84 | Towards the Closure of Guantanamo petition was initially granted by the district court but then reversed by the D.C. Circuit Court. On June 29, 2006, in Hamdan v. Rumsfeld, the U.S. Supreme Court reversed the appeals court’s decision and ruled that the structure and procedures of the military commissions violated the Uniform Code of Military Justice (UCMJ) and Common Article 3 of the Geneva Conventions, which it found to be incorporated into the UCMJ. Thus, the Supreme Court invalidated the presidentially-created military commissions on separation of powers grounds. The decision states that “the procedures governing [military commissions] trials historically have been the same as those governing courts-martial” and that, in this case, nothing “demonstrates that it would be impractical to apply courts-martial rules.” Accordingly, the President had no authority to set up these military commissions without the authorization of Congress. 192. The Supreme Court asserts that the phrase “regularly constituted court” defined in Common Article 3 means an “ordinary military cour[t]” that is “established and organized in accordance with the laws and procedures already in force in a country.” According to the Supreme Court, these are the courts-martial established by congressional statute. Therefore, at a minimum, a military commission can be “regularly constituted” only if some practical need explains deviations from courtsmartial practice. The Court concluded that no such need had been demonstrated in the Hamdan case. 226 The Supreme Court found, in this regard that the procedures adopted failed to afford Hamdan “the barest of the trial protections recognized in customary international law” such as the principle that an accused must be present for his trial and must be privy to the evidence against him. 227 193. In response to Hamdan v. Rumsfeld, on October 17, 2006, Congress passed the Military Commissions Act of 2006 (2006 MCA), establishing the procedures governing the use of military commissions to try alien unlawful enemy combatants for offenses committed on or after September 11, 2001, made punishable by the MCA or the law of war. Section 7 deprived courts of jurisdiction to hear or consider habeas corpus petitions pending or filed after the enactment of the MCA by aliens determined to be enemy combatants, or awaiting determination regarding enemy combatant status, relating to the prosecution, trial or judgment of a military commission. Given this restriction, all pending habeas corpus petitions were stayed. 194. As indicated above, in Boumediene v. Bush, the U.S. Supreme Court ruled that Guantanamo detainees had the right to file habeas corpus petitions before federal courts and that Section 2241(e)(1) of the MCA of 2006 was, therefore, an unconstitutional suspension of the writ. To address the concern raised in Boumediene, on October 8, 2009, as part of the National Defense Authorization Act (NDAA) for fiscal year 2010, Congress passed the Military Commissions Act of 2009 (2009 MCA), replacing the 2006 MCA to provide for federal judicial review on a limited number of issues while still proscribing review of general conditions of confinement. 226 227 Hamdan v. Rumsfeld, 548 U.S. (2006) at 69-70. Hamdan v. Rumsfeld, 548 U.S. (2006) at 70-72. Organization of American States | OAS