a territory of the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the Constitution. The territory being a part of the United States, the government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved....
Now, as we have already said in an earlier part of this opinion, upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citizens of the United States, in every State that might desire it, for twenty years. And the government in express terms is pledged to protect it in all future time, if the slave escapes from his owner. This is done in plain words--too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.
Upon these considerations, it is the opinion of the court that the Act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident….
But there is another point in the case which depends on state power and state law. And it's contended, on that part of the plaintiff, that he is made free by being taken to ... Illinois, independently of his residence in the territory of the United States; and being so made free he was not again reduced to a state of slavery by being brought back to Missouri.
Our notice of this part of the case will be very brief; for the principle on which it depends was decided in this court, upon much consideration, in the case of Strader v. Graham. In that case, the slaves had been taken from Kentucky to Ohio with the consent of the owner, and afterwards brought back to Kentucky. And this court held that their status or condition, as free or slave, depended upon the laws of Kentucky, when they were brought back into that State, and not of Ohio; and that this court had no jurisdiction to revise the judgment of a state court upon its laws. This was the point directly before the court, and the decision that this court had not jurisdiction, turned upon it....
So in this case: as Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character, his status, as free or slave, depended on the laws of Missouri, and not of Illinois....
We are satisfied, upon careful examination of all the cases decided in the State courts of Missouri that it is now firmly settled by the decisions of the highest court in the State, that Scott and his family upon their return were not free, but were, by the laws of Missouri the property of the defendant; and that the Circuit Court of the United States had no jurisdiction, when, by the laws of the State, the plaintiff was a slave not a citizen....
Upon the whole, therefore, it is the judgment of this court, that it appears by the record before us that the plaintiff in error is not a citizen of Missouri, in the sense in which that word is used in the Constitution; and that the Circuit Court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued directing the suit to be dismissed for want of jurisdiction.
Martin v. Hunter's Lessee
14 U.S. 304 (1816)
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Tuesday, March 12, 1816
Wednesday, March 20, 1816
federalism, federal courts, judicial review, tenth amendment
Facts of the Case
Lord Fairfax held land in Virginia. He was a Loyalist and fled to England during the Revolution. He died in 1781 and left the land to his nephew, Denny Martin, who was a British subject. The following year, the Virginia legislature voided the original land grant and transferred the land back to Virginia. Virginia granted a portion of this land to David Hunter. The Jay Treaty seemed to make clear that Lord Fairfax was entitled to the property. The Supreme Court declared that Fairfax was so entitled, but the Virginia courts, where the suit arose, refused to follow the Supreme Court's decision.
Does the appellate power of the Supreme Court extend to the Virginia courts?
The Court rejected the claim that Virginia and the national government were equal sovereigns. Reasoning from the Constitution, Justice Story affirmed the Court's power to override state courts to secure a uniform system of law and to fulfill the mandate of the Supremacy Clause.
Before the Revolutionary War, Lord Fairfax, a British loyalist, inherited a large tract of land in Virginia. When war broke out, Fairfax, too old and frail to make the journey back to England, remained in Virginia, dying there in 1781 and left the property to his nephew, Denny Martin, a British subject residing in England, with the stipulation that Martin change his name to Fairfax.
The inheritance was complicated by a 1781 Virginia law, which specified that no "enemy" could inherit land. Virginia confiscated Fairfax's (also known as Martin's) property and began proceedings to sell it. Because he believed he had rightfully inherited the land, Martin also began to sell off tracts--among the purchasers were Supreme Court Chief Justice John Marshall and his brother--resulting in a suit contesting title.
A lower Virginia state court upheld Martin's claim, but the highest court in Virginia reversed. When the case, Fairfax's Devisee v. Hunter's Lessee (1813), was appealed to the U.S. Supreme Court, only four justices heard it; Chief Justice Marshall recused himself due to the potential conflict of interest. In a 3–1 decision the Court upheld Fairfax's claim, finding that the Virginia statute was unconstitutional because it conflicted with the 1783 Treaty of Paris in which Congress promised to recommend to the states that they restore confiscated property to loyalists.
The U.S. Supreme Court ordered the Virginia Supreme Court to carry out its ruling. In response, the Virginia court, which did not consider itself subordinate to the Supreme Court, held hearings to determine whether it should comply. Eventually, it not only declined to follow the order but also struck down Section 25 of the Judiciary Act of 1789 as unconstitutional. The Virginia Supreme Court's decision was then appealed to the U.S. Supreme Court in the case of Martin v. Hunter's Lessee. Here the justices considered the question of whether Congress could expand their appellate jurisdiction, as it had done in Section 25.
Attorneys for the state of Virginia, including Philip P. Barbour, who later would serve on the U.S. Supreme Court, continued to argue that the Court could not review state court decisions because the states were sovereign entities. In particular, they turned to the Eleventh Amendment. That amendment overturned a 1793 Supreme Court decision, Chisholm v. Georgia, which had upheld the right of citizens of one state to bring suit, in the Supreme Court, against another state. The attorneys argued that the amendment prohibited the Supreme Court from hearing appeals by citizens against their own states--regardless of what Section 25 said and even if the appeal involved a congressional act (as was the case here).
Judgment of the Court/Opinion of the Court: Stevens
Concurring opinions: Breyer, Kennedy
Dissenting opinions: Alito, Scalia, Thomas
Not participating: Roberts
In response to the September 11, 2001, attacks on the United States by the terrorist organization, al Qaeda, Congress adopted a Joint Resolution authorizing the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” This resolution is known as the Authorization for Use of Military Force (AUMF). President George W. Bush, acting pursuant to the AUMF, ordered the U.S. military to invade Afghanistan. During the hostilities there, hundreds of individuals, Salim Ahmed Hamdan among them, were captured and eventually detained at Guantanamo Bay, Cuba.
While the United States was still engaged in active combat in Afghanistan, Bush issued a military order intended to govern the "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism" (which the Supreme Court, in the excerpt below, calls the November 13, 2001 Order). Those subject to the Order included any noncitizen for whom the president determines there is reason to believe (1) is or was a member of al Qaeda or (2) has engaged or participated in terrorist activities aimed at or harmful to the United States. Such persons, known as "enemy combatants," may be tried by a military commission. To administer the program, the secretary of defense named a retired U.S. Army general as “Appointing Authority for Military Commissions.”
In 2004 Hamdan was charged officially with conspiracy to commit offenses triable by a military commission. Specifically, the government alleged that between 1996 and 2001 Hamdan willfully and knowingly joined an enterprise of persons who shared a common criminal purpose of attacking civilians and civilian objects. There was no allegation that Hamdan had any command responsibilities, exercised any leadership, or participated in the planning of any activity. His role in the conspiracy, according to the government, included acting as Osama bin Laden’s personal driver, arranging and providing transportation for al Qaeda members, and receiving weapons training at al Qaeda-sponsored camps.
After the formal charge was filed, proceedings before the military commission began. Seeking to stop them, Hamdan’s court-appointed military attorney filed for a writ of habeas corpus in a federal district court, where he argued that the commission lacked authority to try Hamdan because (1) conspiracy is not an offense that violates the law of war; and (2) the procedures adopted to try him were inconsistent with the basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.
The district court granted Hamdan's petition for habeas corpus and stayed the commission's proceedings, but the U.S. Court of Appeals for the District of Columbia reversed. The Supreme Court granted certiorari.
This complex case confronted questions such as: (1) did the Supreme Court have jurisdiction to hear appeals from Guantanamo detainees? (2) did the president act legally in establishing the military commissions? (3) were the procedures followed by the military commissions in violation of either the Uniform Code of Military Justice (UCMJ) or the Geneva Conventions? and (4) is conspiracy an offense legally triable by a military commission.