Hamdan

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Date and Time: Oct 15, 2014
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Hamdan v. Rumsfeld, 548 U.S. 557

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Hamdan v. Rumsfeld
Supreme Court of the United States
March 28, 2006, Argued ; June 29, 2006, Decided
No. 05-184
Reporter
548 U.S. 557; 126 S. Ct. 2749; 165 L. Ed. 2d 723; 2006 U.S. LEXIS 5185; 19 Fla. L. Weekly
Fed. S 452
SALIM AHMED HAMDAN, Petitioner v. cases, provisions, plurality, offenses,

DONALD H. RUMSFELD, SECRETARY conspiracy, enemy, violation of law,
pending case, proceedings, authorization,
OF DEFENSE, et al.
convened, court-martial, commissions,
Notice: The LEXIS pagination of this civilian, regularly, Appointing, triable,
document is subject to change pending requires, sentence, provides, laws of war
release of the final published version.
Case Summary
Subsequent History: Writ of habeas
corpus denied In re Hamdan, 548 U.S. Procedural Posture
924, 126 S. Ct. 2981, 165 L. Ed. 2d 990, Petitioner, a Yemeni national in custody at
2006 U.S. LEXIS 5239 (U.S., 2006)
an American prison in Guantanamo Bay,
On remand at Hamdan v. Rumsfeld, 2006 Cuba, filed petitions for writs of habeas
U.S. App. LEXIS 20943 (D.C. Cir., Aug. corpus and mandamus to challenge the
11, 2006)
Executive Branchs intended means of
Prior History: ON WRIT OF prosecuting a charge of conspiracy to
CERTIORARI TO THE UNITED STATES commit offenses triable by military
COURT OF APPEALS FOR THE commission. The United Court of Appeals
for the District of Columbia Circuit
DISTRICT OF COLUMBIA CIRCUIT.
reversed a decision granting a writ of
Hamdan v. Rumsfeld, 367 U.S. App. D.C.
265, 415 F.3d 33, 2005 U.S. App. LEXIS habeas corpus. Certiorari was granted.
14315 (2005)
Overview
The governments motion to dismiss was
Disposition: Reversed and remanded.
denied because Pub. L. No. 109-148,
1005(e)(1), 119 Stat. 2739, 2740 (2005),
Core Terms
did not repeal federal jurisdiction over
military commission, military, military pending habeas actions. Abstention was
commissions, Conventions, procedures, not warranted as petitioner was not an
tribunals, law of war, courts-martial, courts, Armed Forces member and the tribunal
Angelo Tannuzzo
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convened to try him was not part of the

integrated system of military courts
established by Congress. Review of the
commissions procedures in advance of a
final decision was appropriate as petitioner
had no automatic right to review of the
commissions decision before a federal
court under the Detainee Treatment Act,
Pub. L. No. 109-148, 119 Stat. 2739 (2005).
The fact that petitioner already had been
excluded from his own trial provided a
basis to presume that the procedures
employed would violate the law. On the
merits, the military commission convened
to try petitioner lacked power to proceed
as its structure and procedures violated the
Uniform Code of Military Justice. The
Presidents practicability determination was
insufficient to justify variances from the
procedures governing courts-martial. The
procedures also violated the Geneva
Conventions as they did not meet common
article 3s requirements.
Outcome
The judgment was reversed and the case
was remanded for further proceedings.
LexisNexis Headnotes
Military & Veterans Law > Military
Justice > Judicial Review > General
Overview
HN1 See Pub. L. No. 109-148, 1005(e),

119 Stat. 2739, 2740 (2005).
Overview
HN2 Pub. L. No. 109-148, 1005(e)(2),

119 Stat. 2739, 2740 (2005), vests in the
United States Court of Appeals for the
District of Columbia Circuit the exclusive
jurisdiction to determine the validity of
any final decision of a combatant status
review tribunal that an alien is properly
designated as an enemy combatant.
Paragraph (2) also delimits the scope of
that review.
Overview
HN3 Pub. L. No. 109-148, 1005(e)(3)(A),

119 Stat. 2739, 2740 (2005), vests in the
United States Court of Appeals for the
District of Columbia Circuit exclusive
any final decision rendered pursuant to
Military Commission Order No. 1, dated
August 31, 2005 (or any successor military
order). Review is as of right for any alien
sentenced to death or a term of
imprisonment of 10 years or more, but is at
the Court of Appeals discretion in all
other cases. The scope of review is limited
to the following inquiries: (1) whether the
final decision of the military commission
was consistent with the standards and
procedures specified in the military order
referred to in Pub. L. No. 109-148,
1005(e)(3)(A), 119 Stat. 2739, 2740 (2005),
and (2) at the extent the United States
Constitution and laws of the United States
are applicable, whether the use of such
standards and procedures to reach the final
decision is consistent with the United States
Constitution and laws of the United States.
Angelo Tannuzzo
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Pub. L. No. 109-148, 1005(e)(3)(D), 119 cases pending at the time of their
enactment. Normal rules of construction,
Stat. 2739, 2740 (2005).
including a contextual reading of the
statutory language, may dictate otherwise.
Justice > Military Commissions & Tribunals
A familiar principle of statutory
HN4 See Pub. L. No. 109-148, 1005(h), construction is that a negative inference
may be drawn from the exclusion of
119 Stat. 2739, 2740 (2005).
language from one statutory provision that
Governments > Legislation > Effect & is included in other provisions of the same
Operation > Retrospective Operation
statute.
HN5 If a statutory provision would operate
Governments > Courts > Judicial Comity
retroactively as applied to cases pending at
the time the provision was enacted, then
the courts traditional presumption teaches
Overview
that it does not govern absent clear
congressional intent favoring such a result. HN7 As a matter of comity, federal courts
However, unlike other intervening changes should normally abstain from intervening
in the law, a jurisdiction-conferring or in pending court-martial proceedings
jurisdiction-stripping statute usually takes against members of the Armed Forces.
away no substantive right but simply
Governments > Courts > Judicial Comity
changes the tribunal that is to hear the
case. If that is truly all the statute does, no
retroactivity problem arises because the
Overview
change in the law does not impair rights a
party possessed when he acted, increase a HN8 Judicial precedent identifies two
partys liability for past conduct, or impose considerations of comity that together favor
new duties with respect to transactions abstention pending completion of ongoing
already completed. And if a new rule has court-martial proceedings against service
no retroactive effect, the presumption personnel. First, military discipline and,
against retroactivity will not prevent its therefore, the efficient operation of the
application to a case that was already Armed Forces are best served if the military
pending when the new rule was enacted. justice system acts without regular
Governments > Legislation > Effect & interference from civilian courts. Second,
federal courts should respect the balance
Operation > Retrospective Operation
that Congress struck between military

preparedness and fairness to individual
HN6 Not all jurisdiction-stripping service members when it created an
provisions, or even all such provisions that integrated system of military courts and
truly lack retroactive effect, must apply to review procedures, a critical element of
Governments > Legislation > Interpretation
Angelo Tannuzzo
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which is the United States Court of Military

Appeals , consisting of civilian judges
completely removed from all military
influence or persuasion. Just as abstention
in the face of ongoing state criminal
proceedings is justified by the expectation
that state courts will enforce federal rights,
so abstention in the face of ongoing
court-martial proceedings is justified by
the expectation that the military court
system established by Congress, with its
substantial procedural protections and
provision for appellate review by
independent civilian judges, will vindicate
servicemens constitutional rights.
II, 2, cl. 1, but vests in Congress the

powers to declare war and make rules
concerning captures on land and water,
U.S. Const. art. I, 8, cl. 11, to raise and
support armies, U.S. Const. art. I, 8, cl.
12, to define and punish offences against
the law of nations, U.S. Const. art. I, 8,
cl. 10, and to make rules for the government
and regulation of the land and naval forces,
U.S. Const. art. I, 8, cl. 14.
Constitutional Law > Congressional Duties
& Powers > War Powers Clause
Constitutional Law > The Presidency >
Commander in Chief
Constitutional Law > Congressional Duties HN11 The power to make the necessary
laws is in Congress; the power to execute
in the President. Both powers imply many
Constitutional Law > The Judiciary >

subordinate and auxiliary powers. Each
Congressional Limits
includes all authorities essential to its due
Military & Veterans Law > Military exercise. But neither can the President, in
Justice > Military Commissions & Tribunals war more than in peace, intrude upon the
proper authority of Congress, nor Congress

upon the proper authority of the President.
Congress cannot direct the conduct of
campaigns, nor can the President, or any
commander under him, without the
sanction of Congress, institute tribunals for
the trial and punishment of offences, either
of soldiers or civilians, unless in cases of a
controlling necessity, which justifies what
it compels, or at least insures acts of
Constitutional Law > Congressional Duties indemnity from the justice of the
legislature.
HN9 Exigency alone will not justify the

establishment and use of penal tribunals
not contemplated by U.S. Const. art. I, 8
and art. III, 1, unless some other part of
that document authorizes a response to the
felt need. And that authority, if it exists,
can derive only from the powers granted
jointly to the President and Congress in
time of war.
Constitutional Law > The Presidency >

Commander in Chief

Justice > Jurisdiction > Exclusive &
Nonexclusive Jurisdiction
HN10 The United States Constitution

makes the President the commander in HN12 See Unif. Code Mil. Justice art. 21,
chief of the Armed Forces, U.S. Const. art. 10 U.S.C.S. 821.
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Military & Veterans Law > Military Detainee Treatment Act, Pub. L. No.
Justice > Military Commissions & Tribunals 109-148, 119 Stat. 2739 (2005), at most
HN13 Judicial precedent recognizes that

in enacting Unif. Code Mil. Justice art. 21,
10 U.S.C.S. 821, Congress has simply
preserved what power, under the United
States Constitution and the common law of
war, the President had before 1916 to
convene military commissions, with the
express condition that the President and
those under his command comply with the
law of war.
HN14 Neither the Authorization for Use of

Military Force (AUMF), 115 Stat. 224,
note foll. 50 U.S.C.S. 1541, nor the
Detainee Treatment Act, Pub. L. No.
109-148, 119 Stat. 2739 (2005) expands
the Presidents authority to convene
military commissions. While the court
assumes that the AUMF activated the
Presidents war powers and that those
powers include the authority to convene
military commissions in appropriate
circumstances, there is nothing in the text
or legislative history of the AUMF even
hinting that Congress intended to expand
or alter the authorization set forth in Unif.
Code Mil. Justice art. 21, 10 U.S.C.S.
821.
acknowledge a general Presidential

authority to convene military commissions
in circumstances where justified under the
United States Constitution and laws,
including the law of war.
HN16 The Uniform Code of Military

Justice (UCMJ) conditions the Presidents
use of military commissions on compliance
not only with the American common law
of war, but also with the rest of the UCMJ
itself, insofar as applicable, and with the
rules and precepts of the law of nations,
including, inter alia, the four Geneva
Conventions signed in 1949.
Justice > General Overview
HN17 See Unif. Code Mil. Justice art.

2(12), 10 U.S.C.S. 802(12).
HN18 The uniformity principle is not an

inflexible one; it does not preclude all
departures from the procedures dictated
for use by courts-martial. But any departure
must be tailored to the exigency that
Military & Veterans Law > Military necessitates it.
HN15 Together, the Uniform Code of

Military Justice, the Authorization for Use
of Military Force (AUMF), 115 Stat. 224, HN19 See Unif. Code Mil. Justice art. 36,
note following 50 U.S.C.S. 1541, and the 10 U.S.C.S. 836.
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Military & Veterans Law > Military to

military
impracticable.
HN20 Unif. Code Mil. Justice art. 36, 10

U.S.C.S. 836, places two restrictions on
the Presidents power to promulgate rules
of procedure for courts-martial and military
commissions alike. First, no procedural
rule he adopts may be contrary to or
inconsistent with the Uniform Code of
Military Justice, however practical it may
seem. Second, the rules adopted must be
uniform insofar as practicable. That is, the
rules applied to military commissions must
be the same as those applied to
courts-martial unless such uniformity
proves impracticable.
commissions
unless

Military & Veterans Law > Warfare
HN22 Regardless of the nature of the

rights conferred by the Geneva Convention,
they are part of the law of war. And
compliance with the law of war is the
condition upon which the authority set
forth in Unif. Code Mil. Justice art. 21, 10
U.S.C.S. 821, is granted.
HN23 Article 3, often referred to as

Common Article 3 because, like Article 2,
it appears in all four Geneva Conventions,
provides that in a conflict not of an
international character occurring in the
territory of one of the high contracting
parties, each party to the conflict shall be
bound to apply, as a minimum, certain
provisions protecting persons taking no
active part in the hostilities, including
members of armed forces who have laid
down their arms and those placed hors de
combat by detention. One such provision
prohibits the passing of sentences and the
carrying out of executions without previous
judgment pronounced by a regularly
constituted court affording all the judicial
guarantees which are recognized as
indispensable by civilized peoples.
HN21 Unif. Code Mil. Justice art. 36(b),

10 U.S.C.S. 836(b), was added after
World War II, and requires a different
showing of impracticability from the one
required by Unif. Code Mil. Justice art.
36(a), 10 U.S.C.S. 836(a). Subsection (a)
requires that the rules the President
promulgates for courts-martial, provost
courts, and military commissions alike
conform to those that govern procedures in
U.S. Const. art. III courts, so far as he
considers practicable. Unif. Code Mil.
Justice art. 36(b), 10 U.S.C.S. 836(b), by
contrast, demands that the rules applied in
courts-martial, provost courts, and military
commissions, whether or not they conform
with the Federal Rules of Evidence, be
uniform insofar as practicable. Under the HN24 The term conflict not of an
latter provision, then, the rules set forth in international character is used in common
the Manual for Courts-Martial must apply article 3 of the Geneva Convention in
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contradistinction to a conflict between

nations. So much is demonstrated by the
fundamental logic of the Conventions
provisions on its application. Common
article 2 provides that the present
Convention shall apply to all cases of
declared war or of any other armed conflict
which may arise between two or more of
the high contracting parties. High
contracting parties (signatories) also must
abide by all terms of the Conventions
vis-a-vis one another even if one party to
the conflict is a nonsignatory power, and
must so abide vis-a-vis the nonsignatory if
the latter accepts and applies those terms.
Common article 3, by contrast, affords
some minimal protection, falling short of
full protection under the Conventions, to
individuals associated with neither a
signatory nor even a nonsignatory power
who are involved in a conflict in the
territory of a signatory. The latter kind of
conflict is distinguishable from the conflict
described in common article 2 chiefly
because it does not involve a clash between
nations (whether signatories or not). In
context, then, the phrase not of an
international character bears its literal
meaning.
scope of the article must be as wide as

possible.
HN26 Common article 3 of the Geneva

Convention requires that a captured
individual be tried by a regularly
indispensable by civilized peoples. While
the term regularly constituted court is not
specifically defined in either common
article 3 or its accompanying commentary,
other sources disclose its core meaning.
The commentary accompanying a provision
of the Fourth Geneva Convention, for
example, defines regularly constituted
tribunals to include ordinary military courts
and definitely exclude all special tribunals.
One of the Red Cross own treatises
defines regularly constituted court as used
in common article 3 to mean established
and organized in accordance with the laws
and procedures already in force in a
country.
HN27 At a minimum, a military

commission can be regularly constituted
by the standards of our military justice
HN25 Although the official commentaries system only if some practical need explains
accompanying common article 3 of the deviations from court-martial practice.
Geneva Convention indicate that an
important purpose of the provision was to
furnish minimal protection to rebels HN28 Common article 3 of the Geneva
involved in one kind of conflict not of an Convention obviously tolerates a great
international character, i.e., a civil war, the degree of flexibility in trying individuals
commentaries also make clear that the captured during armed conflict; its
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requirements are general ones, crafted to

accommodate a wide variety of legal
systems. But requirements they are
nonetheless.
Lawyers Edition Display
Decision
Structure and procedures of
military commission convened to try
particular purported enemy combatant held
to violate (1) Uniform Code of Military
Justice (10 U.S.C.S. 801 et seq.), and
(2) Geneva Conventions (including Third
Geneva Convention, concerning prisoners
of war, 6 U. S. T. 3316).
[***723]
Summary
Pursuant to Congress joint resolution (note
following 50 U.S.C.S. 1541) authorizing
the President to use all necessary and
appropriate force against those nations,
organizations, or persons determined to
have planned, authorized, committed or
aided the September 11, 2001, al Qaeda
terrorist attacks, United States armed forces
invaded Afghanistan, where among the
purported foreign combatants that the
armed forces captured in 2001, was a
Yemeni national who, in 2002, was
transported to a United States military
prison in Guantanamo Bay, Cuba, for
detention.
More than a year later, the President
deemed the detainee eligible for trial by
military commission for then-unspecified
crimes. Another year passed, before the
detainee was charged with conspiracy to
commit offenses triable by military

commission. In a petition for a writ of
habeas corpus and a petition for a writ of
mandamus, the detainee contended that the
military commission lacked authority to
try him because (1) neither congressional
act nor the common law of war supported
trial by the commission for conspiracy, an
offense that the detainee asserted was not a
violation of the law of war; and (2) the
procedures adopted to try the detainee
violated basic tenets of military and
international law, including the principle
that a defendant was required to be
permitted to see and hear the evidence
against the defendant.
The United States District Court for the
District of Columbia granted the detainees
habeas corpus petition (344 F. Supp. 2d
152). However, the United States Court of
Appeals for the District of Columbia
[***724]
Circuit (1) declined the
governments invitation to abstain from
considering the detainees challenge; (2)
held that the accused was not entitled to
relief under (a) the Uniform Code of
Military Justice (UCMJ) (10 U.S.C.S.
801 et seq.), or (b) the four Geneva
Conventions (including the Third Geneva
Convention, concerning prisoners of war,
Aug. 12, 1949, [1955] 6 U. S. T. 3316);
and (3) reversed the District Courts
judgment (367 U.S. App. D.C. 265, 415 F.
3d 33).
On certiorari, the United States Supreme
Court reversed and remanded. In the
portion of the opinion of Stevens, J., that
was joined by Kennedy, Souter, Ginsburg,
Angelo Tannuzzo
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and Breyer, JJ., and which constituted the

opinion of the court, it was held that:
(1) The writ of certiorari in the instant case
would not be dismissed on the Federal
Governments asserted ground of the
Detainee Treatment Act of 2005 (DTA)
(119 Stat. 2739), where (a) a DTA provision
generally deprived any court, justice, or
judge of jurisdiction to consider a habeas
corpus application filed by or on behalf of
an alien detained at Guantanamo Bay; but
(b) the DTA was silent about whether this
provision applied to claims pending on the
date of enactment; and (c) ordinary
principles of statutory construction sufficed
to rebut the governments theory as to the
instant case, which was pending when the
DTA was enacted.
(2) The military commission convened to
try the detainee lacked power to proceed,
as the commissions structure and
procedures violated (a) the UCMJ, for the
commissions procedures failed to comply
with UCMJ Article 36(b) (10 U.S.C.S.
836(b)), which required that the procedural
rules that the President promulgated for
military commissions and courts-martial
be uniform insofar as practicable; and
(b) the Geneva Conventions, for (i) the
conventions Common Article 3 (so called
because it appeared in all four conventions),
for which the Third Geneva Convention
cite was 6 U. S. T. at 3320, required that
the detainee be tried by a regularly
indispensable by civilized peoples, and
(ii) the commissions procedures did not
meet this standard.
Also, Stevens, J., joined by Souter,

Ginsburg, and Breyer, JJ., expressed the
view that the military commission in
question did not comply with the common
law governing military commissions.
Breyer, J., joined by Kennedy, Souter, and
Ginsburg, JJ., concurring, expressed the
view that (1) Congress had denied the
President the legislative authority to create
military commissions of the kind at issue
in the instant case; but (2) nothing
prevented the President from returning to
Congress to seek the authority that the
President believed to be necessary.
Kennedy, J., joined in pertinent part by
Souter, Ginsburg, and Breyer, JJ.,
concurring in part, expressed the view that
(1) military commissions carried the risk
that offenses would be defined, prosecuted,
and adjudicated by executive officials
without independent review; (2) such
concentration of power put personal liberty
in peril of arbitrary action that the Federal
Constitutions three-part system was
designed to avoid; and (3) the accuseds
circumstances presented no exigency
requiring special speed or precluding
careful consideration of evidence, as (a)
for roughly 4 years, the accused had been
detained by [***725] the United States,
and (b) regardless of the outcome of the
criminal proceedings at issue, the
government claimed authority to continue
to detain him on the basis of his status as
an enemy combatant.
Scalia, J., joined by Thomas and Alito, JJ.,
dissenting, expressed the view that (1) the
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Supreme Courts DTA conclusion in the

instant case--that every court, justice, or
judge before whom a habeas corpus
application by a Guantanamo Bay detainee
was pending on December 30, 2005 (the
date of the DTAs enactment) had
jurisdiction to hear, consider, and render
judgment on the application--was (a)
contrary to the DTAs plain directive, and
(b) patently erroneous; and (2) even if this
were not so, the jurisdiction supposedly
retained, in an exercise of sound equitable
discretion, ought not to be exercised.
(b) that was appointed, set up, and

established in compliance with domestic
law, and (c) that respected universally
recognized fundamental rights--were
satisfied in the instant case.
Roberts, Ch. J., did not participate.
Headnotes
WAR 31 > -- military commission -power to try foreign combatant -- Uniform
Code of Military Justice > Headnote:
LEdHN[1A]
[1A]LEdHN[1B]
Thomas, J., joined by Scalia, J., and joined [1B]LEdHN[1C] [1C]LEdHN[1D] [1D]
in pertinent part by Alito, J., dissenting, A military commission-- purportedly
expressed the view that (1) the Supreme authorized by the President under a
Courts opinion in the instant case openly comprehensive military order that (1) was
flouted the courts well-established duty to intended to govern the Detention,
respect the executive branchs judgment in Treatment, and Trial of Certain
matters of military operations and foreign Non-Citizens in the War Against
affairs; and (2) the Supreme Courts evident Terrorism, and (2) provided that any such
belief that it was qualified to pass on the individual, when tried, was to be tried by
purported military necessity of the military commission--convened to try a
Commander in Chiefs decision to employ particular detainee, who purportedly was
a particular form of force against the an enemy combatant, lacked power to
nations enemies was antithetical to the proceed, regardless of whether the
nations constitutional structure.
government had charged the detainee with
an offense against the law of war
Alito, J., joined by Scalia and Thomas, JJ.,
cognizable by military commission,
dissenting, expressed the view that (1)
because the structure and procedures of the
under the Geneva Conventions Common
commission in question violated the
Article 3, a regularly constituted court
Uniform Code of Military Justice (UCMJ)
was a court that had been appointed, set
(10 U.S.C.S. 801 et seq.), as:
up, or established in accordance with the
domestic law of the appointing country; (1) The rules governing the commission
(2) the Supreme Courts contrasting [***726] in question permitted (a) certain
interpretation in the instant case was not government officials to exclude from the
based on sound grounds; and (3) all three accused and the accuseds civilian counsel
elements of Common Article 3--(a) a court, any part of the proceeding that the officials
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decided, on the basis of any of several

grounds, to close; (b) admission of any
evidence-- including testimonial hearsay
and
evidence
obtained
through
coercion--that, in the opinion of the
commissions presiding officer, would have
probative value to a reasonable person;
and (c) conviction on a two-thirds vote.
(2) Nothing in the record demonstrated
that it would be impracticable to apply
court-martial rules in the instant case.
Non-Citizens in the War Against

Terrorism, and (2) provided that any such
individual, when tried, was to be tried by
military commission--convened to try a
particular detainee, who purportedly was
an enemy combatant, lacked power to
proceed, regardless of whether the
government had charged the detainee with
an offense against the law of war
cognizable by military commission,
because the structure and procedures of the
commission in question violated the four
Geneva Conventions (including the Third
Geneva Convention, concerning prisoners
of war, Aug. 12, 1949, [1955] 6 U. S. T.
3316), as:
(3) The UCMJ conditioned the Presidents

use of military commissions on compliance
not only with the American common law
of war, but also with the rest of the UCMJ,
insofar as applicable.
(1) The rules governing the commission in
(4) The commissions procedures failed to question permitted (a) certain government
comply with UCMJ Article 36(b) (10 officials to exclude from the accused and
U.S.C.S. 836(b)), which required that the the accuseds civilian counsel any part of
procedural rules that the President the proceeding that the officials decided,
promulgated for military commissions and on the basis of any of several grounds, to
courts-martial be uniform insofar as close; (b) admission of any evidence-including testimonial hearsay and evidence
practicable.
obtained through coercion--that, in the
(Stevens, J., joined by Kennedy, Souter, opinion of the commissions presiding
Ginsburg, and Breyer, JJ.)
officer, would have probative value to a
reasonable person; and (c) conviction on a
TREATIES 20 > -- military commission -two-thirds vote.
power to try foreign combatant -- Geneva
Conventions > Headnote:
(2) The conventions Common Article 3
LEdHN[2A]
[2A]LEdHN[2B] (so called because it appeared in all four
conventions), for which the Third Geneva
[2B]LEdHN[2C] [2C]
Convention cite was 6 U. S. T. at 3320,
A military commission-- purportedly required that the detainee be tried by a
authorized by the President under a regularly constituted court affording all
comprehensive military order that (1) was the judicial guarantees which are
intended to govern the Detention, recognized as indispensable by civilized
Treatment, and Trial of Certain peoples.
Angelo Tannuzzo
Page 12 of 136
548 U.S. 557, *557; 126 S. Ct. 2749, **2749; 165 L. Ed. 2d 723, ***726
(3) The commissions procedures did not Circuit, exclusive jurisdiction to

determine the validity of any final decision
meet this standard.
(Stevens, J., joined by Kennedy, Souter, of a civil tribunal that an alien had properly
been designated as an enemy combatant.
APPEAL 1216 > -- dismissal -- asserted (c) In 1005(e)(3), vested, in the Court of
lack of jurisdiction -- Detainee Treatment Appeals for the District of Columbia
Act -- pending case > Headnote:
Circuit, exclusive jurisdiction to
determine the validity of any final decision

LEdHN[3A]
[3A]LEdHN[3B]
of military commission that an alien had
[3B]LEdHN[3C]
[3C]LEdHN[3D]
properly been designated as an enemy
[3D]LEdHN[3E] [3E]
combatant.
The United States Supreme Court refused
to dismiss a writ of certiorari to review a (d) In 1005(h)(1), applied 1005(e)(2)
United States [***727] Court of Appeals and (3) to cases pending when the DTA
for the District of Columbia Circuit was enacted.
decision to the effect that a military
(2) The DTA was silent about whether
commission convened to try a particular
1005(e)(1) applied to claims pending on
Guantanamo
Bay
detainee--who
the date of enactment.
purportedly was an enemy combatant and
who had sought federal habeas corpus (3) Ordinary principles of statutory
relief--did not violate the Uniform Code of construction sufficed to rebut the
Military Justice (UCMJ) (10 U.S.C.S. governments theory as to the instant case,
801 et seq.) or the Geneva Conventions which was pending when the DTA was
(including the Third Geneva Convention, enacted, for Congress omission of
concerning prisoners of war, Aug. 12, subsection (1) from the non-retroactivity
1949, [1955] 6 U. S. T. 3316), where the provision that specified subsections (2)
Federal Government grounded its dismissal and (3) weighed heavily against the
motion on the recently enacted federal governments interpretation.
Detainee Treatment Act of 2005 (DTA)
(4) The Court of Appeals jurisdiction was
(119 Stat. 2739), as:
not exclusive in the sense that it barred
(1) The DTAs 1005:
the Supreme Courts review on appeal
(a) In 1005(e)(1), generally deprived any
from a decision under the DTA.
court, justice, or judge of jurisdiction to
consider a habeas corpus application filed (5) The governments suggestion that
by or on behalf of an alien detained at Congress could have had no good reason
Guantanamo Bay.
for preserving habeas corpus jurisdiction
(b) In 1005(e)(2), vested, in the Court of over cases brought by detainees prior to
Appeals for the District of Columbia the DTAs enactment was (a) belied by the
Angelo Tannuzzo
Page 13 of 136
548 U.S. 557, *557; 126 S. Ct. 2749, **2749; 165 L. Ed. 2d 723, ***727
DTAs legislative history; and (b) otherwise LEdHN[6] [6]

without merit.
A negative inference may be drawn from
(Stevens, J., joined by Kennedy, Souter, the exclusion of language from one
statutory provision that is included in other
STATUTES 209 > -- presumption against provisions of the same statute. (Stevens, J.,
joined by Kennedy, Souter, Ginsburg, and
retroactivity > Headnote:
Breyer, JJ.)
LEdHN[4] [4]
If a statutory provision would operate
retroactively as applied to cases pending at
the time the provision was enacted, then
the United States Supreme Courts
traditional presumption teaches that the
provision does not govern absent clear
congressional intent favoring such a result.
(Stevens, J., joined by Kennedy, Souter,
STATUTES 211 > -- jurisdiction-stripping
provisions -- retroactivity -- pending cases
> Headnote:
COURTS 757 > COURTS 765 > -civilian -- review of ongoing military
proceedings
-abstention
-comity > Headnote:
LEdHN[7A] [7A]LEdHN[7B] [7B]

On certiorari to review a United States
Court of Appeals for the District of
Columbia Circuit decision to the effect that
a military commission convened to try a
particular Guantanamo Bay detainee, who
purportedly was an enemy combatant, did
not violate the Uniform Code of Military
Justice (UCMJ) (10 U.S.C.S. 801 et
seq.) or the Geneva Conventions (including
the Third Geneva Convention, concerning
prisoners of war, Aug. 12, 1949, [1955] 6
U. S. T. 3316), the United States Supreme
Court rejected the Federal Governments
argument that, even if the court had
statutory jurisdiction, the court ought to
apply the judge-made rule that civilian
courts should await the final outcome of
on-going military proceedings before
entertaining an attack on those
proceedings. Abstention was not justified,
as:

The fact that if a new rule has no retroactive
effect, then the presumption against
retroactivity will not prevent its application
to a case that was pending when the rule
was enacted, does not mean that all
jurisdiction-stripping provisions--or even
all such provisions that truly lack
retroactive effect--must apply to cases
pending at the time of their [***728]
enactment. Normal rules of construction,
including a contextual reading of the
statutory language, may dictate otherwise.
(1) Neither of the two comity
considerations underlying the Supreme
STATUTES 176 > -- excluded language Courts decision to abstain in a prior case
applied to the circumstances in the instant
> Headnote:
Angelo Tannuzzo
Page 14 of 136
548 U.S. 557, *557; 126 S. Ct. 2749, **2749; 165 L. Ed. 2d 723, ***728
case, for (a) the detainee was not a member

of Americas armed forces, so concerns
about military discipline did not apply; and
(b) the tribunal convened to try the detainee
was not part of the integrated system of
military courts, complete with independent
review panels, that Congress had
established.
(2) Another prior decision of the court
provided a compelling historical precedent
for the power of civilian courts to entertain
challenges that sought to interrupt the
processes of military commissions.
(3) The government had identified no other
important countervailing interest that would
permit federal courts to depart from their
general duty to exercise the jurisdiction
that was conferred upon them by Congress.
COURTS 757 > -- civilian -- review of
ongoing military proceedings -- abstention
> Headnote:
COURTS-MARTIAL 11 > -- civilian

courts -- review of ongoing military
proceedings -- abstention > Headnote:
LEdHN[9] [9]
Two considerations of comity together
favor the United States Supreme Courts
abstention pending completion of ongoing
court-martial
proceedings
against
military-service [***729] personnel: (1)
military discipline and, therefore, the
efficient operation of the armed forces are
best served if the military justice system
acts without regular interference from
civilian courts; and (2) federal courts should
respect the balance that Congress struck
between military preparedness and fairness
to individual service members when
Congress created an integrated system of
military courts and review procedures, a
critical element of which is the Court of
Military Appeals, consisting of civilian
judges completely removed from all
military influence or persuasion. Just as
abstention in the face of ongoing state
criminal proceedings is justified by
expectation that state courts will enforce
federal rights, so abstention in the face of
ongoing court-martial proceedings is
justified by expectation that the military
court system established by Congress--with
its substantial procedural protections and
provision for appellate review by
independent civilian judges--will vindicate
military service members constitutional
rights (Stevens, J., joined by Kennedy,
Souter, Ginsburg, and Breyer, JJ.)
Abstention by the United States Supreme

Court is not appropriate in cases in which
(1) individuals raise substantial arguments
denying the right of the military to try
them, and (2) the legal challenge turns on
the status of the persons as to whom the
military asserted its power. The court does
not abstain when there is a substantial
question whether a military tribunal has
personal jurisdiction over the defendant.
WAR 30 > -- penal tribunals > Headnote:
LEdHN[10] [10]
Angelo Tannuzzo
Page 15 of 136
548 U.S. 557, *557; 126 S. Ct. 2749, **2749; 165 L. Ed. 2d 723, ***729
Exigency of war will not alone justify the

establishment and use of penal tribunals
not contemplated by the Federal
Constitutions Article I, 8 and Article III,
1 unless some other part of the
Constitution authorizes a response to the
felt need. That authority, if it exists, can
derive only from the powers granted jointly
to the President and Congress in time of
war. (Stevens, J., joined by Kennedy,
WAR 30 > -- military commissions -Presidents powers > Headnote:

Regardless of whether the President has
independent power, absent congressional
authorization, to convene military
commissions, the President may not
disregard limitations that Congress has, in
proper exercise of its own war powers,
placed on the Presidents powers. (Stevens,
J., joined by Kennedy, Souter, Ginsburg,
and Breyer, JJ.)
WAR 30 > -- military commissions -Congress -- expansion of Presidents
authority > Headnote:
LEdHN[12] [12]
Neither Congress 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 September 11, 2001, al Qaeda
terrorist attacks (AUMF) (note following
50 U.S.C.S. 1541) nor the Detainee
Treatment Act of 2005 (DTA) (119 Stat.
2739) expanded the Presidents authority

to convene military commissions, as (1)
there was nothing in the AUMFs text or
legislative history even hinting that
Congress intended to expand or alter the
authorization set forth in Article 21 of the
Uniform Code of Military Justice (UCMJ)
(10 U.S.C.S. 821); (2) likewise, the DTA
could not be read to authorize the
commission in question in the instant
case--convened to try a purported enemy
combatant who was being detained at the
United States military facility at
Guantanamo Bay, Cuba--for, although the
DTA, unlike either Article 21 or the AUMF,
had been enacted after the President had
convened the commission in question, the
DTA contained no language authorizing
that tribunal or any other at Guantanamo
Bay; and (3) together, the UCMJ (10
U.S.C.S. 801 et seq.), the AUMF, and
the DTA at most acknowledged a general
Presidential authority to convene military
commissions in circumstances where
[***730] justified under the Constitution
and laws, including the law of war.
COURTS 757 > -- challenge to military
commissions procedures -- pre-enforcement
review -- abstention > Headnote:
LEdHN[13] [13]
On certiorari to review a Federal Court of
Appeals decision to the effect that a military
Guantanamo
Bay
detainee,
who
Angelo Tannuzzo
Page 16 of 136
548 U.S. 557, *557; 126 S. Ct. 2749, **2749; 165 L. Ed. 2d 723, ***730

U. S. T. 3316), it was appropriate for the
United States Supreme Court to review the
commissions procedures in advance of a
final decision--the timing of which was
left entirely to the discretion of the
President under the Detainee Treatment
Act of 2005 (DTA) (119 Stat. 2739)--as (1)
because the detainee apparently was not
subject to the death penalty (at least as
matters currently stood) and might receive
a sentence shorter than 10 years
imprisonment, he had no automatic right to
review of the commissions final decision
before a federal court under the DTA; and
(2) there was a basis to presume that the
procedures employed during the detainees
trial would violate the law. (Stevens, J.,
Breyer, JJ.)
WAR 30 > -- military commissions -courts-martial -- procedural uniformity
> Headnote:
LEdHN[14] [14]
The uniformity principle of 36(b) of the
Uniform Code of Military Justice (10
U.S.C.S. 836(b)) --which requires that
procedural rules for courts-martial and
military commissions adopted by the
President must be uniform insofar as
practicable--is not inflexible, as it does
not preclude, in military commissions, all
departures from the procedures dictated
for use by courts-martial. However, any
departure must be tailored to the exigency
that necessitates it. (Stevens, J., joined by

Kennedy, Souter, Ginsburg, and Breyer,
JJ.)
APPEAL 1289 > -- military commission -Presidents determination -- assumption
> Headnote:
LEdHN[15] [15]
Guantanamo
Bay
detainee,
who
U. S. T. 3316), with respect to the
uniformity principle of 36(b) of the
Uniform Code of Military Justice (10
U.S.C.S. 836(b))--which required that
procedural rules for courts-martial and
military commissions adopted by the
President had to be uniform insofar as
practicable--the United States Supreme
Court assumed that complete deference
was owed to the Presidents determination
that it was impracticable to apply to the
commission in question the rules and
principles of law that governed the trial of
criminal cases in the United States district
courts, as required under 36(a) of the
UCMJ (10 U.S.C.S. 836(a)). (Stevens, J.,
Breyer, JJ.) [***731]
APPEAL 1293 > -- allegations in charge -presumption of truth > Headnote:
Angelo Tannuzzo
Page 17 of 136
548 U.S. 557, *557; 126 S. Ct. 2749, **2749; 165 L. Ed. 2d 723, ***731
LEdHN[16] [16]
Guantanamo
Bay
detainee,
who
U. S. T. 3316), the United States Supreme
Court was required to assume that the
allegations made in the Federal
Governments charge against the detainee
were true. (Stevens, J., joined by Kennedy,
Syllabus
Pursuant to Congress Joint Resolution
authorizing the President to use all
determines planned, authorized, committed,
or aided the September 11, 2001, al Qaeda
terrorist attacks (AUMF), U.S. Armed
Forces invaded Afghanistan. During the
hostilities, in 2001, militia forces captured
petitioner Hamdan, a Yemeni national, and
turned him over to the U.S. military, which,
in 2002, transported him to prison in
Guantanamo [***732] Bay, Cuba. Over a
year later, the President deemed Hamdan
eligible for trial by military commission
for then-unspecified crimes. After another
year, he was charged with conspiracy to
commit . . . offenses triable by military
commission. In habeas and mandamus
petitions, Hamdan asserted that the military

commission lacks authority to try him
because (1) neither congressional Act nor
the common law of war supports trial by
this commission for conspiracy, an offense
that, Hamdan says, is not a violation of the
law of war; and (2) the procedures adopted
to try him violate 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 habeas relief
and stayed the commissions proceedings,
concluding that the Presidents authority to
establish military commissions extends
only to offenders or offenses triable by
such a commission under the law of war;
that such law includes the Third Geneva
Convention; that Hamdan is entitled to that
Conventions full protections until
adjudged, under it, not to be a prisoner of
war; and that, whether or not Hamdan is
properly classified a prisoner of war, the
commission convened to try him was
established in violation of both the Uniform
Code of Military Justice (UCMJ), 10 U.S.C.
801 et seq., and Common Article 3 of the
Third Geneva Convention because it had
the power to convict based on evidence the
accused would never see or hear. The D. C.
Circuit reversed. Although it declined the
Governments invitation to abstain from
considering Hamdans challenge, cf.
Schlesinger v. Councilman, 420 U.S. 738,
95 S. Ct. 1300, 43 L. Ed. 2d 591, the
appeals court ruled, on the merits, that
Hamdan was not entitled to relief because
the Geneva Conventions are not judicially
enforceable. The court also concluded that
Angelo Tannuzzo
Page 18 of 136
548 U.S. 557, *557; 126 S. Ct. 2749, **2749; 165 L. Ed. 2d 723, ***732
Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 2, 87

L.
Ed.
3,
foreclosed
any
separation-of-powers objection to the
military commissions jurisdiction, and that
Hamdans trial before the commission
would violate neither the UCMJ nor Armed
Forces regulations implementing the
Geneva Conventions.
Held:
The judgment is reversed, and the case is
remanded.415 F.3d 33
, reversed and remanded.
Justice Stevens delivered the opinion of
the Court, except as to Parts V and VI-D-iv,
concluding:
1. The Governments motion to dismiss,
based on the Detainee Treatment Act of
2005 (DTA), is denied. DTA 1005(e)(1)
provides that no court . . . shall have
jurisdiction to hear or consider . . . an
application for . . . habeas corpus filed by
. . . an alien detained . . . at Guantanamo
Bay. Section 1005(h)(2) provides that
1005(e)(2) and (3) --which give the D. C.
Circuit exclusive jurisdiction to review
the final decisions of, respectively,
combatant status review tribunals and
military commissions--shall apply with
respect to any claim whose review is . . .
pending on the DTAs effective date, as
was Hamdans case. The Governments
argument that 1005(e)(1) and (h) repeal
this Courts jurisdiction to review the
decision below is rebutted by ordinary
principles of statutory construction. A
negative inference may be drawn from
Congress failure to include 1005(e)(1)

within the scope of 1005(h)(2). Cf., e.g.,
Lindh v. Murphy, 521 U.S. 320, 330, 117 S.
Ct. 2059, [***733] 138 L. Ed. 2d 481. If
. . . Congress was reasonably concerned to
ensure that [ 1005(e)(2) and (3)] be
applied to pending cases, it should have
been just as concerned about [ 1005(e)(1)],
unless it had the different intent that the
latter [section] not be applied to the general
run of pending cases. Id., at 329, 117 S.
Ct. 2059, 138 L. Ed. 2d 481. If anything,
the evidence of deliberate omission is
stronger here than it was in Lindh. The
legislative history shows that Congress not
only considered the respective temporal
reaches of 1005(e)(1), (2), and (3)
together at every stage, but omitted
paragraph (1) from its directive only after
having rejected earlier proposed versions
of the statute that would have included
what is now paragraph (1) within that
directives scope. Congress rejection of
the very language that would have achieved
the result the Government urges weighs
heavily against the Governments
interpretation. See Doe v. Chao, 540 U.S.
614, 621-623, 124 S. Ct. 1204, 157 L. Ed.
2d 1122.
2. The Government argues unpersuasively
that abstention is appropriate under
Councilman, which concluded that, as a
matter of comity, federal courts should
normally abstain from intervening in
pending courts-martial against service
members, see 420 U.S., at 740, 95 S. Ct.
1300, 43 L. Ed. 2d 591. Neither of the
comity
considerations
Councilman
identified weighs in favor of abstention
Angelo Tannuzzo
Page 19 of 136
548 U.S. 557, *557; 126 S. Ct. 2749, **2749; 165 L. Ed. 2d 723, ***733
here. First, the assertion that military

discipline and, therefore, the Armed Forces
efficient operation, are best served if the
military justice system acts without regular
interference from civilian courts, see id., at
752, 95 S. Ct. 1300, 43 L. Ed. 2d 591, is
inapt because Hamdan is not a service
member. Second, the view that federal
courts should respect the balance Congress
struck when it created an integrated system
of military courts and review procedures
is inapposite, since the tribunal convened
to try Hamdan is not part of that integrated
system. Rather than Councilman, the most
relevant precedent is Ex parte Quirin,
where the Court, far from abstaining
pending the conclusion of ongoing military
proceedings, expedited its review because
of (1) the public importance of the
questions raised, (2) the Courts duty, in
both peace and war, to preserve the
constitutional safeguards of civil liberty,
and (3) the public interest in a decision on
those questions without delay, 317 U.S. at
19, 63 S. Ct. 2, 87 L. Ed. 3. The
Government
has
identified
no
countervailing interest that would permit
federal courts to depart from their general
duty to exercise the jurisdiction Congress
has conferred on them.
3. The military commission at issue is not
expressly authorized by any congressional
Act. Quirin held that Congress had, through
Article of War 15, sanctioned the use of
military commissions to try offenders or
offenses against the law of war. 317 U.S.,
at 28, 63 S. Ct. 2, 87 L. Ed. 3. UCMJ Art.
21, which is substantially identical to the
old Art. 15, reads: The jurisdiction [of]
courts-martial shall not be construed as

depriving military commissions . . . of
concurrent jurisdiction in respect of
offenders or offenses that by statute or by
the law of war may be tried by such . . .
commissions. 10 U.S.C. 821. Contrary
to the Governments assertion, even Quirin
did not view that authorization as a
sweeping mandate for the President to
invoke military commissions whenever he
deems [***734] them necessary. Rather,
Quirin recognized that Congress had
simply preserved what power, under the
Constitution and the common law of war,
the President already had to convene
military commissions--with the express
condition that he and those under his
command comply with the law of war. See
317 U.S., at 28-29, 63 S. Ct. 2, 87 L. Ed. 3.
Neither the AUMF nor the DTA can be
read to provide specific, overriding
authorization for the commission convened
to try Hamdan. Assuming the AUMF
activated the Presidents war powers, see
Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.
Ct. 2633, 159 L. Ed. 2d 578, and that those
powers include authority to convene
military commissions in appropriate
circumstances, see, e.g., id., at 518, 124 S.
Ct. 2633, 159 L. Ed. 2d 578, there is
nothing in the AUMFs text or legislative
history even hinting that Congress intended
to expand or alter the authorization set
forth in UCMJ Art. 21. Cf. Ex parte Yerger,
8 Wall. 85, 105, 19 L. Ed. 332. Likewise,
the DTA cannot be read to authorize this
commission. Although the DTA, unlike
either Art. 21 or the AUMF, was enacted
after the President convened Hamdans
commission, it contains no language
Angelo Tannuzzo
Page 20 of 136
548 U.S. 557, *557; 126 S. Ct. 2749, **2749; 165 L. Ed. 2d 723, ***734
authorizing that tribunal or any other at

Guantanamo Bay. Together, the UCMJ, the
AUMF, and the DTA at most acknowledge
a general Presidential authority to convene
military commissions in circumstances
where justified under the Constitution and
laws, including the law of war. Absent a
more specific congressional authorization,
this Courts task is, as it was in Quirin, to
decide whether Hamdans military
commission is so justified.
4. The military commission at issue lacks
the power to proceed because its structure
and procedures violate both the UCMJ and
the four Geneva Conventions signed in
1949.
(a) The commissions procedures, set forth
in Commission Order No. 1, provide,
among other things, that an accused and
his civilian counsel may be excluded from,
and precluded from ever learning what
evidence was presented during, any part of
the proceeding the official who appointed
the commission or the presiding officer
decides to close. Grounds for closure
include the protection of classified
information, the physical safety of
participants and witnesses, the protection
of intelligence and law enforcement
sources, methods, or activities, and other
national security interests. Appointed
military defense counsel must be privy to
these closed sessions, but may, at the
presiding officers discretion, be forbidden
to reveal to the client what took place
therein. Another striking feature is that the
rules governing Hamdans commission
permit the admission of any evidence that,
in the presiding officers opinion, would

have probative value to a reasonable
person. Moreover, the accused and his
civilian counsel may be denied access to
classified
and
other
protected
information, so long as the presiding
officer concludes that the evidence is
probative and that its admission without
the accuseds knowledge would not result
in the denial of a full and fair trial.
(b) The Government objects to this Courts
consideration of a procedural challenge at
this stage on the grounds, inter alia, that
Hamdan will be able to raise such a
challenge following a final decision under
the DTA, and that there is no basis to
presume, before the trial has even
commenced, that it will not be conducted
[***735] in good faith and according to
law. These contentions are unsound. First,
because Hamdan apparently is not subject
to the death penalty (at least as matters
now stand) and may receive a prison
sentence shorter than 10 years, he has no
automatic right to federal-court review of
the commissions final decision under
DTA 1005(e)(3). Second, there is a basis
to presume that the procedures employed
during Hamdans trial will violate the law:
He will be, and indeed already has been,
excluded from his own trial. Thus, review
of the procedures in advance of a final
decision is appropriate.
(c) Because UCMJ Article 36 has not been
complied with here, the rules specified for
Hamdans commission trial are illegal.
The procedures governing such trials
historically have been the same as those
Angelo Tannuzzo
Page 21 of 136
548 U.S. 557, *557; 126 S. Ct. 2749, **2749; 165 L. Ed. 2d 723, ***735
governing courts-martial. Although this

uniformity principle is not inflexible and
does not preclude all departures from
courts-martial procedures, any such
departure must be tailored to the exigency
that necessitates it. That understanding is
reflected in Art. 36(b), which provides that
the procedural rules the President
promulgates for court-martial and military
commissions alike must be uniform
insofar as practicable, 10 U.S.C. 836(b).
The practicability determination the
President has made is insufficient to justify
variances from the procedures governing
courts-martial. The President here has
determined, pursuant to the requirement of
Art. 36(a), that it is impracticable to apply
the rules and principles of law that govern
the trial of criminal cases in the United
States district courts to Hamdans
commission. The President has not,
however, made a similar official
determination that it is impracticable to
apply the rules for court-martial. And even
if subsection (b)s requirements could be
satisfied without an official practicability
determination,
that
subsections
requirements are not satisfied here. Nothing
in the record demonstrates that it would be
impracticable to apply court-martial rules
here. There is no suggestion, e.g., of any
logistical difficulty in securing properly
sworn and authenticated evidence or in
applying the usual principles of relevance
and admissibility. It is not evident why the
danger posed by international terrorism,
considerable though it is, should require,
in the case of Hamdans trial, any variance
from the courts-martial rules. The absence
of any showing of impracticability is
particularly disturbing when considered in

light of the clear and admitted failure to
apply one of the most fundamental
protections afforded not just by the Manual
for Courts-Martial but also by the UCMJ
itself: The right to be present. See 10
U.S.C. 839(c). Because the jettisoning of
so basic a right cannot lightly be excused
as practicable, the court-martial rules
must apply. Since it is undisputed that
Commission Order No. 1 deviates in many
significant respects from those rules, it
necessarily violates Art. 36(b).
(d) The procedures adopted to try Hamdan
also violate the Geneva Conventions. The
D. C. Circuit dismissed Hamdans
challenge in this regard on the grounds,
inter alia, that the Conventions are not
judicially enforceable and that, in any
event, Hamdan is not entitled to their
protections. Neither of these grounds is
persuasive.
(i) The appeals court relied on a statement
in Johnson v. Eisentrager, 339 U.S. 763,
789, n 14, 70 S. Ct. 936, 94 L. Ed. 1255,
suggesting that this [***736] Court lacked
power even to consider the merits of a
Convention argument because the political
and military authorities had sole
responsibility for observing and enforcing
prisoners rights under the Convention.
However, Eisentrager does not control
here because, regardless of the nature of
the rights conferred on Hamdan, cf. United
States v. Rauscher, 119 U.S. 407, 7 S. Ct.
234, 30 L. Ed. 425, they are indisputably
part of the law of war, see Hamdi, 542
U.S., at 520-521, 124 S. Ct. 2633, 159 L.
Angelo Tannuzzo
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Ed. 2d 578, compliance with which is the provides that signatories must abide by all
condition upon which UCMJ Art. 21 terms of the Conventions even if another
party to the conflict is a nonsignatory, so
authority is granted.
(ii) Alternatively, the appeals court agreed long as the nonsignatory accepts and
with the Government that the Conventions applies those terms. Common Article 3,
do not apply because Hamdan was captured by contrast, affords some minimal
during the war with al Qaeda, which is not protection, falling short of full protection
a Convention signatory, and that conflict is under the Conventions, to individuals
distinct from the war with signatory associated with neither a signatory nor
Afghanistan. The Court need not decide even a nonsignatory who are involved in a
the merits of this argument because there is conflict in the territory of a signatory.
at least one provision of the Geneva The latter kind of conflict does not involve
Conventions that applies here even if the a clash between nations (whether
relevant conflict is not between signatories. signatories or not).
Common Article 3, which appears in all
four Conventions, provides that, in a
conflict not of an international character
occurring in the territory of one of the
High Contracting Parties [i.e., signatories],
each Party to the conflict shall be bound to
apply, as a minimum, certain provisions
protecting [p]ersons . . . placed hors de
combat by . . . detention, including a
prohibition on the passing of sentences . .
. without previous judgment . . . by a
regularly constituted court affording all the
judicial guarantees . . . recognized as
indispensable by civilized peoples. The
D. C. Circuit ruled Common Article 3
inapplicable to Hamdan because the
conflict with al Qaeda is international in
scope and thus not a conflict not of an
international character. That reasoning is
erroneous. That the quoted phrase bears its
literal meaning and is used here in
nations is demonstrated by Common Article
2, which limits its own application to any
armed conflict between signatories and
(iii) While Common Article 3 does not

define its regularly constituted court
phrase, other sources define the words to
mean an ordinary military cour[t] that is
established and organized in accordance
with the laws and procedures already in
force in a country. The regular military
courts in our system are the courts-martial
established by congressional statute. At a
minimum, a military commission can be
regularly constituted only if some
practical need explains deviations from
court-martial practice. No such need has
been demonstrated here.
(iv) Common Article 3s requirements are
general, crafted to accommodate a wide
variety of legal systems, but they are
requirements nonetheless. The commission
convened to try Hamdan does not meet
those requirements.
[***737] (e) Even assuming that Hamden
is a dangerous individual who would cause

great harm or death to innocent civilians
given the opportunity, the Executive
Angelo Tannuzzo
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nevertheless must comply with the

prevailing rule of law in undertaking to try
him and subject him to criminal
punishment.
Justice Stevens, joined by Justice Souter,
Justice Ginsburg, and Justice Breyer,
concluded in Parts V and VI-D-iv:
1. The Government has not charged
Hamdan with an offens[e] . . . that . . . by
the law of war may be tried by military
commissio[n], 10 U.S.C. 821. Of the
three sorts of military commissions used
historically, the law-of-war type used in
Quirin and other cases is the only model
available to try Hamdan. Among the
preconditions, incorporated in Article of
War 15 and, later, UCMJ Art. 21, for such
a tribunals exercise of jurisdiction are,
inter alia, that it must be limited to trying
offenses committed within the convening
commanders field of command, i.e., within
the theater of war, and that the offense
charged must have been committed during,
not before or after, the war. Here, Hamdan
is not alleged to have committed any overt
act in a theater of war or on any specified
date after September 11, 2001. More
importantly, the offense alleged is not
triable by law-of-war military commission.
Although the common law of war may
render triable by military commission
certain offenses not defined by statute,
Quirin, 317 U.S., at 30, 63 S. Ct. 2, 87 L.
Ed. 3, the precedent for doing so with
respect to a particular offense must be
plain and unambiguous, cf., e.g., Loving v.
United States, 517 U.S. 748, 771, 116 S.
Ct. 1737, 135 L. Ed. 2d 36. That burden is
far from satisfied here. The crime of

conspiracy has rarely if ever been tried
as such in this country by any law-of-war
military commission not exercising some
other form of jurisdiction, and does not
appear in either the Geneva Conventions
or the Hague Conventions--the major
treaties on the law of war. Moreover, that
conspiracy is not a recognized violation of
the law of war is confirmed by other
international sources, including, e.g., the
International Military Tribunal at
Nuremberg, which pointedly refused to
recognize conspiracy to commit war crimes
as such a violation. Because the conspiracy
charge does not support the commissions
jurisdiction, the commission lacks authority
to try Hamdan.
2. The phrase all the judicial guarantees .
. . recognized as indispensable by civilized
peoples in Common Article 3 of the
Geneva Conventions is not defined, but it
must be understood to incorporate at least
the barest of the trial protections recognized
by customary international law. The
procedures adopted to try Hamdan deviate
from those governing courts-martial in
ways not justified by practical need, and
thus fail to afford the requisite guarantees.
Moreover,
various
provisions
of
Commission Order No. 1 dispense with the
principles, which are indisputably part of
customary international law, that an
accused must, absent disruptive conduct or
consent, be present for his trial and must
be privy to the evidence against him.
Justice Kennedy, agreeing that Hamdans
military commission is unauthorized under
Angelo Tannuzzo
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548 U.S. 557, *557; 126 S. Ct. 2749, **2749; 165 L. Ed. 2d 723, ***737
the Uniform Code of Military Justice, 10

U.S.C. 836 and 821, and the Geneva
Conventions, concluded that there is
therefore no need to decide whether
Common Article 3 of the Conventions
requires that the accused have the right to
be [***738] present at all stages of a
criminal trial or to address the validity of
the conspiracy charge against Hamdan.
Stevens, J., announced the judgment of the
Court and delivered the opinion of the
Court with respect to Parts I through IV, VI
through VI-D-iii, VI-D-v, and VII, in which
Kennedy, Souter, Ginsburg, and Breyer,
JJ., joined, and an opinion with respect to
Parts V and VI-D-iv, in which Souter,
Ginsburg, and Breyer, JJ., joined. Breyer,
J., filed a concurring opinion, in which
Kennedy, Souter, and Ginsburg, JJ., joined,
post, p. ___. Kennedy, J., filed an opinion
concurring in part, in which Souter,
Ginsburg, and Breyer, JJ., joined as to
Parts I and II, post, p. ___.. Scalia, J., filed
a dissenting opinion, in which Thomas and
Alito, JJ., joined, post, p. ___.. Thomas, J.,
filed a dissenting opinion, in which Scalia,
J., joined, and in which Alito, J., joined as
to all but Parts I, II-C-1, and III-B-2, post,
p. ___.. Alito, J., filed a dissenting opinion,
in which Scalia and Thomas, JJ., joined as
to Parts I through III, post, p. ___.. Roberts,
C. J., took no part in the consideration or
decision of the case.
Judges: Stevens, J., announced the

judgment of the Court and delivered the
opinion of the Court with respect to Parts I
through IV, VI through VI-D-iii, VI-D-v,
and VII, in which Kennedy, Souter,
Ginsburg, and Breyer, JJ., joined, and an
opinion with respect to Parts V and VI-D-iv,
in which Souter, Ginsburg, and Breyer, JJ.,
joined. Breyer, J., filed a concurring
opinion, in which Kennedy, Souter, and
Ginsburg, JJ., joined. Kennedy, J., filed an
opinion concurring in part, in which Souter,
Ginsburg, and Breyer, JJ., joined as to
Parts I and II. Scalia, J., filed a dissenting
opinion, in which Thomas and Alito, JJ.,
joined. Thomas, J., filed a dissenting
opinion, in which Scalia, J., joined, and in
which Alito, J., joined as to all but Parts I,
II-C-1, and III-B-2. Alito, J., filed a
dissenting opinion, in which Scalia and
Thomas, JJ., joined as to Parts I through
III. Roberts, C. J., took no part in the
consideration or decision of the case.
Opinion by: STEVENS
Opinion
Justice Stevens
announced the judgment of the Court and
delivered the opinion of the Court with
respect to Parts I through IV, Parts VI
through VI-D-iii, Part VI-D-v, and Part
VII, and an opinion with respect to Parts V
and VI-D-iv, in which Justice Souter,
Justice Ginsburg, and Justice Breyer join.
[*566]
[**2759]
Counsel: Neal Katyal argued the cause for

LEdHN[1A] [1A] LEdHN[2A] [2A]
petitioner.
Petitioner Salim Ahmed Hamdan, a Yemeni
Paul D. Clement argued the cause for national, is in custody at an American
prison in Guantanamo Bay, Cuba. In
respondents.
Angelo Tannuzzo
Page 25 of 136
548 U.S. 557, *566; 126 S. Ct. 2749, **2759; 165 L. Ed. 2d 723, ***738
November 2001, during hostilities between

the United States and the Taliban (which
then governed Afghanistan), Hamdan was
captured by militia forces and turned over
to the U.S. military. In June 2002, he was
transported to Guantanamo Bay. Over a
year later, the President deemed him
eligible for trial by military commission
for then-unspecified crimes. After another
year had passed, Hamdan was charged
with one count of conspiracy to commit .
. . offenses triable by military commission.
App. to Pet. for Cert. 65a.
[*567] Hamdan filed petitions for writs of
habeas corpus and mandamus to challenge

the Executive Branchs intended means of
prosecuting this charge. He concedes that a
court-martial constituted in accordance
with the Uniform Code of Military Justice
(UCMJ), 10 U.S.C. 801 et seq. (2000 ed.
and Supp. III) , would have authority to try
him. His objection is that the military
commission the President has convened
lacks such authority, for two principal
reasons: First, neither congressional Act
nor the common law of war supports trial
by this commission for the crime of
conspiracy--an offense that, Hamdan says,
is not a violation of the law of war. Second,
Hamdan contends, the procedures that the
President has adopted to try him violate
the most basic tenets of military and
international law, including the principle
that a defendant must be permitted to see
and hear the evidence against him.
Appeals for the District of Columbia

Circuit reversed. 415 F.3d 33 (2005).
Recognizing, as we did over a half century
ago, that trial by military commission is an
[***739] extraordinary measure raising
important questions about the balance of
powers in our constitutional structure, Ex
parte Quirin, 317 U.S. 1, 19, 63 S. Ct. 2, 87
L. Ed. 3 (1942), we granted certiorari. 546
U.S. 1002, 126 S. Ct. 622, 163 L. Ed. 2d
504 (2005).
For the reasons that follow, we conclude
that the military commission convened to
try Hamdan lacks power to proceed because
its structure and procedures violate both
the UCMJ and the Geneva Conventions.
Four of us also conclude, see Part V, infra,
that the offense with which Hamdan
[**2760]
has been charged is not an
offens[e] that by . . . the law of war may
be tried by military commissions. 10
U.S.C. 821.
I
On September 11, 2001, agents of the al
Qaeda terrorist organization hijacked
commercial airplanes and attacked the
[*568] World Trade Center in New York
City and the national headquarters of the
Department of Defense in Arlington,
Virginia. Americans will never forget the
devastation wrought by these acts. Nearly
3,000 civilians were killed.
Congress responded by adopting a Joint

Resolution authorizing the President to
The District Court granted Hamdans use all necessary and appropriate force
request for a writ of habeas corpus. 344 F. against those nations, organizations, or
Supp. 2d 152 (DC 2004). The Court of persons he determines planned, authorized,
Angelo Tannuzzo
Page 26 of 136
548 U.S. 557, *568; 126 S. Ct. 2749, **2760; 165 L. Ed. 2d 723, ***739
committed, or aided the terrorist attacks . .

. in order to prevent any future acts of
international terrorism against the United
States by such nations, organizations or
persons. Authorization for Use of Military
Force (AUMF), 115 Stat. 224, note
following 50 U.S.C. 1541 (2000 ed.,
Supp. III) . Acting pursuant to the AUMF,
and having determined that the Taliban
regime had supported al Qaeda, the
President ordered the Armed Forces of the
United States to invade Afghanistan. In the
ensuing hostilities, hundreds of individuals,
Hamdan among them, were captured and
eventually detained at Guantanamo Bay.
On November 13, 2001, while the United
States was still engaged in active combat
with the Taliban, the President issued a
comprehensive military order intended to
govern the Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against
Terrorism, 66 Fed. Reg. 57833 (hereinafter
November 13 Order or Order). Those
subject to the November 13 Order include
any noncitizen for whom the President
determines there is reason to believe that
he or she (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. Id., at 57834. Any such
individual shall, when tried, be tried by
military commission for any and all
offenses triable by military commission
that such individual is alleged to have
committed, and may be punished in
accordance with the penalties provided
under applicable law, including life
imprisonment or death. Ibid. The
November [*569] 13 Order vested in the
Secretary of Defense the power to appoint

military commissions to try individuals
subject to the Order, but that power has
since been delegated to John D. Altenburg,
Jr., a retired Army major general and
longtime military lawyer who has been
designated Appointing Authority for
Military Commissions.
On July 3, 2003, the President announced
his determination that Hamdan and five
other detainees at Guantanamo Bay were
subject to the November 13 Order and thus
triable [***740] by military commission.
In December 2003, military counsel was
appointed to represent Hamdan. Two
months later, counsel filed demands for
charges and for a speedy trial pursuant to
Article 10 of the UCMJ, 10 U.S.C. 810.
On February 23, 2004, the legal adviser to
the Appointing Authority denied the
applications, ruling that Hamdan was not
entitled to any of the protections of the
UCMJ. Not until July 13, 2004, after
Hamdan had commenced this action in the
United States District Court for the Western
District of Washington, did the Government
finally charge him with the offense for
which, a year earlier, he had been deemed
eligible for trial by military commission.
The charging document, which is unsigned,
contains 13 numbered paragraphs. The
first two paragraphs recite the asserted
bases for the military commissions
[**2761]
jurisdiction-- namely, the
November 13 Order and the Presidents
July 3, 2003, declaration that Hamdan is
eligible for trial by military commission.
The next nine paragraphs, collectively
Angelo Tannuzzo
Page 27 of 136
548 U.S. 557, *569; 126 S. Ct. 2749, **2761; 165 L. Ed. 2d 723, ***740
entitled General Allegations, describe al

Qaedas activities from its inception in
1989 through 2001 and identify Usama bin
Laden as the groups leader. Hamdan is not
mentioned in these paragraphs.
Only the final two paragraphs, entitled
Charge: Conspiracy, contain allegations
against Hamdan. Paragraph 12 charges
that from on or about February 1996 to on
or about November 24, 2001, Hamdan
willfully and knowingly [*570] joined an
enterprise of persons who shared a common
criminal purpose and conspired and agreed
with [named members of al Qaeda] to
commit the following offenses triable by
military commission: attacking civilians;
attacking civilian objects; murder by an
unprivileged belligerent; and terrorism.
App. to Pet. for Cert. 65a. There is no
allegation that Hamdan had any command
responsibilities, played a leadership role,
or participated in the planning of any
activity.
Paragraph 13 lists four overt acts that
Hamdan is alleged to have committed
sometime between 1996 and November
2001 in furtherance of the enterprise and
conspiracy: (1) he acted as Usama bin
Ladens bodyguard and personal driver,
believ[ing] all the while that bin Laden
and his associates were involved in
terrorist acts prior to and including the
attacks of September 11, 2001; (2) he
arranged for transportation of, and actually
transported, weapons used by al Qaeda

members and by bin Ladens bodyguards
(Hamdan among them); (3) he drove or
accompanied [O]sama bin Laden to various
al Qaida-sponsored training camps, press
conferences, or lectures, at which bin
Laden encouraged attacks against
Americans; and (4) he received weapons
training at al Qaeda-sponsored camps. Id.,
at 65a-67a.
After this formal charge was filed, the
United States District Court for the Western
District of Washington transferred
Hamdans habeas and mandamus petitions
to the United States District Court for the
District of Columbia. Meanwhile, a
Combatant Status Review Tribunal (CSRT)
convened pursuant to a military order
issued on July 7, 2004, decided that
Hamdans continued detention at
Guantanamo Bay was warranted because
[***741] he was an enemy combatant. 1
[*571] Separately, proceedings before the
military commission commenced.
On November 8, 2004, however, the
District Court granted Hamdans petition
for habeas corpus and stayed the
commissions proceedings. It concluded
that the Presidents authority to establish
military commissions extends only to
offenders or offenses triable by military
[commission] under the law of war, 344
F. Supp. 2d, at 158; that the law of war
includes the Geneva Convention (III)
An enemy combatant is defined by the military order as an individual who was part of or supporting Taliban or al Qaeda
forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. Memorandum from
Deputy Secretary of Defense Paul Wolfowitz re: Order Establishing Combatant Status Review Tribunal a (July 7, 2004), available
at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf (all Internet materials as visited June 26, 2006, and available in
Clerk of Courts case file).
Angelo Tannuzzo
Page 28 of 136
548 U.S. 557, *571; 126 S. Ct. 2749, **2761; 165 L. Ed. 2d 723, ***741
Relative to the Treatment of Prisoners of

War, Aug. 12, 1949, [1955] 6 U. S. T.
3316, T.I.A.S. No. 3364 (Third Geneva
Convention); that Hamdan is entitled to
the full protections of the Third Geneva
Convention until adjudged, in compliance
with that treaty, not [**2762] to be a
prisoner of war; and that, whether or not
Hamdan is properly classified as a prisoner
of war, the military commission convened
to try him was established in violation of
both the UCMJ and Common Article 3 of
the Third Geneva Convention because it
had the power to convict based on evidence
the accused would never see or hear. 344 F.
Supp. 2d, at 158-172.
The Court of Appeals for the District of
Columbia Circuit reversed. Like the District
Court, the Court of Appeals declined the
Governments invitation to abstain from
considering Hamdans challenge. Cf.
Schlesinger v. Councilman, 420 U.S. 738,
95 S. Ct. 1300, 43 L. Ed. 2d 591 (1975).
On the merits, the panel rejected the District
Courts further conclusion that Hamdan
was entitled to relief under the Third
Geneva Convention. All three judges
agreed that the Geneva Conventions were
not judicially enforceable, 415 F.3d at
38, and two thought that the Conventions
did not in any event apply to Hamdan, id.,
at 40-42; but see id., at 44 (Williams, J.,
concurring). In other portions of its opinion,
the court concluded that our decision in
Quirin foreclosed any separation-of-powers
the military
objection to [*572]
commissions jurisdiction, and held that
Hamdans trial before the contemplated
commission would violate neither the
UCMJ nor U.S. Armed Forces regulations

intended to implement the Geneva
Conventions. 415 F.3d at 38, 42-43.
On November 7, 2005, we granted
certiorari to decide whether the military
commission convened to try Hamdan has
authority to do so, and whether Hamdan
may rely on the Geneva Conventions in
these proceedings.
II
LEdHN[3A] [3A] On February 13, 2006,
the Government filed a motion to dismiss
the writ of certiorari. The ground cited for
dismissal was the recently enacted Detainee
Treatment Act of 2005 (DTA), Pub. L.
109-148, 119 Stat. 2739. We postponed our
ruling on that motion pending argument on
the merits, 546 U.S. 1166, 126 S. Ct. 1317,
164 L. Ed. 2d 45 (2006), and now deny it.
The DTA, which was signed into law on
December 30, 2005, addresses a broad
swath of subjects related to detainees. It
places restrictions on the [***742]
treatment and interrogation of detainees in
U.S. custody, and it furnishes procedural
protections for U.S. personnel accused of
engaging in improper interrogation. DTA
1002-1004, 119 Stat. 2739-2740. It also
sets forth certain procedures for status
review of detainees outside the United
States. 1005, id., at 2740. Subsections
(a) through (d) of 1005 direct the
Secretary of Defense to report to Congress
the procedures being used by CSRTs to
determine the proper classification of
detainees held in Guantanamo Bay, Iraq,
and Afghanistan, and to adopt certain
safeguards as part of those procedures.
Angelo Tannuzzo
Page 29 of 136
548 U.S. 557, *572; 126 S. Ct. 2749, **2762; 165 L. Ed. 2d 723, ***742
Subsection (e) of 1005, which is entitled

have been properly detained as an
Judicial Review of Detention of Enemy
enemy combatant. 1005(e), id.,
Combatants, supplies the basis for the
at 2741-2742.
Governments jurisdictional argument. The
subsection contains three numbered HN2 Paragraph (2) of subsection (e) vests
paragraphs. The first paragraph amends in the Court of Appeals for the District of
Columbia
Circuit
the
exclusive
the judicial code as follows:
any final decision of a [CSRT] that an alien
[*573]
HN1
(1)
In
is properly detained as an enemy
general.--Section 2241 of title 28,
combatant. Paragraph (2) also delimits
United States Code, is amended by
the scope of that review. See
adding at the end the following:
1005(e)(2)(C)(i)-(ii), id., at 2742.
(e) Except as provided in section
Paragraph (3) mirrors paragraph (2) in
1005 of the Detainee Treatment Act
structure, but governs judicial review of
of 2005, no court, justice, or judge
final decisions of military commissions,
shall have jurisdiction to hear or
not CSRTs. HN3 It vests in the Court of
consider-Appeals for the District of Columbia
(1) an application for a writ of
Circuit exclusive jurisdiction to determine
habeas corpus filed by or on behalf
the validity of any final decision rendered
of an alien detained by the
pursuant to Military Commission Order
Department
of
Defense
at
No. 1, dated August 31, 2005 (or any
Guantanamo Bay, Cuba; or
successor military order). 1005(e)(3)(A),
[**2763] (2) any other action
id., at 2743. 2 [*574] Review is as of right
against the United States or its agents
for any alien sentenced to death or a term
relating to any aspect of the detention
of imprisonment of 10 years or more, but
by the Department of Defense of an
is at the Court of Appeals discretion in all
alien at Guantanamo Bay, Cuba,
other cases. The scope of review is limited
who-to the following inquiries:
(A) is currently in military custody;
or
(B) has been determined by the
United States Court of Appeals for
the District of Columbia Circuit in
accordance with the procedures set
forth in section 1005(e) of the
Detainee Treatment Act of 2005 to
2
(i) whether the final decision [of

the military commission] was
consistent with the standards and
procedures specified in the military
order [***743] referred to in
subparagraph (A); and
(ii) to the extent the Constitution
and laws of the United States are
The military order referenced in this section is discussed further in Parts III and VI, infra.
Angelo Tannuzzo
Page 30 of 136
548 U.S. 557, *574; 126 S. Ct. 2749, **2764; 165 L. Ed. 2d 723, ***743
applicable, whether the use of such

standards and procedures to reach
the final decision is consistent with
the Constitution and laws of the
United States. 1005(e)(3)(D), ibid.
Finally, 1005 contains an effective date
provision, which reads as follows:
HN4 (1) In general.--This section
shall take effect on the date of the
enactment of this Act.
(2) Review of Combatant Status
Tribunal and Military Commission
Decisions.--Paragraphs (2) and (3)
of subsection (e) shall apply with
respect to any claim whose review is
governed by one of such paragraphs
and that is pending on or after the
date of the enactment of this Act.
1005(h), id., at 2743-2744. 3
The Act is silent about whether paragraph
(1) of subsection (e) shall apply to claims
pending on the date of enactment.
The Government argues that 1005(e)(1)
and 1005(h) had the immediate effect,
upon enactment, of repealing federal
jurisdiction not just over detainee habeas
actions yet to be filed but also over any
such actions then pending in any federal
court--including this Court. Accordingly, it
argues, we [*575] lack jurisdiction to
review the Court of Appeals decision
below.
Hamdan objects to this theory on both
constitutional and statutory grounds.
Principal among his

constitutional arguments is that the
Governments preferred reading raises
grave questions about Congress authority
to impinge upon this Courts appellate
jurisdiction, particularly in habeas cases.
Support for this argument is drawn from
Ex parte Yerger, 75 U.S. 85, 8 Wall. 85, 19
L. Ed. 332 (1869), in which, having
explained that the denial to this court of
appellate jurisdiction to consider an
original writ of habeas corpus would
greatly weaken the efficacy of the writ,
id., at 102-103, 19 L. Ed. 332, we held that
Congress would not be presumed to have
effected such denial absent an unmistakably
clear statement to the contrary. See id., at
104-105, 19 L. Ed. 332; see also Felker v.
Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135
L. Ed. 2d 827 (1996); Durousseau v. United
States, 10 U.S. 307, 6 Cranch 307, 314, 3
L. Ed. 232 (1810) (opinion for the Court
by Marshall, C. J.) (The appellate powers
of this court are not created by statute but
are given by the constitution); United
States v. Klein, 80 U.S. 128, 13 Wall. 128,
20 L. Ed. 519, 7 Ct. Cl. 240 (1872). Cf. Ex
parte McCardle, 74 U.S. 506, 7 Wall. 506,
514, 19 L. Ed. 264 (1869) (holding that
Congress had validly foreclosed one avenue
of appellate review where its repeal of
habeas jurisdiction, reproduced in the
[**2764]
The penultimate subsections of 1005 emphasize that the provision does not confer any constitutional right on an alien
detained as an enemy combatant outside the United States and that the United States does not, for purposes of 1005, include
Guantanamo Bay. 1005(f)-(g).
Angelo Tannuzzo
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margin, 4 could not have been a plainer

instance of positive exception). Hamdan
also suggests [***744] that, if the
Governments reading is correct, Congress
has unconstitutionally suspended the writ
of habeas corpus.
We find it unnecessary to reach either of
these arguments. Ordinary principles of
statutory construction suffice to rebut
[*576] the Governments theory--at least
insofar as this case, which was pending at
the time the DTA was enacted, is
concerned.
The Government acknowledges that only
paragraphs (2) and (3) of subsection (e) are
expressly made applicable to pending cases,
see 1005(h)(2), 119 Stat. 2743-2744, but
argues that the omission of paragraph (1)
from the scope of that express statement is
of no moment. This is so, we are told,
because Congress failure to expressly
reserve federal courts jurisdiction over
pending cases erects a presumption against
jurisdiction, and that presumption is
rebutted by neither the text nor the
legislative history of the DTA.
LEdHN[4] [4] LEdHN[5A] [5A] The first
part of this argument is not entirely without
support in our precedents. We have in the
past applied intervening statutes
conferring or ousting jurisdiction, whether
or not jurisdiction lay when the underlying
conduct occurred or when the suit was

filed. Landgraf v. USI Film Products, 511
U.S. 244, 274, 114 S. Ct. 1483, 128 L. Ed.
2d 229 (1994) (citing Bruner v. United
States, 343 U.S. 112, 72 S. Ct. 581, 96 L.
Ed. 786 (1952); Hallowell v. Commons,
239 U.S. 506, 36 S. Ct. 202, 60 L. Ed. 409
(1916)); see Republic of Austria v. Altmann,
541 U.S. 677, 693, 124 S. Ct. 2240, 159 L.
Ed. 2d 1 (2004). But the presumption
that these cases have applied is more
accurately viewed as the nonapplication of
another presumption--viz., the presumption
against retroactivity--in certain limited
circumstances. 5 HN5 If a statutory
provision [**2765]
would operate
retroactively as applied to cases pending
at the time the provision was enacted, then
our traditional presumption teaches that it
does not govern absent clear congressional
intent favoring such a result. Landgraf,
511 U.S., at 280, 114 S. Ct. 1483, 128 L.
Ed. 2d 229. We have explained, however,
that, unlike other intervening changes in
the law, a [*577] jurisdiction-conferring
or jurisdiction-stripping statute usually
takes away no substantive right but simply
changes the tribunal that is to hear the
case. Hallowell, 239 U.S., at 508, 36 S.
Ct. 202, 60 L. Ed. 409. If that is truly all
the statute does, no retroactivity problem
arises because the change in the law does
not impair rights a party possessed when
he acted, increase a partys liability for
And be it further enacted, That so much of the act approved February 5, 1867, entitled An act to amend an act to establish
the judicial courts of the United States, approved September 24, 1789, as authorized an appeal from the judgment of the Circuit
Court to the Supreme Court of the United States, or the exercise of any such jurisdiction by said Supreme Court, on appeals which
have been, or may hereafter be taken, be, and the same is hereby repealed. 74 U.S., at 508, 7 Wall., at 508, 19 L. Ed. 264.
5
See Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 951, 117 S. Ct. 1871, 138 L. Ed. 2d 135 (1997) (The
fact that courts often apply newly enacted jurisdiction-allocating statutes to pending cases merely evidences certain limited
circumstances failing to meet the conditions for our generally applicable presumption against retroactivity . . .).
Angelo Tannuzzo
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past conduct, or impose new duties with

respect to transactions already completed.
Landgraf, 511 U.S., at 280, 114 S. Ct.
1483, 128 L. Ed. 2d 229. 6 And if a new
rule has no retroactive effect, the
presumption against [***745] retroactivity
will not prevent its application to a case
that was already pending when the new
rule was enacted.
HN6 LEdHN[5B] [5B] LEdHN[6] [6]
That does not mean, however, that all
jurisdiction-stripping provisions--or even
all such provisions that truly lack
retroactive effect--must apply to cases
pending at the time of their enactment. 7
[N]ormal rules of construction, including
a contextual reading of the statutory
language, may dictate otherwise. Lindh v.
Murphy, 521 U.S. 320, 326, 117 S. Ct.
2059, 138 L. Ed. 2d 481 [*578] (1997). 8 A
familiar principle of statutory construction,
relevant both in Lindh and here, is that a
negative inference may be drawn from the
exclusion of language from one statutory
provision that is included in other
provisions of the same statute. See id., at

330, 117 S. Ct. 2059, 138 L. Ed. 2d 481;
see also, e.g., Russello v. United States,
464 U.S. 16, 23, 104 S. Ct. 296, 78 L. Ed.
2d 17 (1983) ([W]here Congress includes
particular language in one section of a
statute but omits it in another section of the
same Act, it is generally presumed [**2766]
that Congress acts intentionally and
purposely in the disparate inclusion or
exclusion). The Court in Lindh relied on
this reasoning to conclude that certain
limitations on the availability of habeas
relief imposed by AEDPA applied only to
cases filed after that statutes effective
date. Congress failure to identify the
temporal reach of those limitations, which
governed noncapital cases, stood in contrast
to its express command in the same
legislation that new rules governing habeas
petitions in capital cases apply to cases
pending on or after the date of enactment.
107(c), 110 Stat. 1226; see Lindh, 521
U.S., at 329-330, 117 S. Ct. 2059, 138 L.
Ed. 2d 481. That contrast, combined with
the fact that the amendments at issue
Cf. Ibid. (Statutes merely addressing which court shall have jurisdiction to entertain a particular cause of action can fairly be
said merely to regulate the secondary conduct of litigation and not the underlying primary conduct of the parties (emphasis in
original)).
7
In his insistence to the contrary, Justice Scalia reads too much into Bruner v. United States, 343 U.S. 112, 72 S. Ct. 581, 96 L.
Ed. 786 (1952), Hallowell v. Commons, 239 U.S. 506, 36 S. Ct. 202, 60 L. Ed. 409 (1916), and Insurance Co. v. Ritchie, 72 U.S.
541, 5 Wall. 541, 18 L. Ed. 540 (1867). See post, at 656-658, 165 L. Ed. 2d, at 793-794 (dissenting opinion). None of those cases
says that the absence of an express provision reserving jurisdiction over pending cases trumps or renders irrelevant any other
indications of congressional intent. Indeed, Bruner itself relied on such other indications including a negative inference drawn from
the statutory text, cf. infra, at 578, 165 L. Ed. 2d, at 745 to support its conclusion that jurisdiction was not available. The Court
observed that (1) Congress had been put on notice by prior lower court cases addressing the Tucker Act that it ought to specifically
reserve jurisdiction over pending cases, see 343 U.S., at 115, 72 S. Ct. 581, 96 L. Ed. 786, and (2) in contrast to the congressional
silence concerning reservation of jurisdiction, reservation had been made of any rights or liabilities existing at the effective date
of the Act repealed by another provision of the Act, id., at 115, n 7.
8
The question in Lindh was whether new limitations on the availability of habeas relief imposed by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, applied to habeas actions pending on the date of AEDPAs
enactment. We held that they did not. At the outset, we rejected the States argument that, in the absence of a clear congressional
statement to the contrary, a procedural rule must apply to pending cases. 521 U.S., at 326, 117 S. Ct. 2059, 138 L. Ed. 2d 481.
Angelo Tannuzzo
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affect[ed] substantive entitlement to

relief, id., at 327, 117 S. Ct. 2059, 138 L.
Ed. 2d 481, warranted drawing a negative
inference.
LEdHN[3B] [3B] A like inference follows
a fortiori from Lindh in this case. If . . .
Congress was reasonably concerned to
ensure that [ 1005(e)(2) and (3)] be
applied to pending cases, it should have
been just as concerned about [ 1005(e)(1)],
unless it had the different [***746] intent
that the latter [section] not be applied to
the general run of pending cases. Id., at
329, 117 S. Ct. 2059, 138 L. Ed. 2d 481. If
anything, the evidence of deliberate
omission is stronger here than it [*579]
was in Lindh. In Lindh, the provisions to
be contrasted had been drafted separately
but were later joined together and . . .
considered simultaneously when the
language raising the implication was
inserted. Id., at 330, 117 S. Ct. 2059, 138
L. Ed. 2d 481. We observed that Congress
tandem review and approval of the two
sets of provisions strengthened the
presumption that the relevant omission
was deliberate. Id., at 331, 117 S. Ct. 2059,
138 L. Ed. 2d 481; see also Field v. Mans,
516 U.S. 59, 75, 116 S. Ct. 437, 133 L. Ed.
2d 351 (1995) (The more apparently

deliberate the contrast, the stronger the
inference, as applied, for example, to
contrasting statutory sections originally
enacted simultaneously in relevant
respects). Here, Congress not only
considered the respective temporal reaches
of paragraphs (1), (2), and (3) of subsection
(e) together at every stage, but omitted
paragraph (1) from its directive that
paragraphs (2) and (3) apply to pending
cases only after having rejected earlier
proposed versions of the statute that would
have included what is now paragraph (1)
within the scope of that directive. Compare
DTA 1005(h)(2), 119 Stat. 2743-2744,
with 151 Cong. Rec. S12655 (Nov. 10,
2005) (S. Amdt. 2515); see id., at
S14257-S14258
(Dec.
21,
2005)
(discussing similar language proposed in
both the House and the Senate). 9 Congress
rejection of the very language that would
have [*580] achieved the result the
Government urges here weighs heavily
against the Governments interpretation.
See Doe v. Chao, 540 U.S. 614, 621-623,
124 S. Ct. 1204, 157 L. Ed. 2d 1122
(2004). 10
That paragraph (1), along with paragraphs (2) and (3), is to take effect on the date of the enactment, DTA 1005(h)(1), 119
Stat. 2743, is not dispositive; a statement that a statute will become effective on a certain date does not even arguably suggest that
it has any application to conduct that occurred at an earlier date. INS v. St. Cyr, 533 U.S. 289, 317, 121 S. Ct. 2271, 150 L. Ed.
2d 347 (2001) (quoting Landgraf v. USI Film Products, 511 U.S. 244, 257, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994)). Certainly,
the effective date provision cannot bear the weight Justice Scalia would place on it. See post, at 659, 165 L. Ed. 2d, at 794-795,
and n 1. Congress deemed that provision insufficient, standing alone, to render subsections (e)(2) and (e)(3) applicable to pending
cases; hence its adoption of subsection (h)(2). Justice Scalia seeks to avoid reducing subsection (h)(2) to a mere redundancy--a
consequence he seems to acknowledge must otherwise follow from his interpretation--by speculating that Congress had special
reasons, not also relevant to subsection (e)(1), to worry that subsections (e)(2) and (e)(3) would be ruled inapplicable to pending
cases. As we explain infra, at 582-583, 165 L. Ed. 2d, at 748, and n 12, that attempt fails.
10
We note that statements made by Senators preceding passage of the Act lend further support to what the text of the DTA and its
drafting history already make plain. Senator Levin, one of the sponsors of the final bill, objected to earlier versions of the Acts
effective date provision that would have made subsection (e)(1) applicable to pending cases. See, e.g., 151 Cong. Rec. S12667
Angelo Tannuzzo
Page 34 of 136
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[**2767] The Government subsection (e)(1) and the procedural

nonetheless offers [***747] two reasons character of subsections (e)(2) and (e)(3).
[*581]
why, in its view, no negative inference may

be drawn in favor of jurisdiction. First, it
asserts that Lindh is inapposite because
Section 1005(e)(1) and (h)(1) remove
jurisdiction, while Section 1005(e)(2), (3)
and (h)(2) create an exclusive review
mechanism and define the nature of that
review. Reply Brief in Support of
Respondents Motion to Dismiss 4.
Because the provisions being contrasted
address wholly distinct subject matters,
Martin v. Hadix, 527 U.S. 343, 356, 119 S.
Ct. 1998, 144 L. Ed. 2d 347 (1999), the
Government argues, Congress different
treatment of them is of no significance.
In truth, all three provisions govern

jurisdiction over detainees claims;
subsection (e)(1) addresses jurisdiction in
habeas cases and other actions relating to
any aspect of the detention, while
subsections (e)(2) and (e)(3) vest exclusive,
11
but limited, jurisdiction in the [**2768]
Court of Appeals for the District of
Columbia Circuit to review final
decision[s] of CSRTs and military
commissions.
That subsection (e)(1) strips jurisdiction

while subsections (e)(2) and (e)(3) restore
it in limited form is hardly a distinction
upon which a negative inference must
founder. Justice Scalia, in arguing to the
LEdHN[3C] [3C] This argument must fail contrary, maintains that Congress [*582]
because it rests on a false distinction had ample reason to provide explicitly
between the jurisdictional nature of for application of subsections (e)(2) and
(Nov. 10, 2005) (amendment proposed by Sen. Graham that would have rendered what is now subsection (e)(1) applicable to any
application or other action that is pending on or after the date of the enactment of this Act). Senator Levin urged adoption of an
alternative amendment that would apply only to new habeas cases filed after the date of enactment. Id., at S12802 (Nov. 15,
2005). That alternative amendment became the text of subsection (h)(2). (In light of the extensive discussion of the DTAs effect on
pending cases prior to passage of the Act, see, e.g., id., at S12664 (Nov. 10, 2005); id., at S12755 (Nov. 14, 2005); id., at
S12799-S12802 (Nov. 15, 2005); id., at S14245, S14252-S14253, S14257-S14258, S14274-S14275 (Dec. 21, 2005), it cannot be
said that the changes to subsection (h)(2) were inconsequential. Cf. post, at 668, 165 L. Ed. 2d, at 800 (Scalia, J., dissenting).)
While statements attributed to the final bills two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levins
contention that the final version of the Act preserved jurisdiction over pending habeas cases, see 151 Cong. Rec. S14263-S14264
(Dec. 21, 2005), those statements appear to have been inserted into the Congressional Record after the Senate debate. See Reply
Brief for Petitioner 5, n 6; see also 151 Cong. Rec. S14260 (statement of Sen. Kyl) (I would like to say a few words about the
now-completed National Defense Authorization Act for fiscal year 2006 (emphasis added)). All statements made during the debate
itself support Senator Levins understanding that the final text of the DTA would not render subsection (e)(1) applicable to pending
cases. See, e.g., id., at S14245, S14252-S14253, S14274-S14275 (Dec. 21, 2005). The statements that Justice Scalia cites as
evidence to the contrary construe subsection (e)(3) to strip this Court of jurisdiction, see post, at 666, n 4, 165 L. Ed. 2d, at 799
(dissenting opinion) (quoting 151 Cong. Rec. S12796 (Nov. 15, 2005) (statement of Sen. Specter))--a construction that the
Government has expressly disavowed in this litigation, see n 11, infra. The inapposite November 14, 2005, statement of Senator
Graham, which Justice Scalia cites as evidence of that Senators assumption that pending cases are covered, post, at 666, 165 L.
Ed. 2d, at 799, and n 3 (citing 151 Cong. Rec. S12756 (Nov. 14, 2005)), follows directly after the uncontradicted statement of his
co-sponsor, Senator Levin, assuring members of the Senate that the amendment will not strip the courts of jurisdiction over
[pending] case, id., at S12755.
11
LEdHN[3D] [3D] The District of Columbia Circuits jurisdiction, while exclusive in one sense, would not bar this Courts
review on appeal from a decision under the DTA. See Reply Brief in Support of Respondents Motion to Dismiss 16-17, n 12
(While the DTA does not expressly call for Supreme Court review of the District of Columbia Circuits decisions, Sections
1005(e)(2) and (3) . . . do not remove this Courts jurisdiction over such decisions under 28 U.S.C. 1254(1)).
Angelo Tannuzzo
Page 35 of 136
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(e)(3) to pending cases because

jurisdiction-ousting provisions like
subsection (e)(1) have been treated
differently under our retroactivity
jurisprudence than jurisdiction-creating
ones like subsections (e)(2) and (e)(3).
Post, at 662, 165 L. Ed. 2d, at 796-797
(dissenting opinion); see also Reply Brief
in Support of Respondents Motion to
Dismiss 5-6. That theory is insupportable.
Assuming, arguendo, that subsections
(e)(2) and (e)(3) confer new jurisdiction
(in the D. C. Circuit) where there was none
before, [***748] post, at 662, 165 L. Ed.
2d, at 799 (emphasis in original); but see
Rasul v. Bush, 542 U.S. 466, 124 S. Ct.
2686, 159 L. Ed. 2d 548 (2004), and that
our precedents can be read to strongly
indicat[e] that jurisdiction-creating statutes
raise special retroactivity concerns not also
raised by jurisdiction-stripping statutes,
post, at 662, 165 L. Ed. 2d, at 799, 12
subsections (e)(2) and (e)(3) confer
jurisdiction in a manner that cannot
conceivably give rise to retroactivity
questions under our precedents. The
provisions impose no additional liability or
obligation on any private party or even on
the United States, unless one counts the
burden of litigating an appeal--a burden

not a single one of our cases suggests
triggers retroactivity concerns. 13 [*583]
Moreover, it strains credulity to suggest
that the desire to reinforce the application
of subsections (e)(2) and (e)(3) to pending
cases drove Congress to exclude subsection
(e)(1) from 1005(h)(2).
The Governments second objection is that
applying subsections (e)(2) and (e)(3) but
not (e)(1) to pending cases produces an
absurd result because it grants (albeit only
temporarily) dual jurisdiction over
detainees cases in circumstances where
the statute plainly envisions that the D.C.
Circuit will have exclusive and immediate
jurisdiction over such cases. Reply Brief in
Support of Respondents Motion to Dismiss
7. But the premise here is faulty;
subsections (e)(2) and (e)(3) grant
jurisdiction only over actions to determine
the validity of any final decision [**2769]
of a CSRT or commission. Because
Hamdan, at least, is not contesting any
final decision of a CSRT or military
commission, his action does not fall within
12
This assertion is itself highly questionable. The cases that Justice Scalia cites to support his distinction are Republic of Austria
v. Altmann, 541 U.S. 677, 124 S. Ct. 2240, 159 L. Ed. 2d 1 (2004), and Hughes Aircraft Co. v. United States ex rel. Schumer, 520
U.S. 939, 117 S. Ct. 1871, 138 L. Ed. 2d 135 (1997). See post, at 662, 165 L. Ed. 2d, at 799. While the Court in both of those
cases recognized that statutes creating jurisdiction may have retroactive effect if they affect substantive rights, see Altmann, 541
U.S., at 695, and n. 15, 124 S. Ct. 2240, 159 L. Ed. 2d 1; Hughes Aircraft, 520 U.S., at 951, 117 S. Ct. 1871, 138 L. Ed. 2d 135,
we have applied the same analysis to statutes that have jurisdiction-stripping effect, see Lindh v. Murphy, 521 U.S. 320, 327-328,
117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997); id., at 342-343, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (Rehnquist, C. J., dissenting)
(construing AEDPAs amendments as ousting jurisdiction).
13
See Landgraf, 511 U.S., at 271, n. 25, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (observing that the great majority of our decisions
relying upon the antiretroactivity presumption have involved intervening statutes burdening private parties, though we have
applied the presumption in cases involving new monetary obligations that fell only on the government (emphasis added)); see also
Altmann, 541 U.S., at 728-729, 124 S. Ct. 2240, 159 L. Ed. 2d 1 (Kennedy, J., dissenting) (explaining that if retroactivity concerns
do not arise when a new monetary obligation is imposed on the United States it is because Congress, by virtue of authoring the
legislation, is itself fully capable of protecting the Federal Government from having its rights degraded by retroactive laws).
Angelo Tannuzzo
Page 36 of 136
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the scope of subsection (e)(2) or (e)(3). trump (a thing it has never been, see n 7,
There is, then, no absurdity. 14
supra) and ignoring both the rest of
1005s text and its drafting history can one
LEdHN[3E] [3E] The Governments more conclude as much. Congress here expressly
general suggestion that Congress can have provided that subsections (e)(2) and (e)(3)
had no good reason for preserving habeas applied to pending cases. It chose not to so
jurisdiction over cases that had been provide--after having been presented with
brought by detainees prior to enactment of the option--for subsection (e)(1). The
the DTA not only is belied by the legislative omission is an integral part of the statutory
history, [***749] see n 10, supra, but is scheme that muddies whatever plain
otherwise without merit. There is nothing meaning may be discerned from blinkered
absurd about a scheme under which study of subsection (e)(1) alone. The
pending habeas actions--particularly those, dissents speculation about what Congress
like this one, that challenge the very might have intended by the omission not
legitimacy of the tribunals whose only is counterfactual, cf. n 10, supra
judgments Congress would like to have (recounting legislative history), but rests
reviewed--are preserved, and more routine on both a misconstruction of the DTA and
challenges to final decisions rendered an erroneous view of our precedents, see
[*584] by those tribunals are carefully
supra, at 582-583, 165 L. Ed. 2d, at
channeled to a particular court and through 747-748, and n 12.
a particular lens of review.
Finally, we cannot leave unaddressed For these reasons, we deny the
15
Justice Scalias contentions that the Governments motion to dismiss.
meaning of 1005(e)(1) is entirely clear, III
post, at 660, 165 L. Ed. 2d, at 795-796,
and that the plain import of a statute LEdHN[7A] [7A] Relying on our decision
repealing jurisdiction is to eliminate the in Councilman, 420 U.S. 738, 95 S. Ct.
power to consider and render judgment--in 1300, 43 L. Ed. 2d 591, the Government
an already pending case no less than in a argues that, even if we have statutory
case yet to be filed, post, at 657, 165 L. jurisdiction, [*585] we should apply the
Ed. 2d, at 793 (emphasis in original). Only judge-made rule that civilian courts should
by treating the Bruner rule as an inflexible await the final outcome of on-going
14
There may be habeas cases that were pending in the lower courts at the time the DTA was enacted that do qualify as challenges
to final decision[s] within the meaning of subsection (e)(2) or (e)(3). We express no view about whether the DTA would require
transfer of such an action to the D.C. Circuit.
15
Because we conclude that 1005(e)(1) does not strip federal courts jurisdiction over cases pending on the date of the DTAs
enactment, we do not decide whether, if it were otherwise, this Court would nonetheless retain jurisdiction to hear Hamdans appeal.
Cf. supra, at 575, 165 L. Ed. 2d, at 743. Nor do we decide the manner in which the canon of constitutional avoidance should affect
subsequent interpretation of the DTA. See, e.g., St. Cyr, 533 U.S., at 300, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (a construction of a
statute that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional
questions).
Angelo Tannuzzo
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military proceedings before entertaining

an attack on those proceedings. Brief for
Respondents 12. Like the District Court
and the Court of Appeals before us, we
reject this argument.
In Councilman, an army officer on active
duty was referred to a court-martial
[**2770]
for trial on charges that he
violated the UCMJ by selling, transferring,
and possessing marijuana. 420 U.S., at
739-740, 95 S. Ct. 1300, 43 L. Ed. 2d 591.
Objecting that the alleged offenses were
not service connected, id., at 740, 95 S.
Ct. 1300, 43 L. Ed. 2d 591, the officer filed
suit in Federal District Court to enjoin the
proceedings. He neither questioned the
lawfulness of courts-martial or their
procedures nor disputed that, as a
serviceman, he was subject to court-martial
jurisdiction. His sole argument was that
the subject matter of his case did not fall
within the scope of court-martial authority.
[***750] See id., at 741, 759, 95 S. Ct.
1300, 43 L. Ed. 2d 591. The District Court
granted his request for injunctive relief,
and the Court of Appeals affirmed.
LEdHN[8A] [8A] We granted certiorari
and reversed. Id., at 761, 95 S. Ct. 1300, 43
L. Ed. 2d 591. We did not reach the merits
of whether the marijuana charges were
sufficiently service connected to place
them within the subject-matter jurisdiction
of a court-martial. Instead, we concluded

that, HN7 as a matter of comity, federal
courts should normally abstain from
intervening in pending court-martial
proceedings against members of the Armed
Forces, 16 and [*586] further that there
was nothing in the particular circumstances
of the officers case to displace that general
rule. See id., at 740, 758, 95 S. Ct. 1300,
43 L. Ed. 2d 591.
HN8 LEdHN[9] [9] Councilman identifies
two considerations of comity that together
favor abstention pending completion of
ongoing court-martial proceedings against
service personnel. See New v. Cohen, 327
U.S. App. D.C. 147, 129 F.3d 639, 643
(CADC 1997); see also 415 F.3d at 36-37
(discussing Councilman and New). First,
military discipline and, therefore, the
efficient operation of the Armed Forces are
best served if the military justice system
acts without regular interference from
civilian courts. See Councilman, 420 U.S.,
at 752, 95 S. Ct. 1300, 43 L. Ed. 2d 591.
Second, federal courts should respect the
balance that Congress struck between
military preparedness and fairness to
individual service members when it created
an integrated system of military courts
and review procedures, a critical element
of which is the Court of Military Appeals
consisting of civilian judges completely
removed from all military influence or
16
LEdHN[8B] [8B] Councilman distinguished service personnel from civilians, whose challenges to ongoing military proceedings
are cognizable in federal court. See, e.g., United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S. Ct. 1, 100 L. Ed. 8 (1955). As we
explained in Councilman, abstention is not appropriate in cases in which individuals raise substantial arguments denying the right
of the military to try them at all, and in which the legal challenge turn[s] on the status of the persons as to whom the military
asserted its power. 420 U.S., at 759, 95 S. Ct. 1300, 43 L. Ed. 2d 591 (quoting Noyd v. Bond, 395 U.S. 683, 696, n. 8, 89 S. Ct.
1876, 23 L. Ed. 2d 631 (1969)). In other words, we do not apply Councilman abstention when there is a substantial question
whether a military tribunal has personal jurisdiction over the defendant. Because we conclude that abstention is inappropriate for a
more basic reason, we need not consider whether the jurisdictional exception recognized in Councilman applies here.
Angelo Tannuzzo
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persuasion . . . . Id., at 758, 95 S. Ct.

1300, 43 L. Ed. 2d 591 (quoting H. R. Rep.
No. 491, 81st Cong., 1st Sess., 7 (1949)).
Just as abstention in the face of ongoing
state criminal proceedings is justified by
our expectation that state courts will
enforce federal rights, so abstention in the
face of ongoing court-martial proceedings
is justified by our expectation that the
military court system established by
Congress--with its substantial procedural
protections and provision for appellate
review
by
independent
civilian
judges--will vindicate servicemens
constitutional rights, 420 U.S., at 758, 95
S. Ct. 1300, 43 L. Ed. 2d 591. See id., at
755-758, 95 S. Ct. 1300, 43 L. Ed. 2d 591.
17
judges of the Court of Military Appeals

(now called the United States Court of
Appeals for the Armed Forces, see 924,
108 Stat. 2831). Instead, under Dept. of
Defense Military Commission Order No. 1
(Commission Order No. 1),App. C to Brief
for Petitioner 46a, which was issued by the
Secretary of Defense on March 21, 2002,
and amended most recently on August 31,
2005, and which governs the procedures
for Hamdans commission, any conviction
would be reviewed by a panel consisting
of three military officers designated by the
Secretary. Id. 6(H)(4). Commission Order
No. 1 provides that appeal of a review
panels decision may be had only to the
Secretar himself, 6(H)(5), and then,
finally, to the President, 6(H)(6). 18
[*587] LEdHN[7B] [7B] [**2771] The

same cannot be said here; [***751] We have no doubt that the various
indeed, neither of the comity considerations

identified in Councilman weighs in favor
of abstention in this case. First, Hamdan is
not a member of our Nations Armed
Forces, so concerns about military
discipline do not apply. Second, the tribunal
convened to try Hamdan is not part of the
integrated system of military courts,
complete with independent review panels,
that Congress has established. Unlike the
officer in Councilman Hamdan has no
right to appeal any conviction to the civilian
individuals assigned review power under

Commission Order No. 1 would strive to
act impartially and ensure that Hamdan
receive all protections to which he is
entitled. Nonetheless, these review bodies
clearly lack the structural insulation from
military influence that characterizes the
Court of Appeals for the [*588] Armed
Forces, and thus bear insufficient
conceptual similarity to state courts to
17
See also Noyd, 395 U.S., at 694-696, 89 S. Ct. 1876, 23 L. Ed. 2d 631 (noting that the Court of Military Appeals consisted of
disinterested civilian judges, and concluding that there was no reason for the Court to address an Air Force Captains argument
that he was entitled to remain free from confinement pending appeal of his conviction by court-martial when the highest military
court stands ready to consider petitioners arguments). Cf. Parisi v. Davidson, 405 U.S. 34, 41-43, 92 S. Ct. 815, 31 L. Ed. 2d 17
(1972) (Under accepted principles of comity, the court should stay its hand only if the relief the petitioner seeks . . . would also be
available to him with reasonable promptness and certainty through the machinery of the military judicial system in its processing of
the court-martial charge).
18
If he chooses, the President may delegate this ultimate decisionmaking authority to the Secretary of Defense. See 6(H)(6).
Angelo Tannuzzo
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warrant invocation of abstention principles. of action was warranted, we explained,

19
[i]n view of the public importance of the
questions [***752] raised by [the cases]
In sum, neither of the two comity and of the duty which rests on the courts,
considerations underlying our decision to in time of war as well as in time of peace,
abstain in Councilman applies to the to preserve unimpaired the constitutional
circumstances of this case. Instead, this safeguards of civil liberty, and because in
Courts decision in Quirin is the most our opinion the public interest required
relevant precedent. In Quirin, eight German that we consider and decide those questions
saboteurs were captured upon arrival by without any avoidable delay. Ibid.
submarine in New York and Florida. 317
U.S., at 21, 63 S. Ct. 2, 87 L. Ed. 3. The As the Court of Appeals here recognized,
President convened a military commission Quirin provides a compelling historical
to try seven of the saboteurs, who then precedent for the power of civilian courts
filed habeas corpus petitions in the United to entertain challenges that seek to interrupt
[*589]
processes of military
States District Court for the District of the
Columbia challenging their trial by commissions. 415 F.3d at 36. 20 The
commission. We granted the saboteurs circumstances of this case, like those in
petition for certiorari to the Court of Quirin, simply do not implicate the
Appeals before judgment. See id., at 19, obligations of comity that, under
circumstances,
justify
63 S. Ct. 2, 87 L. Ed. 3. Far from [**2772] appropriate
abstaining pending the conclusion of abstention. Quackenbush v. Allstate Ins.
military proceedings, which were ongoing, Co., 517 U.S. 706, 733, 116 S. Ct. 1712,
we convened a special Term to hear the 135 L. Ed. 2d 1 (1996) (Kennedy, J.,
case and expedited our review. That course concurring).
19
Justice Scalia chides us for failing to include the D.C. Circuits review powers under the DTA in our description of the review
mechanism erected by Commission Order No. 1. See post, at 675, 165 L. Ed. 2d, at 805. Whether or not the limited review
permitted under the DTA may be treated as akin to the plenary review exercised by the Court of Appeals for the Armed Forces,
petitioner here is not afforded a right to such review. See infra, at 616, 165 L. Ed. 2d, at 768; 1005(e)(3), 119 Stat. 2743.
20
Having correctly declined to abstain from addressing Hamdans challenge to the lawfulness of the military commission
convened to try him, the Court of Appeals suggested that Councilman abstention nonetheless applied to bar its consideration of one
of Hamdans arguments--namely, that his commission violated Article 3 of the Third Geneva Convention, 6 U. S. T. 3316, 3318.
See Part VI, infra. Although the Court of Appeals rejected the Article 3 argument on the merits, it also stated that, because the
challenge was not jurisdictional, it did not fall within the exception that Schlesinger v. Councilman, 420 U.S. 738, 95 S. Ct. 1300,
43 L. Ed. 2d 591 (1975), recognized for defendants who raise substantial arguments that a military tribunal lacks personal
jurisdiction over them. See 415 F.3d at 42. In reaching this conclusion, the Court of Appeals conflated two distinct inquiries: (1)
whether Hamdan has raised a substantial argument that the military commission lacks authority to try him; and, more fundamentally,
(2) whether the comity considerations underlying Councilman apply to trigger the abstention principle in the first place. As the
Court of Appeals acknowledged at the beginning of its opinion, the first question warrants consideration only if the answer to the
second is yes. See 415 F.3d at 36-37. Since, as the Court of Appeals properly concluded, the answer to the second question is in
fact no, there is no need to consider any exception. At any rate, it appears that the exception would apply here. As discussed in Part
VI, infra, Hamdan raises a substantial argument that, because the military commission that has been convened to try him is not a
regularly constituted court under the Geneva Conventions, it is ultra vires and thus lacks jurisdiction over him. Brief for
Petitioner 5.
Angelo Tannuzzo
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Finally, the Government has identified no

other important countervailing interest
that would permit federal courts to depart
from their general duty to exercise the
jurisdiction that is conferred upon them by
Congress. Id., at 716, 116 S. Ct. 1712, 135
L. Ed. 2d 1 (majority opinion). To the
contrary, Hamdan and the Government
both have a compelling interest in knowing
in advance whether Hamdan may be tried
by a military commission that arguably is
without any basis in law and operates
[*590] free from many of the procedural
rules prescribed by Congress for
courts-martial--rules intended to safeguard
the accused and ensure the reliability of
any conviction. While we certainly do not
foreclose the possibility that abstention
may be appropriate in some cases seeking
review of ongoing military commission
proceedings (such as military commissions
convened on the battlefield), the foregoing
discussion makes clear that, under our
precedent, abstention is not justified here.
We therefore proceed to consider the merits
of Hamdans challenge.
IV
the commission as such was inaugurated

in 1847. Id., at 832; G. Davis, A Treatise
on the Military Law of the United States
308 (rev. 3d ed. 1915) (hereinafter Davis).
As commander of occupied Mexican
territory, and having available to him no
other tribunal, General Winfield Scott that
year ordered the establishment of both
military commissions to try ordinary
crimes committed in the occupied territory
and a council of war to try offenses
against the law of war. Winthrop 832
(emphasis in original).
When the exigencies of war next gave rise
to a need for use of military commissions,
during the Civil War, the dual system
favored by General Scott was not adopted.
Instead, a single tribunal often took
jurisdiction over ordinary crimes, war
crimes, and breaches of military orders
alike. As further discussed below, each
aspect of that seemingly broad jurisdiction
was in fact supported by a separate military
exigency. Generally, though, the need for
military commissions [*591] during this
period--as during the Mexican War--was
driven largely by the then very limited
jurisdiction of courts-martial: The
occasion for the military commission arises
principally from the fact that the
jurisdiction of the court-martial proper, in
our law, is restricted by statute almost
exclusively to members of the military
force and to certain specific offences
defined in a written code. Id., at 831
(emphasis in original).
The military commission, a tribunal neither

mentioned in the Constitution nor [**2773]
created by statute, was born of military
necessity. See W. Winthrop, Military Law
and Precedents 831 (rev. 2d ed. 1920)
(hereinafter
Winthrop).
Though
foreshadowed [***753] in some respects
by earlier tribunals like the Board of
General Officers that General Washington
convened to try British Major John Andre HN9 LEdHN[10] [10] Exigency alone, of
for spying during the Revolutionary War, course, will not justify the establishment
Angelo Tannuzzo
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and use of penal tribunals not contemplated

by Article I, 8, and Article III, 1, of the
Constitution unless some other part of that
document authorizes a response to the felt
need. See Ex parte Milligan, 71 U.S. 2, 4
Wall. 2, 121, 18 L. Ed. 281 (1866)
(Certainly no part of the judicial power of
the country was conferred on [military
commissions]); Ex parte Vallandigham,
68 U.S. 243, 1 Wall. 243, 251, 17 L. Ed.
589 (1864); see also Quirin, 317 U.S., at
25, 63 S. Ct. 2, 87 L. Ed. 3 (Congress and
the President, like the courts, possess no
power not derived from the Constitution).
And that authority, if it exists, can derive
only from the powers granted jointly to the
President and Congress in time of war. See
id., at 26-29, 63 S. Ct. 2, 87 L. Ed. 3; In re
Yamashita, 327 U.S. 1, 11, 66 S. Ct. 340,
90 L. Ed. 499 (1946).
HN10 The Constitution makes the
President the Commander in Chief of the
Armed Forces, Art. II, 2, cl. 1, but vests
in Congress the powers to declare War . .
. and make Rules concerning Captures on
Land and Water, Art. I, 8, cl. 11, to
raise and support Armies, id., cl. 12, to
define and punish . . . Offences against
the Law of Nations, id., cl. 10, and To
make Rules for the Government and
Regulation of the land and naval Forces,
id., cl. 14. The interplay between these
powers was described by Chief Justice
Chase in the seminal case of Ex parte
Milligan:
HN11 The power to make the

necessary laws is in Congress; the
power to execute in the President.
Both
powers
imply
many
subordinate and auxiliary powers.
Each includes all authorities essential
to its due exercise. But neither can
the President, in war more than in
[*592] peace, intrude upon the
proper authority of Congress, nor
Congress upon the proper authority
of the President. . . . Congress cannot
direct the conduct of campaigns, nor
can [***754] the President, or any
commander under him, without the
sanction of Congress, [**2774]
institute tribunals for the trial and
punishment of offences, either of
soldiers or civilians, unless in cases
of a controlling necessity, which
justifies what it compels, or at least
insures acts of indemnity from the
justice of the legislature. 71 U.S. 2,
139-140, 4 Wall., at 139-140, 18 L.
Ed. 281. 21
Whether Chief Justice Chase was correct
in suggesting that the President may
constitutionally
convene
military
commissions without the sanction of
Congress in cases of controlling
necessity is a question this Court has not
answered definitively, and need not answer
today. For we held in Quirin that Congress
had, through Article of War 15, sanctioned
the use of military commissions in such
circumstances. 317 U.S., at 28, 63 S. Ct. 2,
21
See also Winthrop 831 ([I]n general, it is those provisions of the Constitution which empower Congress to declare war and
raise armies, and which, in authorizing the initiation of war, authorize the employment of all necessary and proper agencies for its
due prosecution, from which this tribunal derives its original sanction (emphasis in original)).
Angelo Tannuzzo
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87 L. Ed. 3 (By the Articles of War, and

especially Article 15, Congress has
explicitly provided, so far as it may
constitutionally do so, that military
tribunals shall have jurisdiction to try
offenders or offenses against the law of
war in appropriate cases). Article 21 of
the UCMJ, the language of which is
substantially identical to the old Article 15
and was preserved by Congress after World
War II, 22 reads as follows: HN12
Jurisdiction
of
courts-martial not exclusive.
The provisions of this code
conferring
jurisdiction
upon
courts-martial shall not be construed
as depriving military commissions,
provost courts, or other military
tribunals of concurrent jurisdiction
in respect of offenders or offenses
that by statute or by the law of war
may be tried by such military
commissions, provost courts, or
other military tribunals. 64 Stat.
115.
[*593]
LEdHN[11A] [11A] We have no occasion

to
revisit
Quirins
controversial
characterization of Article of War 15 as
congressional authorization for military
commissions. Cf. Brief for Legal Scholars
and Historians as Amici Curiae 12-15.
Contrary to the Governments assertion,

however, even Quirin did not view the
authorization as a sweeping mandate for
the President to invoke military
commissions when he deems them
necessary. Brief for Respondents 17.
Rather, HN13 the Quirin Court recognized
that Congress had simply preserved what
power, under the Constitution and the
common law of war, the President had had
before 1916 to convene military
commissions--with the express condition
that the President and those under his
command comply with the law of war. See
317 U.S., at 28-29, 63 S. Ct. 2, 87 L. Ed. 3.
23
That much is evidenced [***755] by the
Courts inquiry, following its conclusion
that Congress had authorized military
commissions, into whether the law of war
had indeed been complied with in that
case. See ibid.
LEdHN[12] [12] The Government would
have us dispense with the inquiry that the
Quirin [**2775] Court undertook and find
in either the AUMF or the DTA specific,
overriding authorization for the very
commission that has been convened to try
Hamdan. HN14 Neither of these
congressional Acts, however, expands the
[*594] Presidents authority to convene
military commissions. First, while we
assume that the AUMF activated the
22
Article 15 was first adopted as part of the Articles of War in 1916. See Act of Aug. 29, 1916, ch. 418, 3, Art. 15, 39 Stat.
652. When the Articles of War were codified and reenacted as the UCMJ in 1950, Congress determined to retain Article 15 because
it had been construed by the Supreme Court (Ex Parte Quirin, 317 U.S. 1, [63 S. Ct. 2, 87 L. Ed. 3] (1942)). S. Rep. No. 486,
81st Cong., 1st Sess., 13 (1949).
23
LEdHN[11B] [11B] Whether or not the President has independent power, absent congressional authorization, to convene
military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his
powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417
(1952) (Jackson, J., concurring). The Government does not argue otherwise.
Angelo Tannuzzo
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Presidents war powers, see Hamdi v.

Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633,
159 L. Ed. 2d 578 (2004) (plurality
opinion), and that those powers include the
in appropriate circumstances, see id., at
518, 124 S. Ct. 2633, 159 L. Ed. 2d 578;
Quirin, 317 U.S., at 28-29, 63 S. Ct. 2, 87
L. Ed. 3; see also Yamashita, 327 U.S., at
11, 66 S. Ct. 340, 90 L. Ed. 499, there is
nothing in the text or legislative history of
the AUMF even hinting that Congress
intended to expand or alter the
authorization set forth in Article 21 of the
UCMJ. Cf. Yerger, 8 Wall., at 105, 105, 19
L. Ed. 332 (Repeals by implication are
not favored). 24
Likewise, the DTA cannot be read to
authorize this commission. Although the
DTA, unlike either Article 21 or the AUMF,
was enacted after the President had
convened Hamdans commission, it
contains no language authorizing that
tribunal or any other at Guantanamo Bay.
The DTA obviously recognize[s] the
existence of the Guantanamo Bay
commissions in the weakest sense, Brief
for Respondents 15, because it references
some of the military orders governing
them and creates limited judicial review of
their final decision[s], DTA 1005(e)(3),
119 Stat. 2743. But the statute also
pointedly reserves judgment on whether
the Constitution and laws of the United
States are applicable in reviewing such

decisions and whether, if they are, the
standards and procedures used to try
Hamdan and other detainees actually
violate the Constitution and laws. Ibid.
HN15 Together, the UCMJ, the AUMF,
and the DTA at most acknowledge a general
Presidential authority to convene military
[*595]
commissions in circumstances
where justified under the Constitution and
laws, including the law of war. Absent a
more specific congressional authorization,
the task of this Court is, as it was in Quirin,
to decide whether Hamdans military
commission is so justified. It is to that
inquiry we now turn.
V
The common law governing military
commissions may be gleaned from past
practice and what sparse legal precedent
exists. Commissions historically have been
used in three [***756] situations. See
Bradley & Goldsmith, Congressional
Authorization and the War on Terrorism,
118 Harv. L. Rev. 2047, 2132-2133 (2005);
Winthrop 831-846; Hearings on H. R.
2498 before the Subcommittee of the House
Committee on Armed Services, 81st Cong.,
1st Sess., 975 (1949). First, they have
substituted for civilian courts at times and
in places where martial law has been
declared. Their use in these circumstances
has raised constitutional questions, see
24
On this point, it is noteworthy that the Court in Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. 3 (1942), looked beyond
Congress declaration of war and accompanying authorization for use of force during World War II, and relied instead on Article of
War 15 to find that Congress had authorized the use of military commissions in some circumstances. See id., at 26-29, 63 S. Ct. 2,
87 L. Ed. 3. Justice Thomas assertion that we commit error in reading Article 21 of the UCMJ to place limitations upon the
Presidents use of military commissions, see post, at 682, 165 L. Ed. 2d, at 809 (dissenting opinion), ignores the reasoning in
Quirin.
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Duncan v. Kahanamoku, 327 U.S. 304, 66

S. Ct. 606, 90 L. Ed. 688 (1946); Milligan
4 Wall., at 121-122, 18 L. Ed. 281, but is
well recognized. 25 [**2776] See Winthrop
822, 836-839. Second, commissions have
been established to try civilians as part of
a temporary military government over
occupied enemy territory or territory
regained from an [*596] enemy where
civilian government cannot and does not
function. Duncan, 327 U.S., at 314, 66 S.
Ct. 606, 90 L. Ed. 688 ; see Milligan 4
Wall., at 141-142, 18 L. Ed. 281 (Chase, C.
J., concurring in judgment) (distinguishing
martial law proper from military
government in occupied territory).
Illustrative of this second kind of
commission is the one that was established,
with jurisdiction to apply the German
Criminal Code, in occupied Germany
following the end of World War II. See
Madsen v. Kinsella, 343 U.S. 341, 356, 72
S. Ct. 699, 96 L. Ed. 988 (1952). 26
The third type of commission, convened as

an incident to the conduct of war when
there is a need to seize and subject to
disciplinary measures those enemies who
in their attempt to thwart or impede our
military effort have violated the law of
war, Quirin, 317 U.S., at 28-29, 63 S. Ct.
2, 87 L. Ed. 3, has been described as
utterly different from the other two.
Bickers, Military Commissions are
Constitutionally Sound: A Response to
Professors Katyal and Tribe, 34 Tex. Tech.
L. Rev. 899, 902 (2002-2003). 27 Not only
is its jurisdiction limited to offenses
[***757] cognizable during time of war,
but its role is primarily a factfinding one--to
determine, typically on the battlefield
[*597] itself, whether the defendant has
violated the law of war. The last time the
U.S. Armed Forces used the law-of-war
military commission was during World
War II. In Quirin, this Court sanctioned
President Roosevelts use of such a tribunal
to try Nazi saboteurs captured on American
25
The justification for, and limitations on, these commissions were summarized in Milligan: If, in foreign invasion or civil war,
the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active
military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to
preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the
laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the
courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and
unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. 4 Wall., at 127, 18 L. Ed. 281 (emphasis
in original).
26
The limitations on these occupied territory or military government commissions are tailored to the tribunals purpose and the
exigencies that necessitate their use. They may be employed pending the establishment of civil government, Madsen, 343 U.S., at
354-355, 72 S. Ct. 699, 96 L. Ed. 988, which may in some cases extend beyond the cessation of hostilities, id., at 348, 72 S. Ct.
699, 96 L. Ed. 988.
27
So much may not be evident on cold review of the Civil War trials often cited as precedent for this kind of tribunal because the
commissions established during that conflict operated as both martial law or military government tribunals and law-of-war
commissions. Hence, military commanders began the practice [during the Civil War] of using the same name, the same rules, and
often, the same tribunals to try both ordinary crimes and war crimes. Bickers, 34 Tex. Tech. L. Rev., at 908. For the first time,
accused horse thieves and alleged saboteurs found themselves subject to trial by the same military commission. Id., at 909. The
Civil War precedents must therefore be considered with caution; as we recognized in Quirin, 317 U.S., at 29, 63 S. Ct. 2, 87 L. Ed.
3, and as further discussed below, commissions convened during time of war but under neither martial law nor military government
may try only offenses against the law of war.
Angelo Tannuzzo
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soil during the War. 317 U.S. 1, 63 S. Ct. 2,

87 L. Ed. 3. And in Yamashita, we held that
a military commission had jurisdiction to
try a Japanese commander for failing to
prevent troops under his command from
committing atrocities in the Philippines.
327 U.S. 1, 66 S. Ct. 340, 90 L. Ed. 499.
Quirin is the model the
Government invokes most frequently to
defend the commission convened to try
Hamdan. That is both appropriate and
unsurprising. Since Guantanamo Bay is
neither enemy-occupied territory nor under
martial law, the law-of-war commission is
the only model available. At the same
time, no more robust model of executive
power exists; Quirin represents the
high-water mark of military power to try
enemy combatants for war crimes.
[**2777]
The classic treatise penned by Colonel

William Winthrop, whom we have called
the Blackstone of Military Law, Reid v.
Covert, 354 U.S. 1, 19, n. 38, 77 S. Ct.
1222, 1 L. Ed. 2d 1148 (1957) (plurality
opinion), describes at least four
preconditions for exercise of jurisdiction
by a tribunal of the type convened to try
Hamdan. First, [a] military commission,
(except where otherwise authorized by
statute), can legally assume jurisdiction
only of offences committed within the
field of the command of the convening
commander. Winthrop 836. The field

ofthe command in these circumstances
means the theatre of war. Ibid. Second,
the offense charged must have been
committed within the period of the war.
28
Id., at 837. No jurisdiction exists to try
offenses committed either before or after
the war. Ibid. Third, a military commission
not established pursuant to martial law or
an occupation may try [*598] only
[i]ndividuals of the enemys army who
have been guilty of illegitimate warfare or
other offences in violation of the laws of
war and members of ones own army
who, in time of war, become chargeable
with crimes or offences not cognizable, or
triable, by the criminal courts or under the
Articles of war. Id., at 838. Finally, a
law-of-war commission has jurisdiction to
try only two kinds of offense: Violations
of the laws and usages of war cognizable
by military tribunals only, and [b]reaches
of military orders or regulations for which
offenders are not legally triable by
court-martial under the Articles of war.
Id., at 839. 29
All parties agree that Colonel Winthrops
treatise accurately describes the common
law governing military
[***758]
commissions, and that the jurisdictional
limitations he identifies were incorporated
in Article of War 15 and, later, Article 21 of
the UCMJ. It also is undisputed that
28
If the commission is established pursuant to martial law or military government, its jurisdiction extends to offenses committed
within the exercise of military government or martial law. Winthrop 837.
29
Winthrop adds as a fifth, albeit not-always-complied-with, criterion that the trial must be had within the theatre of war . . .;
that, if held elsewhere, and where the civil courts are open and available, the proceedings and sentence will be coram non judice.
Id., at 836. The Government does not assert that Guantanamo Bay is a theater of war, but instead suggests that neither Washington,
D. C., in 1942 nor the Philippines in 1945 qualified as a war zone either. Brief for Respondents 27; cf. Quirin, 317 U.S. 1, 63 S.
Ct. 2, 87 L. Ed. 3; In re Yamashita, 327 U.S. 1, 66 S. Ct. 340, 90 L. Ed. 499 (1946).
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extending over a number of years, from

1996 to November 2001. 30 All but two
months of that more than 5-year-long
[**2778] period preceded the attacks of
[*599]
September 11, 2001, and the
enactment of the AUMF--the Act of
Congress on which the Government relies
for exercise of its war powers and thus for
its authority to convene military
commissions. 31 Neither the purported
agreement with [*600] Usama bin Laden
The charge against Hamdan, described in and others to commit war crimes, nor a
detail in Part I, supra, alleges a conspiracy [***759] single overt act, is alleged to
Hamdans commission lacks jurisdiction
to try him unless the charge properly
set[s] forth, not only the details of the act
charged, but the circumstances conferring
jurisdiction. Id., at 842 (emphasis in
original). The question is whether the
preconditions designed to ensure that a
military necessity exists to justify the use
of this extraordinary tribunal have been
satisfied here.
30
The elements of this conspiracy charge have been defined not by Congress but by the President. See Military Commission
Instruction No. 2, 32 CFR 11.6 (2005).
31
Justice Thomas would treat Usama bin Ladens 1996 declaration of jihad against Americans as the inception of the war. See
post, at 683-688, 165 L. Ed. 2d, at 810-812 (dissenting opinion). But even the Government does not go so far; although the United
States had for some time prior to the attacks of September 11, 2001, been aggressively pursuing al Qaeda, neither in the charging
document nor in submissions before this Court has the Government asserted that the Presidents war powers were activated prior to
September 11, 2001. Cf. Brief for Respondents 25 (describing the events of September 11, 2001, as an act of war that triggered a
right to deploy military forces abroad to defend the United States by combating al Qaeda). Justice Thomas further argument that
the AUMF is backward looking and therefore authorizes trial by military commission of crimes that occurred prior to the
inception of war is insupportable. See post, at 658, n 3, 165 L. Ed. 2d, at 811. If nothing else, Article 21 of the UCMJ requires that
the President comply with the law of war in his use of military commissions. As explained in the text, the law of war permits trial
only of offenses committed within the period of the war. Winthrop 837; see also Quirin, 317 U.S., at 28-29, 63 S. Ct. 2, 87 L. Ed.
3 (observing that law-of-war military commissions may be used to try those enemies who in their attempt to thwart or impede our
military effort have violated the law of war (emphasis added)). The sources that Justice Thomas relies on to suggest otherwise
simply do not support his position. Colonel Greens short exegesis on military commissions cites Howland for the proposition that
[o]ffenses committed before a formal declaration of war or before the declaration of martial law may be tried by military
commission. The Military Commission, 42 Am. J. Intl L. 832, 848 (1948) (emphasis added) (cited post, at 686, 165 L. Ed. 2d, at
811-812). Assuming that to be true, nothing in our analysis turns on the admitted absence of either a formal declaration of war or a
declaration of martial law. Our focus instead is on the September 11, 2001, attacks that the Government characterizes as the relevant
act[s] of war, and on the measure that authorized the Presidents deployment of military force--the AUMF. Because we do not
question the Governments position that the war commenced with the events of September 11, 2001, the Prize Cases, 2 Black 635,
17 L. Ed. 459 (1863) (cited post, at 679, 684, 685, and 687, 165 L. Ed. 2d, at 807, 810, 811, and 812 (Thomas, J., dissenting)), are
not germane to the analysis. Finally, Justice Thomas assertion that Julius Otto Kuehns trial by military commission for conspiring
with Japanese officials to betray the United States Fleet to the Imperial Japanese Government prior to its attack on Pearl Harbor
stands as authoritative precedent for Hamdans trial by commission, post, at 686, 165 L. Ed. 2d, at 812, misses the mark in three
critical respects. First, Kuehn was tried for federal espionage crimes under what were then 50 U.S.C. 31, 32, and 34, not with
common-law violations of the law of war. See Hearings before the Joint Committee on the Investigation of the Pearl Harbor Attack,
79th Cong., 1st Sess., pt. 30, pp 3067-3069 (1946). Second, he was tried by martial law commission (a kind of commission Justice
Thomas acknowledges is not relevant to the analysis here, and whose jurisdiction extends to offenses committed within the exercise
of . . . martial law, Winthrop 837, see n 28, supra, ), not a commission established exclusively to try violations of the law of war,
see Winthrop 837. Third, the martial law commissions established to try crimes in Hawaii were ultimately declared illegal by this
Court. See Duncan v. Kahanamoku, 327 U.S. 304, 324, 66 S. Ct. 606, 90 L. Ed. 688 (1946) (The phrase martial law as employed
in [the Hawaiian Organic Act], while intended to authorize the military to act vigorously for the maintenance of an orderly civil
government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the
supplanting of courts by military tribunals).
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have occurred in a theater of war or on any

specified date after September 11, 2001.
None of the overt acts that Hamdan is
alleged to have committed violates the law
of war.
340, 90 L. Ed. 499 (Neither congressional

action nor the military orders constituting
the commission authorized it to place
petitioner on trial unless the charge
proffered against him is of a violation of
32
These facts alone cast doubt on the legality the law of war).
of the charge and, hence, the commission;
[*601] There is no suggestion that
[**2779] as Winthrop makes plain, the
offense alleged must have been committed Congress has, in exercise of its
both in a theater of war and during, not constitutional [***760] authority to define
before, the relevant conflict. But the and punish . . . Offences against the Law of
deficiencies in the time and place Nations, U.S. Const., Art. I, 8, cl. 10,
allegations also underscore--indeed are [*602] positively identified conspiracy
33
As we explained in
symptomatic of--the most serious defect of as a war crime.
this charge: The offense it alleges is not Quirin, that is not necessarily [**2780]
triable by law-of-war military commission. fatal to the Governments claim of authority
See Yamashita, 327 U.S., at 13, 66 S. Ct. to try the alleged offense by military
32
Justice Thomas adopts the remarkable view, not advocated by the Government, that the charging document in this case actually
includes more than one charge: Conspiracy and several other ill-defined crimes, like joining an organization that has a criminal
purpose, [b]eing a guerrilla, and aiding the enemy. See post, at 693-697, 165 L. Ed. 2d, at 813-818, and n 9. There are
innumerable problems with this approach. First, the crimes Justice Thomas identifies were not actually charged. It is one thing to
observe that charges before a military commission need not be stated with the precision of a common law indictment, post, at
692, n 7, 165 L. Ed. 2d, at 815-816, (citation omitted); it is quite another to say that a crime not charged may nonetheless be read
into an indictment. Second, the Government plainly had available to it the tools and the time it needed to charge petitioner with the
various crimes Justice Thomas refers to, if it believed they were supported by the allegations. As Justice Thomas himself observes,
see post, at 697, 165 L. Ed. 2d, at 818, the crime of aiding the enemy may, in circumstances where the accused owes allegiance to
the party whose enemy he is alleged to have aided, be triable by military commission pursuant to Article 104 of the UCMJ, 10
U.S.C. 904. Indeed, the Government has charged detainees under this provision when it has seen fit to do so. See Brief for David
Hicks as Amicus Curiae 7. Third, the cases Justice Thomas relies on to show that Hamdan may be guilty of violations of the law of
war not actually charged do not support his argument. Justice Thomas begins by blurring the distinction between those categories of
offender who may be tried by military commission (e.g., jayhawkers and the like) with the offenses that may be so tried. Even
when it comes to being a guerrilla, cf. post, at 695, n 9, 165 L. Ed. 2d, at 817, (citation omitted), a label alone does not render a
person susceptible to execution or other criminal punishment; the charge of being a guerrilla invariably is accompanied by the
allegation that the defendant took up arms as such. This is because, as explained by Judge Advocate General Holt in a decision
upholding the charge of being a guerrilla as one recognized by the universal usage of the times, the charge is simply shorthand
(akin to being a spy) for the perpetration of a succession of similar acts of violence. Record Books of the Judge Advocate
General Office, R. 3, 590. The sources cited by Justice Thomas confirm as much. See cases cited post, at 694-695, n 9,165 L. Ed.
2d, at 817. Likewise, the suggestion that the Nuremberg precedents support Hamdans conviction for the (uncharged) crime of
joining a criminal organization must fail. Cf. post, at 695-697, 165 L. Ed. 2d, at 817-818. The convictions of certain high-level Nazi
officials for membership in a criminal organization were secured pursuant to specific provisions of the Charter of the International
Military Tribunal that permitted indictment of individual organization members following convictions of the organizations
themselves. See Arts. 9 and 10, in 1 Trial of the Major War Criminals Before the International Military Tribunal; Nuremberg, 14
November 1945-1 October 1946, p. 12 (1947). The initial plan to use organizations convictions as predicates for mass individual
trials ultimately was abandoned. See T. Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir 584-585, 638 (1992).
33
Cf. 10 U.S.C. 904 (making triable by military commission the crime of aiding the enemy); 906 (same for spying); War
Crimes Act of 1996, 18 U.S.C. 2441 (2000 ed. and Supp. III) (listing war crimes); Foreign Operations, Export Financing, and
Related Programs Appropriations Act, 1998, 583, 111 Stat. 2436 (same).
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commission; Congress, through Article 21

of the UCMJ, has incorporated by
reference the common law of war, which
may render triable by military commission
certain offenses not defined by statute. 317
U.S., at 30, 63 S. Ct. 2, 87 L. Ed. 3. When,
however, neither the elements of the offense
nor the range of permissible punishments
is defined by statute or treaty, the precedent
must be plain and unambiguous. To demand
any less would be to risk concentrating in
military hands a degree of adjudicative and
punitive power in excess of that
contemplated either by statute or by the
Constitution. Cf. Loving v. United States,
517 U.S. 748, 771, 116 S. Ct. 1737, 135 L.
Ed. 2d 36 (1996) (acknowledging that
Congress may not delegate the power to
make laws); Reid, 354 U.S., at 23-24, 77
S. Ct. 1222, 1 L. Ed. 2d 1148 (The
Founders envisioned the army as a
necessary institution, but one dangerous to
liberty if not confined within its essential
bounds); The Federalist No. 47, p 324 (J.
Cooke ed. 1961) (J. Madison) (The
accumulation of all powers legislative,
executive and judiciary in the same hands
. . . may justly be pronounced the very
definition of tyranny). 34
This high standard was met in
Quirin; the violation there alleged was, by
universal agreement and practice both in
this country and internationally, recognized
[*603]
as an offense against the law of war. 317

U.S., at 30, 63 S. Ct. 2, 87 L. Ed. 3; see id.,
at 35-36, 63 S. Ct. 2, 87 L. Ed. 3 (This
precept of the law of war has been so
recognized in practice both here and
abroad, and has so generally been accepted
as valid by authorities on international law
that we think it must be regarded as a rule
or principle of the law of war recognized
by this Government by its enactment of the
Fifteenth Article of War (footnote
omitted)). Although the picture arguably
was less clear in Yamashita, compare 327
U.S., at 16, 66 S. Ct. 340, 90 L. Ed. 499
(stating that the provisions [***761] of the
Fourth Hague Convention of 1907, 36
Stat. 2306, plainly required the defendant
to control the troops under his command),
with 327 U.S., at 35, 66 S. Ct. 340, 90 L.
Ed. 499 (Murphy, J., dissenting), the
disagreement between the majority and the
dissenters in that case concerned whether
the historic and textual evidence constituted
clear precedent --not whether clear
precedent was required to justify trial by
law-of-war military commission.
At a minimum, the Government must make
a substantial showing that the crime for
which it seeks to try a defendant by military
commission is acknowledged to be an
offense against the law of war. That burden
is far from satisfied here. The crime of
conspiracy has rarely if ever been tried
34
While the common law necessarily is evolutionary in nature, post, at 689, 165 L. Ed. 2d, at 814 (Thomas, J., dissenting),
even in jurisdictions where common-law crimes are still part of the penal framework, an act does not become a crime without its
foundations having been firmly established in precedent. See, e.g., Queen. v. Rimmington, [2006] 2 All E. R. 257, 275-279 (2005)
(House of Lords); id., at 279 (while some degree of vagueness is inevitable and development of the law is a recognized feature of
common law courts, . . . the law-making function of the courts must remain within reasonable limits); see also Rogers v.
Tennessee, 532 U.S. 451, 472-478, 121 S. Ct. 1693, 149 L. Ed. 2d 697 (2001) (Scalia, J., dissenting). The caution that must be
exercised in the incremental development of common-law crimes by the judiciary is, for the reasons explained in the text, all the
more critical when reviewing developments that stem from military action.
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as such in this country by any law-of-war

military commission [*604] not exercising
some other form of jurisdiction, 35 [**2781]
and does not appear in either the Geneva
Conventions
or
the
Hague
Conventions--the major treaties on the law
of war. 36 Winthrop explains that under the
common
law
governing
military
commissions, it is not enough to intend to
violate the law of war and commit overt
acts in furtherance of that intention unless
the overt acts either are themselves offenses
against the law of war or constitute steps
sufficiently substantial to qualify as an
attempt. See Winthrop 841 ([T]he
jurisdiction of the military commission
should be restricted to cases of offence
consisting in overt acts, i.e. in unlawful
commissions or actual attempts to commit,
and not in intentions merely (emphasis in
original)).
The Government cites three sources that it
says show otherwise. First, it points out
that the Nazi saboteurs in Quirin were
charged with conspiracy. See Brief for
Respondents 27. Second, it observes that
Winthrop at one [*605] point in his
treatise identifies conspiracy as an offense
prosecuted by military commissions.
Ibid. (citing Winthrop 839, and n 5).

Finally, it notes that another military
historian, Charles Roscoe Howland, lists
conspiracy to violate the laws of war by
destroying life or property in aid of the
enemy as an offense that was tried as a
violation of the law of war during the Civil
War. Brief for Respondents 27-28 (citing
C. Howland, Digest of Opinions of the
Judge Advocates General of the Army
1071 (1912) (hereinafter Howland)). On
close analysis, however, these sources at
best lend [***762] little support to the
Governments position and at worst
undermine it. By any measure, they fail to
satisfy the high standard of clarity required
to justify the use of a military commission.
That the defendants in Quirin were charged
with conspiracy is not persuasive, since the
Court declined to address whether the
offense actually qualified as a violation of
the law of war--let alone one triable by
military commission. The Quirin
defendants were charged with the following
offenses:
[I.] Violation of the law of war.
[II.] Violation of Article 81 of the
Articles of War, defining the offense
35
The 19th-century trial of the Lincoln conspirators, even if properly classified as a trial by law-of-war commission, cf. W.
Rehnquist, All the Laws But One: Civil Liberties in Wartime 165-167 (1998) (analyzing the conspiracy charges in light of ordinary
criminal law principles at the time), is at best an equivocal exception. Although the charge against the defendants in that case
accused them of combining, confederating, and conspiring together to murder the President, they were also charged (as we read
the indictment, cf. post, at 699-700, n 12, 165 L. Ed. 2d, at 821-822 (Thomas, J., dissenting)), with maliciously, unlawfully, and
traitorously murdering the said Abraham Lincoln. H. R. Doc. No. 314, 55th Cong., 3rd Sess., 696 (1899). Moreover, the Attorney
General who wrote the opinion defending the trial by military commission treated the charge as if it alleged the substantive offense
of assassination. See 11 Op. Atty. Gen. 297 (1865) (analyzing the propriety of trying by military commission the offence of having
assassinated the President); see also Mudd v. Caldera, 134 F. Supp. 2d 138, 140 (DC 2001).
36
By contrast, the Geneva Conventions do extend liability for substantive war crimes to those who orde[r] their commission,
see Third Geneva Convention, Art. 129, 6 U. S. T., at 3418, and this Court has read the Fourth Hague Convention of 1907 to
impose command responsibility on military commanders for acts of their subordinates, see Yamashita, 327 U.S., at 15-16, 66 S.
Ct. 340, 90 L. Ed. 499.
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operations and therefore had not violated

the law of war, the Court responded that
they had actually passed our military and
naval lines and defenses or went behind
[III.] Violation of Article 82,
those lines, in civilian dress and with
defining the offense of spying.
hostile purpose. Id., at 38, 63 S. Ct. 2, 87
[IV.] Conspiracy to commit the
L. Ed. 3. The offense was complete when
offenses alleged in charges [I, II,
with that purpose they entered--or, having
and III]. 317 U.S., at 23, 63 S. Ct.
so entered, they remained upon--our
2, 87 L. Ed. 3.
territory in time of war without uniform or
other appropriate means of identification.
The Government, defending its charge,
Ibid.
argued that the conspiracy alleged
constitute[d] an additional violation of the Turning to the other charges alleged, the
law of war. Id., at 15, 63 S. Ct. 2, 87 L. Court explained that [s]ince the first
Ed. 3. The saboteurs [**2782] disagreed; specification of Charge I sets forth a
they maintained that [t]he charge of violation of the law of war, we have no
conspiracy can not stand if the other occasion to pass on the adequacy of the
charges fall. Id., at 8, 63 S. Ct. 2, 87 L. second specification of Charge I, or to
Ed. 3. The Court, however, declined to construe the 81st and 82nd Articles of War
resolve the dispute. It concluded, first, that for the purpose of ascertaining whether the
the [*606] specification supporting Charge specifications under Charges II and III
allege violations of those Articles or
I adequately alleged a violation of the law
whether if so construed they are
of war that was not merely colorable or
constitutional. Id., at 46, 63 S. Ct. 2, 87 L.
without foundation. Id., at 36, 63 S. Ct. 2,
Ed. 3. No mention was made at all of
87 L. Ed. 3. The facts the Court deemed
Charge IV--the conspiracy charge.
sufficient for this purpose were that the
defendants, admitted enemy combatants, If anything, Quirin supports Hamdans
entered upon U.S. territory in time of war argument that conspiracy is not a violation
without uniform for the purpose of of the law of war. Not only did the Court
destroying property used or useful in pointedly omit any discussion of the
prosecuting the war. That act was a conspiracy charge, but its analysis of
hostile and warlike one. Id., at 36, 37, 63 Charge I placed special [***763] emphasis
S. Ct. 2, 87 L. Ed. 3. The Court was careful on the completion of an offense; it took
in its decision to identify an overt, seriously the saboteurs argument that there
complete act. Responding to the can be no violation of a law of war--at least
argument that the saboteurs had not not one triable by military commission-actually committed or attempted to commit without the [*607] actual commission of
any act of depredation or entered the or attempt to commit a hostile and warlike
theatre or zone of active military act. Id., at 37-38, 63 S. Ct. 2, 87 L. Ed. 3.
of relieving or attempting to relieve,
or corresponding with or giving
intelligence to, the enemy.
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That limitation makes eminent sense when

one considers the necessity from whence
this kind of military commission grew:
The need to dispense swift justice, often in
the form of execution, to illegal belligerents
captured on the battlefield. See S. Rep. No.
130, 64th Cong., 1st Sess., 40 (1916)
(testimony of Brig. Gen. Enoch H.
Crowder) (observing that Article of War 15
preserves the power of the military
commander in the field in time of war to
use military commissions (emphasis
added)). The same urgency would not have
been felt vis-a-vis enemies who had done
little more than agree to violate the laws of
war. Cf. 31 Op. Atty. Gen. 356, 357, 361
(1918) (opining that a German spy could
not be tried by military commission
because, having been apprehended before
entering any camp, fortification or other
military premises of the United States, he
had committed [his offenses] outside of
the field of military operations). The
Quirin Court acknowledged as much when
it described the Presidents authority to use
law-of-war military commissions as the
power to seize and subject to disciplinary
measures those enemies who in their
attempt to thwart or impede our military
effort have violated the law of war. 317
U.S., at 28-29, 63 S. Ct. 2, 87 L. Ed. 3
(emphasis added).
[**2783] Winthrop and Howland are only
war passed upon and punished by

military
commissions.
Howland
1070-1071. But while the records of cases
that Howland cites following his list of
offenses against the law of war support
inclusion of the other offenses mentioned,
they provide no support for the inclusion
of conspiracy as a violation of the law of
war. See id. at 1071. (citing Record Books
of the Judge Advocate General Office, R.
2, 144; R. 3, 401, 589, 649; R. 4, 320; R.
5, [*608] 36, 590; R. 6, 20; R. 7, 413; R.
8, 529; R. 9, 149, 202, 225, 481, 524, 535;
R. 10, 567; R. 11, 473, 513; R. 13, 125,
675; R. 16, 446; R. 21, 101, 280).
Winthrop, apparently recognizing as much,
excludes conspiracy of any kind from his
own list of offenses against the law of war.
See Winthrop 839-840.
Winthrop does, unsurprisingly, include
criminal conspiracies in his list of
[c]rimes and statutory offenses cognizable
by State or U.S. courts and triable by
martial law or military government
commission. See id., at 839. And, in a
footnote, he cites several Civil War
examples of conspiracies of this class, or
of the first and second classes combined.
Id., at 839, n 5 (emphasis added). The
Government relies on this footnote for its
contention that conspiracy was triable both
as an ordinary crime (a crime of the first
class) and, independently, as a war crime
(a crime of the second class). But the
footnote will not support the weight the
Government places on it.
superficially more helpful to the

Government. Howland, granted, lists
conspiracy by two or more to violate the
laws of war by destroying life or property
in aid of the enemy as one of over 20 As we have seen, the military commissions
offenses against the laws and usages of convened during the Civil War functioned
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at once as martial law or military

government tribunals and as law-of-war
commissions. See n 27, [***764] supra.
Accordingly, they regularly tried war
crimes and ordinary crimes together.
Indeed, as Howland observes, [n]ot
unfrequently the crime, as charged and
found, was a combination of the two
species of offenses. Howland 1071; see
also Davis 310, n 2; Winthrop 842. The
example he gives is murder in violation
of the laws of war. Howland 1071-1072.
Winthrops conspiracy of the first and
second classes combined is, like
Howlands example, best understood as a
species of compound offense of the type
tried by the hybrid military commissions
of the Civil War. It is not a stand-alone
offense against the law of war. Winthrop
confirms this understanding later in his
discussion, when he emphasizes that overt
acts constituting war crimes are the only
proper subject at least of those military
tribunals not convened to stand in for local
courts. Winthrop 841, and nn 22, 23 (citing
W. Finlason, Martial Law 130 (1867)
(emphasis in original)).
[*609] Justice Thomas cites as evidence
soldiers in the military service of the

United States . . . to the end that the armies
of the United States might be weakened
and impaired, in violation of the laws and
customs of war. Post, at 701, 165 L. Ed.
2d, at 820-821 (dissenting opinion)
(quoting H. R. Doc. No. 314, 55th Cong.,
3d Sess., 785 (1899); emphasis deleted).
As shown by the specification supporting
that charge, however, Wirz was alleged to
have personally committed a number of
atrocities against his victims, including
torture, injection of prisoners with poison,
and use of ferocious and bloodthirsty
dogs to seize, tear, mangle, and maim the
bodies and limbs of prisoners, many of
whom died as a [**2784] result. Id., at
789-790. Crucially, Judge Advocate
General Holt determined that one of Wirzs
alleged co-conspirators, R. B. Winder,
should not be tried by military commission
because there was as yet insufficient
evidence of his own personal involvement
in the atrocities: [I]n the case of R. B.
Winder, while the evidence at the trial of
Wirz was deemed by the court to implicate
him in the conspiracy against the lives of
all Federal prisoners in rebel hands, no
such specific overt acts of violation of the
laws of war are as yet fixed upon him as to
make it expedient to prefer formal charges
and bring him to trial. Id., at 783
(emphasis added). 37
that conspiracy is a recognized violation of

the law of war the Civil War indictment
against Henry Wirz, which charged the
defendant with [m]aliciously, willfully,
and traitorously . . . combining,
confederating, and conspiring [with others]
[*610] Finally, international sources
to injure the health and destroy the lives of confirm that the crime charged here is not
37
The other examples Justice Thomas offers are no more availing. The Civil War indictment against Robert Louden, cited post, at
702, 165 L. Ed. 2d, at 821, alleged a conspiracy, but not one in violation of the law of war. See War Dept., General Court Martial
Order No. 41, p 20 (1864). A separate charge of [t]ransgression of the laws and customs of war made no mention of conspiracy.
Id., at 17. The charge against Leger Grenfel and others for conspiring to release rebel prisoners held in Chicago only supports the
observation, made in the text, that the Civil War tribunals often charged hybrid crimes mixing elements of crimes ordinarily triable
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a recognized violation of the law of

[***765] war. 38 As observed above, see
supra, at 603-604, 165 L. Ed. 2d, at 761,
none of the major treaties governing the
law of war identifies conspiracy as a
violation thereof. And the only
conspiracy crimes that have been
recognized by international war crimes
tribunals (whose jurisdiction often extends
beyond war crimes proper to crimes against
humanity and crimes against the peace) are
conspiracy to commit genocide and
common plan to wage aggressive war,
which is a crime against the peace and
requires for its commission actual
participation in a concrete plan to wage
war. 1 Trial of the Major War Criminals
Before the International Military Tribunal:
Nuremberg, 14 November 1945-1 October
1946, p 225 (1947)(hereinafter Trial of
Major War Criminals). The International
Military Tribunal at Nuremberg, over the
prosecutions objections, pointedly refused
to recognize as a violation of the law of
war conspiracy to commit war crimes, see,
e.g., 22 id., at 469, 39 and convicted only

Hitlers most senior associates of
conspiracy to wage aggressive war, see S.
Pomorski, Conspiracy [*611] and Criminal
Organization, in the Nuremberg Trial and
International Law 213, 233-235 (G.
Ginsburgs & V. Kudriavtsev eds. 1990). As
one prominent figure from the Nuremberg
trials has explained, members of the
Tribunal objected to recognition of
conspiracy as a violation of the law of war
on the ground that [t]he Anglo-American
concept of conspiracy was not part of
European legal systems and arguably not
an element of [**2785] the internationally
recognized laws of war. T. Taylor,
Anatomy of the Nuremberg Trials: A
Personal Memoir 36 (1992); see also id., at
550 (observing that Francis Biddle, who as
Attorney General prosecuted the defendants
in Quirin, thought the French judge had
made a persuasive argument that
conspiracy in the truest sense is not known
to international law). 40
in civilian courts (like treason) and violations of the law of war. Judge Advocate General Holt, in recommending that Grenfels
death sentence be upheld (it was in fact commuted by Presidential decree, see H. R. Doc. No. 314, at 725), explained that the
accused united himself with traitors and malefactors for the overthrow of our Republic in the interest of slavery. Id., at 689.
38
The Court in Quirin assume[d] that there are acts regarded in other countries, or by some writers on international law, as
offenses against the law of war which would not be triable by military tribunal here, either because they are not recognized by our
courts as violations of the law of war or because they are of that class of offenses constitutionally triable only by a jury. 317 U.S.,
at 29, 63 S. Ct. 2, 87 L. Ed. 3. We need not test the validity of that assumption here because the international sources only
corroborate the domestic ones.
39
Accordingly, the Tribunal determined to disregard the charges . . . that the defendants conspired to commit War Crimes and
Crimes against Humanity. 22 Trial of Major War Criminals 469, see also ibid. ([T]he Charter does not define as a separate crime
any conspiracy except the one to commit acts of aggressive war).
40
See also 15 United Nations War Crimes Commissions, Law Reports of Trials of War Criminals 90-91 (1949) (observing that,
although a few individuals were charged with conspiracy under European domestic criminal codes following World War II, the
United States Military Tribunals established at that time did not recognis[e] as a separate offence conspiracy to commit war crimes
or crimes against humanity). The International Criminal Tribunal for the former Yugoslavia (ICTY), drawing on the Nuremberg
precedents, has adopted a joint criminal enterprise theory of liability, but that is a species of liability for the substantive offense
(akin to aiding and abetting), not a crime on its own. See Prosecutor v. Tadic, Judgment, Case No. IT-94-1-A (ICTY App. Chamber,
July 15, 1999); see also Prosecutor v. Milutinovic, Decision on Dragoljub Ojdanics Motion Challenging Jurisdiction--Joint Criminal
Angelo Tannuzzo
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In sum, the sources that the Government

and Justice Thomas rely upon to show that
conspiracy to violate the law of war is
itself a violation [***766] of the law of
war in fact demonstrate quite the opposite.
Far from making the requisite substantial
showing, the Government has failed even
to offer a merely colorable case for
inclusion of conspiracy among those
offenses cognizable by law-of-war military
commission. Cf. Quirin, 317 U.S., at 36,
63 S. Ct. 2, 87 L. Ed. 3. Because the charge
does not [*612] support the commissions
jurisdiction, the commission lacks authority
to try Hamdan.
The charges shortcomings are not merely
formal, but are indicative of a broader
inability on the Executives part here to
satisfy the most basic precondition--at least
in the absence of specific congressional
authorization--for establishment of military
commissions: military necessity. Hamdans
tribunal was appointed not by a military
commander in the field of battle, but by a
retired major general stationed away from
any active hostilities. Cf. Rasul v. Bush,
542 U.S., at 487, 124 S. Ct. 2686, 159 L.
Ed. 2d 548 (Kennedy, J., concurring in
judgment) (observing that Guantanamo
Bay is . . . far removed from any
hostilities). Hamdan is charged not with
an overt act for which he was caught
redhanded in a theater of war and which
military efficiency demands be tried

expeditiously, but with an agreement the
inception of which long predated the
attacks of September 11, 2001, and the
AUMF. That may well be a crime, 41 but it
is not an offense that by the law of war
may be tried by military commissio[n].
10 U.S.C. 821. None of the overt acts
alleged to have been committed in
furtherance of the agreement is itself a war
crime, or even necessarily occurred during
time of, or in a theater of, war. Any urgent
need for imposition or execution of
judgment is utterly belied by the record;
Hamdan was arrested in November 2001
and he was not charged until mid-2004.
These simply are not the circumstances in
which, by any [**2786] stretch of the
historical evidence or this Courts
precedents, a military commission
established by Executive Order under the
authority [*613] of Article 21 of the UCMJ
may lawfully try a person and subject him
to punishment.
VI
LEdHN[1B] [1B] LEdHN[2B] [2B]
Whether or not the Government has
charged Hamdan with an offense against
the law of war cognizable by military
commission, the commission lacks power
to proceed. HN16 The UCMJ conditions
the Presidents use of military commissions
on compliance not only with the American
Enterprise, Case No. IT-99-37-AR72, P 26 (ICTY App. Chamber, May 21, 2003) (stating that [c]riminal liability pursuant to a joint
criminal enterprise is not a liability for . . . conspiring to commit crimes).
41
Justice Thomas suggestion that our conclusion precludes the Government from bringing to justice those who conspire to
commit acts of terrorism is therefore wide of the mark. See post, at 686, n 3, 704-706, 165 L. Ed. 2d, at 811, n 3, 822-823. That
conspiracy is not a violation of the law of war triable by military commission does not mean the Government may not, for example,
prosecute by court-martial or in federal court those caught plotting terrorist atrocities like the bombing of the Khobar Towers.
Post, at 705, 165 L. Ed. 2d, at 823.
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common law of war, but also with the rest

of the UCMJ itself, insofar as applicable,
and with the rules and precepts of the law
of nations, Quirin, 317 U.S., at 28, 63 S.
Ct. 2, 87 L. Ed. 3 --including, inter alia,
the four Geneva Conventions signed in
1949. See Yamashita, 327 U.S., at 20-21,
23-24, 66 S. Ct. 340, 90 L. Ed. 499. The
procedures that the Government has
decreed will govern Hamdans trial by
commission violate these laws.
A
The commissions procedures are [***767]
set forth in Commission Order No. 1,
which was amended most recently on
August 31, 2005--after Hamdans trial had
already begun. Every commission
established pursuant to Commission Order
No. 1 must have a presiding officer and at
least three other members, all of whom
must be commissioned officers. 4(A)(1).
The presiding officers job is to rule on
questions of law and other evidentiary and
interlocutory issues; the other members
make findings and, if applicable, sentencing
decisions. 4(A)(5). The accused is entitled
to appointed military counsel and may hire
civilian counsel at his own expense so long
as such counsel is a U.S. citizen with
security clearance at the level SECRET or
higher. 4(C)(2)-(3).
The accused also is entitled to a copy of
the charge(s) against him, both in English
and his own language (if different), to a
presumption of innocence, and to certain
42
other rights typically afforded criminal

defendants in civilian courts and
courts-martial. See 5(A)-(P). These
rights [*614] are subject, however, to one
glaring condition: The accused and his
civilian counsel may be excluded from,
and precluded from ever learning what
evidence was presented during, any part of
the proceeding that either the Appointing
Authority or the presiding officer decides
to close. Grounds for such closure
include the protection of information
classified or classifiable . . .; information
protected by law or rule from unauthorized
disclosure; the physical safety of
participants in Commission proceedings,
including
prospective
witnesses;
intelligence and law enforcement sources,
methods, or activities; and other national
security interests. 6(B)(3). 42 Appointed
military defense counsel must be privy to
these closed sessions, but may, at the
presiding officers discretion, be forbidden
to reveal to his or her client what took
place therein. Ibid.
Another striking feature of the rules
governing Hamdans commission is that
they permit the admission of any evidence
that, in the opinion of the presiding officer,
would have probative value to a
reasonable person. 6(D)(1). Under this
test, not only is testimonial hearsay and
evidence obtained through coercion fully
admissible, but neither live testimony nor
witnesses written statements need be
[**2787] sworn. See 6(D)(2)(b), (3).
Moreover, the accused and his civilian
counsel may be denied access to evidence
The accused also may be excluded from the proceedings if he engages in disruptive conduct. 5(K).
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in the form of protected information

(which includes classified information as
well as information protected by law or
rule from unauthorized disclosure and
information concerning other national
security
interests,
6(B)(3),
6(D)(5)(a)(v)), so long as the presiding
officer concludes that the evidence is
probative under 6(D)(1) and that its
admission without the accuseds knowledge
would not result in the denial of a full and
fair trial. 6(D)(5)(b). 43 Finally, a
presiding officers determination [*615]
that evidence would [not] have probative
[***768] value to a reasonable person
may be overridden by a majority of the
other commission members. 6(D)(1).
Once all the evidence is in, the commission
members (not including the presiding
officer) must vote on the accuseds guilt. A
two-thirds vote will suffice for both a
verdict of guilty and for imposition of any
sentence not including death (the
imposition of which requires a unanimous
vote). 6(F). Any appeal is taken to a
three-member review panel composed of
military officers and designated by the
Secretary of Defense, only one member of
which need have experience as a judge.
6(H)(4). The review panel is directed to
disregard any variance from procedures
specified in this Order or elsewhere that
would not materially have affected the
outcome of the trial before the
Commission. Ibid. Once the panel makes
its recommendation to the Secretary of

Defense, the Secretary can either remand
for further proceedings or forward the
record to the President with his
recommendation as to final disposition.
6(H)(5). The President then, unless he has
delegated the task to the Secretary, makes
the final decision. 6(H)(6). He may
change the commissions findings or
sentence only in a manner favorable to the
accused. Ibid.
B
Hamdan raises both general and particular
objections to the procedures set forth in
Commission Order No. 1. His general
objection is that the procedures admitted
deviation
from
those
governing
courts-martial itself renders the commission
illegal. Chief among his particular
objections are that he may, under the
Commission Order, be convicted [*616]
based on evidence he has not seen or
heard, and that any evidence admitted
against him need not comply with the
admissibility or relevance rules typically
applicable in criminal trials and
court-martial proceedings.
LEdHN[13] [13] The Government objects
to our consideration of any procedural
challenge at this stage on the grounds that
(1) the abstention doctrine espoused in
Councilman, 420 U.S. 738, 95 S. Ct. 1300,
43 L. Ed. 2d 591, precludes
pre-enforcement review of procedural rules,
43
As the District Court observed, this section apparently permits reception of testimony from a confidential informant in
circumstances where Hamdan will not be permitted to hear the testimony, see the witnesss face, or learn his name. If the
government has information developed by interrogation of witnesses in Afghanistan or elsewhere, it can offer such evidence in
transcript form, or even as summaries of transcripts. 344 F. Supp. 2d 152, 168 (DC 2004).
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(2) Hamdan will be able to raise any such

challenge following a final decision under
the DTA, and (3) there is . . . no basis to
presume, before the trial has even
commenced, that the trial will not be
conducted in good faith and according to
law. Brief for Respondents 45-46, nn
20-21. The first of these contentions was
disposed of in Part III, supra, and neither
of the latter two is sound.
First, because Hamdan
apparently is not subject to the death
penalty (at least as matters now stand) and
may receive a sentence shorter than 10
years imprisonment, he has no automatic
right to review of the commissions final
decision 44 before a federal court under
the DTA. See 1005(e)(3), 119 Stat. 2743.
Second, contrary to the Governments
assertion, there is a basis to presume that
the procedures employed during Hamdans
trial will violate the law: The procedures
are described with particularity in
Commission Order No. 1, and
implementation of some of them has
already occurred. One of Hamdans
complaints is that he will be, and indeed
already has been, excluded [***769] from
his own trial. See Reply Brief for Petitioner
12; App. to Pet. for Cert. 45a. Under these
circumstances, review of the procedures in
advance of a final decision--the timing
of which is left entirely to the discretion of
[**2788]
44
the President under the DTA--is

appropriate. We turn, then, to consider the
merits of Hamdans procedural challenge.
[*617] C
In part because the difference between

military commissions and courts-martial
originally was a difference of jurisdiction
alone, and in part to protect against abuse
and ensure evenhandedness under the
pressures of war, the procedures governing
trials by military commission historically
have been the same as those governing
courts-martial. See, e.g., 1 The War of the
Rebellion 248 (2d series 1894) (General
Order 1 issued during the Civil War
required military commissions to be
constituted in a similar manner and their
proceedings be conducted according to the
same general rules as courts-martial in
order to prevent abuses which might
otherwise
arise).
Accounts
of
commentators from Winthrop through
General Crowder--who drafted Article of
War 15 and whose views have been deemed
authoritative by this Court, Madsen, 343
U.S., at 353, 72 S. Ct. 699, 96 L. Ed. 988
--confirm as much. 45 As recently as the
Korean and Vietnam wars, during which
use of military commissions was
contemplated but never made, the principle
of procedural parity was espoused as a
background assumption. See Paust,
Any decision of the commission is not final until the President renders it so. See Commission Order No. 1, 6(H)(6).
45
See Winthrop 835, and n 81 (military commissions are constituted and composed, and their proceedings are conducted,
similarly to general courts-martial); id., at 841-842; S. Rep. No. 130, 64th Cong., 1st Sess., 40 (1916) (testimony of Gen. Crowder)
(Both classes of courts have the same procedure); see also, e.g., H. Coppee, Field Manual of Courts-Martial p 105 (1863)
([Military] commissions are appointed by the same authorities as those which may order courts-martial. They are constituted in a
manner similar to such courts, and their proceedings are conducted in exactly the same way, as to form, examination of witnesses,
etc.).
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Antiterrorism Military Commissions: The procedures and rules of evidence

Courting Illegality, 23 Mich. J. Intl L. 1, employed during Yamashitas trial departed
so far from those used [***770] in
3-5 (2001-2002)
courts-martial that they generated an
There is a glaring historical exception to unusually long and vociferous critique from
this general rule. The procedures and two Members of this Court. See id., at
evidentiary rules used to try General 41-81, 66 S. Ct. 340, 90 L. Ed. 499
Yamashita near the end of World War II (Rutledge, J., joined by Murphy, J.,
deviated in significant respects from those dissenting). 46 Among the dissenters
then governing courts-martial. [*618] See primary concerns was that the commission
327 U.S. 1, 66 S. Ct. 340, 90 L. Ed. 499. had free rein to consider all evidence
The force of that precedent, however, has which in the commissions opinion would
been seriously undermined by post-World be of assistance in proving or disproving
War II developments.
the charge, without any of the usual modes
of authentication. Id., at 49, 66 S. Ct. 340,
Yamashita, from late 1944 until September 90 L. Ed. 499 (Opinion of Rutledge, J.).
1945, was Commanding General of the
Fourteenth Army Group of the Imperial [*619] The majority, however, did not
Japanese Army, which had exercised pass on the merits of Yamashitas
control over the Philippine Islands. On procedural challenges because it concluded
September 3, 1945, after American forces that his status disentitled him to any
regained control of the Philippines, protection under the Articles of War
Yamashita [**2789] surrendered. Three (specifically, those set forth in Article 38,
weeks later, he was charged with violations which would become Article 36 of the
of the law of war. A few weeks after that, UCMJ) or the Geneva Convention of 1929,
he was arraigned before a military 47 Stat. 2021 (1929 Geneva Convention).
commission convened in the Philippines. The Court explained that Yamashita was
neither a person made subject to the
He pleaded not guilty, and his trial lasted
Articles of War by Article 2 thereof, 327
for two months. On December 7, 1945,
U.S., at 20, 66 S. Ct. 340, 90 L. Ed. 499,
Yamashita was convicted and sentenced to
nor a protected prisoner of war being tried
hang. See id., at 5, 66 S. Ct. 340, 90 L. Ed.
for crimes committed during his detention,
499; id., at 31-34, 66 S. Ct. 340, 90 L. Ed.
id., at 21, 66 S. Ct. 340, 90 L. Ed. 499.
499 (Murphy, J., dissenting). This Court
upheld the denial of his petition for a writ At least partially in response to subsequent
of habeas corpus.
criticism of General Yamashitas trial, the
46
The dissenters views are summarized in the following passage: It is outside our basic scheme to condemn men without giving
reasonable opportunity for preparing defense; in capital or other serious crimes to convict on official documents . . . affidavits; . . .
documents or translations thereof; diaries . . ., photographs, motion picture films, and . . . newspapers or on hearsay, once, twice or
thrice removed, more particularly when the documentary evidence or some of it is prepared ex parte by the prosecuting authority
and includes not only opinion but conclusions of guilt. Nor in such cases do we deny the rights of confrontation of witnesses and
cross-examination. Yamashita, 327 U.S., at 44, 66 S. Ct. 340, 90 L. Ed. 499 (footnotes omitted).
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UCMJs codification of the Articles of War

after World War II expanded the category
of persons subject thereto to include
defendants in Yamashitas (and Hamdans)
position, 47 and the Third Geneva
Convention
of
1949
extended
prisoner-of-war protections to individuals
tried for crimes committed before their
capture. See 3 Intl Comm. of Red Cross,
48
Commentary:
[**2790]
Geneva
Convention Relative to the Treatment of
Prisoners of War 413 (J. Pictet gen.
ed.1960) (hereinafter GCIII Commentary)
(explaining [*620] that Article 85, which
extends the Conventions protections to
[p]risoners of war prosecuted under the
laws of the Detaining Power for acts
committed prior to capture, was adopted
in response to judicial interpretations of
the 1929 Geneva Convention, including
this
[***771]
Courts decision in
Yamashita). The most notorious exception
to the principle of uniformity, then, has
been stripped of its precedential value.
HN18 LEdHN[14] [14] The uniformity
principle is not an inflexible one; it does
not preclude all departures from the
procedures dictated for use by
courts-martial. But any departure must be
tailored to the exigency that necessitates it.
See Winthrop 835, n 81. That
understanding is reflected in Article 36 of

the UCMJ, which provides:
HN19 (a) The procedure, including
modes of proof, in cases before
courts-martial, courts of inquiry,
military commissions, and other
military tribunals may be prescribed
by the President by regulations
which shall, so far as he considers
practicable, apply the principles of
law and the rules of evidence
generally recognized in the trial of
criminal cases in the United States
district courts, but which may not be
contrary to or inconsistent with this
chapter.
(b) All rules and regulations made
under this article shall be uniform
insofar as practicable and shall be
reported to Congress. 70A Stat. 50.
HN20 Article 36 places two restrictions on
the Presidents power to promulgate rules
of procedure for courts-martial and military
commissions alike. First, no procedural
rule he adopts may be contrary to or
inconsistent with the UCMJ--however
practical it may seem. Second, the rules
adopted must be uniform insofar as
practicable. That is, the rules applied to
military commissions must be the same as
47
Article 2 of the UCMJ now reads: (a) The following persons are subject to [the UCMJ]: (9) Prisoners of war in custody of
the armed forces. HN17 (12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted
rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which
is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto
Rico, Guam, and the Virgin Islands. 10 U.S.C. 802(a). Guantanamo Bay is such a leased area. See Rasul v. Bush, 542 U.S. 466,
471, 124 S. Ct. 2686, 159 L. Ed. 2d 548 (2004).
48
The International Committee of the Red Cross is referred to by name in several provisions of the 1949 Geneva Conventions and
is the body that drafted and published the official commentary to the Conventions. Though not binding law, the commentary is, as
the parties recognize, relevant in interpreting the Conventions provisions.
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those applied to courts-martial unless such military commissions 49 --actually apply

[**2791]
to commissions, and
uniformity proves impracticable.
Commission Order No. 1 sets forth no
[*621] Hamdan argues that Commission procedure [*622] that is [***772]
Order No. 1 violates both of these contrary to or inconsistent with those 9
restrictions; he maintains that the provisions. Second, the Government
procedures described in the Commission contends, military commissions would be
Order are inconsistent with the UCMJ and of no use if the President were hamstrung
that the Government has offered no by those provisions of the UCMJ that
explanation for their deviation from the govern courts-martial. Finally, the
procedures governing courts-martial, which Presidents determination that the danger
are set forth in the Manual for to the safety of the United States and the
Courts-Martial, United States (2005 ed.) nature of international terrorism renders it
(Manual for Courts-Martial). Among the impracticable to apply in military
inconsistencies Hamdan identifies is that commissions . . . the principles of law and
the rules of evidence generally recognized
between 6 of the Commission Order,
in the trial of criminal cases in the United
which permits exclusion of the accused
States district courts, November 13 Order
from proceedings and denial of his access
1(f), is, in the Governments view,
to evidence in certain circumstances, and
explanation enough for any deviation from
the UCMJs requirement that [a]ll . . .
court-martial procedures. See Brief for
proceedings other than votes and Respondents 43-47, and n 22.
deliberations by courts-martial shall be
made a part of the record and shall be in LEdHN[1C] [1C] Hamdan has the better
the presence of the accused. 10 U.S.C. of this argument. Without reaching the
839(c) (2000 ed., Supp. 2006 ). Hamdan question whether any provision of
also observes that the Commission Order Commission Order No. 1 is strictly
dispenses with virtually all evidentiary contrary to or inconsistent with other
provisions of the UCMJ, we conclude that
rules applicable in courts-martial.
the practicability determination the
The Government has three responses. First, President has made is insufficient to justify
it argues, only 9 of the UCMJs 158 variances from the procedures governing
Articles--the ones that expressly mention courts-martial. HN21 Subsection (b) of
49
Aside from Articles 21 and 36, discussed at length in the text, the other seven Articles that expressly reference military
commissions are: (1) 28 (requiring appointment of reporters and interpreters); (2) 47 (making it a crime to refuse to appear or testify
before a court-martial, military commission, court of inquiry, or any other military court or board); (3) 48 (allowing a
court-martial, provost court, or military commission to punish a person for contempt); (4) 49(d) (permitting admission into
evidence of a duly authenticated deposition taken upon reasonable notice to the other parties only if admissible under the rules of
evidence and only if the witness is otherwise unavailable); (5) 50 (permitting admission into evidence of records of courts of
inquiry if otherwise admissible under the rules of evidence, and if certain other requirements are met); (6) 104 (providing that a
person accused of aiding the enemy may be sentenced to death or other punishment by military commission or court-martial); and
(7) 106 (mandating the death penalty for spies convicted before military commission or court-martial).
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Article 36 was added after World War II,

and requires a different showing of
impracticability from the one required by
subsection (a). Subsection (a) requires that
the rules the President promulgates for
courts-martial, provost courts, and military
commissions alike conform to those that
govern procedures in Article III courts, so
far as he considers practicable. 10 U.S.C.
836(a) (emphasis added). Subsection (b),
by contrast, demands that the rules applied
in courts-martial, provost courts, and
military commissions--whether or not they
conform with the Federal Rules of
Evidence--be uniform insofar as
practicable. 836(b) (emphasis added).
Under the latter provision, then, the rules
set forth in the Manual for Courts-Martial
must apply to military commissions unless
impracticable. 50
LEdHN[15] [15] The President
here has determined, pursuant to subsection
(a), that it is impracticable to apply the
rules and principles of law that govern the
trial of criminal cases in the United States
district courts, 836(a), to Hamdans
[*623]
commission. We assume that complete

deference is owed that determination. The
President has not, however, made a similar
official determination that it is
impracticable to apply the rules for
courts-martial. 51 And even if [**2792]
subsection (b)s requirements may be
satisfied [***773] without such an official
determination, the requirements of that
subsection are not satisfied here.
LEdHN[1D] [1D] Nothing in the record
before us demonstrates that it would be
impracticable to apply court-martial rules
in this case. There is no suggestion, for
example, of any logistical difficulty in
securing properly sworn and authenticated
evidence or in applying the usual principles
of relevance and admissibility. Assuming,
arguendo, that the reasons articulated in
the Presidents Article 36(a) determination
ought to be considered in evaluating the
impracticability of applying court-martial
rules, the only reason offered in support of
that determination is the danger posed by
international terrorism. 52 [*624] Without
for one moment underestimating that
50
Justice Thomas relies on the legislative history of the UCMJ to argue that Congress adoption of Article 36(b) in the wake of
World War II was motivated solely by a desire for uniformity across the separate branches of the armed services. Post, at 711,
165 L. Ed. 2d, at 827. But even if Congress was concerned with ensuring uniformity across service branches, that does not mean it
did not also intend to codify the longstanding practice of procedural parity between courts-martial and other military tribunals.
Indeed, the suggestion that Congress did not intend uniformity across tribunal types is belied by the textual proximity of subsection
(a) (which requires that the rules governing criminal trials in federal district courts apply, absent the Presidents determination of
impracticability, to courts-martial, provost courts, and military commissions alike) and subsection (b) (which imposes the uniformity
requirement).
51
We may assume that such a determination would be entitled to a measure of deference. For the reasons given by Justice
Kennedy, see post, at 640, 165 L. Ed. 2d, at 783 (opinion concurring in part), however, the level of deference accorded to a
determination made under subsection (b) presumably would not be as high as that accorded to a determination under subsection (a).
52
Justice Thomas looks not to the Presidents official Article 36(a) determination, but instead to press statements made by the
Secretary of Defense and the Under Secretary of Defense for Policy. See post, at 712-713, 165 L. Ed. 2d, at 827-829 (dissenting
opinion). We have not heretofore, in evaluating the legality of executive action, deferred to comments made by such officials to the
media. Moreover, the only additional reason the comments provide--aside from the general danger posed by international
terrorism--for departures from court-martial procedures is the need to protect classified information. As we explain in the text, and
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danger, it is not evident to us why it should

require, in the case of Hamdans trial, any
variance from the rules that govern
courts-martial.
The absence of any showing of
impracticability is particularly disturbing
when considered in light of the clear and
admitted failure to apply one of the most
fundamental protections afforded not just
by the Manual for Courts-Martial but also
by the UCMJ itself: the right to be present.
See 10 U.S.C. 839(c) (2000 ed., Supp.
V). Whether or not that departure
technically is contrary to or inconsistent
with the terms of the UCMJ, 10 U.S.C.
836(a), the jettisoning of so basic a right
cannot lightly be excused as practicable.
Under the circumstances, then, the rules
applicable in courts-martial must apply.
Since it is undisputed that Commission
Order No. 1 deviates in many significant
respects from those rules, it necessarily
violates Article 36(b).
The Governments objection that requiring
compliance with the court-martial rules
imposes an undue burden both ignores the
plain meaning of Article 36(b) and
misunderstands the purpose and the history
of military commissions. The military
commission was not born of a desire to
dispense a more summary form of justice

than is afforded by courts-martial; it
developed, rather, as a tribunal of necessity
to be employed when courts-martial lacked
jurisdiction over either the accused or the
subject matter. See Winthrop 831. Exigency
lent the commission its legitimacy, but did
not further justify the wholesale jettisoning
of procedural protections. [*625] That
history explains why the military
commissions procedures typically have
been the ones used by courts-martial. That
the jurisdiction of the two tribunals today
may sometimes overlap, see Madsen, 343
U.S., at 354, 72 S. Ct. 699, 96 L. Ed. 988,
does not [***774] detract from the force
of this history; 53 [**2793] Article 21 did
not transform the military commission from
a tribunal of true exigency into a more
convenient adjudicatory tool. Article 36,
confirming as much, strikes a careful
balance between uniform procedure and
the need to accommodate exigencies that
may sometimes arise in a theater of war.
That Article not having been complied
as Justice Kennedy elaborates in his separate opinion, the structural and procedural defects of Hamdans commission extend far
beyond rules preventing access to classified information.
53
Justice Thomas relies extensively on Madsen for the proposition that the President has free rein to set the procedures that
govern military commissions. See post, at 706-707, 709, n 16, 710 and 721, 165 L. Ed. 2d, at 824, 825, n 16, 826, and 827. That
reliance is misplaced. Not only did Madsen not involve a law-of-war military commission, but (1) the petitioner there did not
challenge the procedures used to try her, (2) the UCMJ, with its new Article 36(b), did not become effective until May 31, 1951,
after the petitioners trial, see 343 U.S., at 345, n. 6, 72 S. Ct. 699, 96 L. Ed. 988, and (3) the procedures used to try the petitioner
actually afforded more protection than those used in courts-martial, see id., at 358-360, 72 S. Ct. 699, 96 L. Ed. 988; see also id., at
358, 72 S. Ct. 699, 96 L. Ed. 988 ([T]he Military Government Courts for Germany . . . have had a less military character than that
of courts-martial).
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with here, the rules specified for Hamdans prosecute him in accordance with
trial are illegal. 54
Commission Order No. 1. Eisentrager
involved a challenge by 21 German
D
nationals to their 1945 convictions for war
LEdHN[2C] [2C] The procedures adopted crimes by a military tribunal convened in
to try Hamdan also violate the Geneva Nanking, China, and to their subsequent
Conventions. The Court of Appeals imprisonment in occupied Germany. The
dismissed Hamdans Geneva Convention petitioners argued, inter alia, that the 1929
challenge on three independent grounds: Geneva Convention rendered illegal some
(1) the Geneva Conventions are not of the procedures employed during their
judicially enforceable; (2) Hamdan in any trials, which they said deviated
event is not entitled to their protections; impermissibly from the procedures used
and (3) even if he is entitled to their by courts-martial to try American soldiers.
protections, Councilman abstention is See id., at 789, 70 S. Ct. 936, 94 L. Ed.
appropriate. Judge Williams, concurring, 1255. We rejected that claim on the merits
rejected the second ground but agreed with because the petitioners (unlike Hamdan
the [*626] majority respecting the first here) had failed to [***775] identify any
and the last. As we explained in Part III,
prejudicial disparity between the
supra, the abstention rule applied in
Commission that tried [them] and those
Councilman, 420 U.S. 738, 95 S. Ct. 1300,
that would try an offending soldier of the
43 L. Ed. 2d 591, is not applicable here. 55
American forces of like rank, and in any
And for the reasons that follow, we hold
event could claim no protection, under the
that neither of the other grounds the Court
1929 Geneva Convention, during trials for
of Appeals gave for its decision is
crimes that occurred before their
persuasive.
confinement as prisoners of war. Id., at
i
790, 70 S. Ct. 936, 94 L. Ed. 1255. 56
The Court of Appeals relied on Johnson v.
Eisentrager, 339 U.S. 763, 70 S. Ct. 936,
94 L. Ed. 1255 (1950), to hold that Hamdan
could not invoke the Geneva Conventions
to challenge the Governments plan to
[*627]
[**2794] Buried in a footnote of
the opinion, however, is this curious

statement suggesting that the Court lacked
power even to consider the merits of the
Geneva Convention argument:
54
Prior to the enactment of Article 36(b), it may well have been the case that a deviation from the rules governing courts-martial
would not have rendered the military commission illegal. Post, at 707, n 16, 165 L. Ed. 2d, at 824-825 (Thomas, J., dissenting)
(quoting Winthrop 841). Article 36(b), however, imposes a statutory command that must be heeded.
55
Justice Thomas makes the different argument that Hamdans Geneva Convention challenge is not yet ripe because he has yet
to be sentenced. See post, at 719-720, 65 L. Ed. 2d, at 831-833. This is really just a species of the abstention argument we have
already rejected. See Part III, supra. The text of the Geneva Conventions does not direct an accused to wait until sentence is
imposed to challenge the legality of the tribunal that is to try him.
56
As explained in Part VI-C, supra, that is no longer true under the 1949 Conventions.
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We are not holding that these

prisoners have no right which the
military authorities are bound to
respect. The United States, by the
Geneva Convention of July 27, 1929,
47 Stat. 2021, concluded with
forty-six other countries, including
the German Reich, an agreement
upon the treatment to be accorded
captives. These prisoners claim to
be and are entitled to its protection.
It is, however, the obvious scheme
of the Agreement that responsibility
for observance and enforcement of
these rights is upon political and
military authorities. Rights of alien
enemies are vindicated under it only
through protests and intervention of
protecting powers as the rights of
our citizens against foreign
governments are vindicated only by
Presidential intervention. Id., at
789, n. 14, 70 S. Ct. 936, 94 L. Ed.
1255.
The Court of Appeals, on the strength of
this footnote, held that the 1949 Geneva
Convention does not confer upon Hamdan
a right to enforce its provisions in court.
415 F.3d at 40.
Whatever else might be said about the
Eisentrager footnote, it does not control
this case. We may assume that the obvious

scheme of the 1949 Conventions is
identical in all relevant respects to that of
the 1929 Geneva Convention, 57 and even
that that scheme would, absent some other
provision of law, preclude Hamdans
invocation of the Conventions provisions
as an independent source of law binding
the Governments [*628] actions and
furnishing petitioner with any enforceable
right. 58 For, HN22 regardless of the nature
of the rights conferred on Hamdan, cf.
United States v. Rauscher, 119 U.S. 407, 7
S. Ct. 234, 30 L. Ed. 425 (1886), they are,
as the Government does not dispute, part
of the law of war. See Hamdi, 542 U.S., at
520-521, 124 S. Ct. 2633, 159 L. Ed. 2d
578 (plurality opinion). And compliance
with the law of war is the condition upon
which the authority set forth in Article 21
is granted.
ii
For the Court of Appeals, acknowledgment
[***776] of that condition was no bar to
Hamdans trial by commission. As an
alternative to its holding that Hamdan
could not invoke the Geneva Conventions
at all, the Court of Appeals concluded that
the Conventions did not in any event apply
to the armed conflict during which Hamdan
was captured. The court accepted the
57
But see, e.g., 4 Intl Comm. of Red Cross, Commentary: Geneva Convention Relative to the Protection of Civilian Persons in
Time of War 21 (J. Pictet gen ed. 1958) (hereinafter GCIV Commentary) (the 1949 Geneva Conventions were written first and
foremost to protect individuals, and not to serve State interests); GCIII Commentary 91 (It was not . . . until the Conventions of
1949 . . . that the existence of rights conferred on prisoners of war was affirmed).
58
But see generally Brief for Louis Henkin et al. as Amici Curiae; 1 Intl Comm. of Red Cross, Commentary: Geneva Convention
for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 84 (1952) (It should be possible in
States which are parties to the Convention . . . for the rules of the Convention . . . to be evoked before an appropriate national court
by the protected person who has suffered the violation); GCIII Commentary 92; GCIV Commentary 79.
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Executives assertions that Hamdan was

captured in connection with the United
States war with al Qaeda and that that war
is distinct from the war with the Taliban in
Afghanistan. It further reasoned [**2795]
that the war with al Qaeda evades the reach
of the Geneva Conventions. See 415 F.3d
at 41-42. We, like Judge Williams, disagree
with the latter conclusion.
The conflict with al Qaeda is not, according
to the Government, a conflict to which the
full protections afforded detainees under
the 1949 Geneva Conventions apply
because Article 2 of those Conventions
(which appears in all four Conventions)
renders the full protections applicable only
to all cases of declared war or of any
other armed conflict which may arise
between two or more of the High
Contracting [*629] Parties. 6 U. S. T., at
3318. 59 Since Hamdan was captured and
detained incident to the conflict with al
Qaeda and not the conflict with the Taliban,
and since al Qaeda, unlike Afghanistan, is
not a High Contracting Party--i.e., a
signatory of the Conventions, the
59
protections of those Conventions are not, it

is argued, applicable to Hamdan. 60
We need not decide the merits of this
argument because there is at least one
provision of the Geneva Conventions that
applies here even if the relevant conflict is
not one between signatories. 61 HN23
Article 3, often referred to as Common
Article 3 because, like Article 2, it appears
in all four Geneva Conventions, provides
that in a conflict not of an international
character occurring in the territory of one
of the High Contracting Parties, each Party
62
to the conflict shall be bound to apply, as
a minimum, certain provisions protecting
[p]ersons taking no active part in the
hostilities, including [*630] members of
armed forces who have laid down their
arms and those placed hors de combat by .
. . detention. Id., at 3318. One such
provision prohibits the passing of
sentences and the carrying out of
executions without previous judgment
pronounced by a regularly constituted
[***777] court affording all the judicial
indispensable by civilized peoples. Id., at
3320.
For conveniences sake, we use citations to the Third Geneva Convention only.
60
The President has stated that the conflict with the Taliban is a conflict to which the Geneva Conventions apply. See White
House Memorandum, Humane Treatment of Taliban and al Qaeda Detainees 2 (Feb. 7, 2002), available at
http://www.justicescholars.org/pegc/archive/White_House/bush_memo_20020207_ed .pdf.
61
Hamdan observes that Article 5 of the Third Geneva Convention requires that if there be any doubt whether he is entitled to
prisoner-of-war protections, he must be afforded those protections until his status is determined by a competent tribunal. 6 U. S.
T., at 3324. See also Headquarters Depts. of Army, Navy, Air Force, and Marine Corps, Army Regulation 190-8, Enemy Prisoners
of War, Retained Personnel, Civilian Internees and Other Detainees (1997), App. 116. Because we hold that Hamdan may not, in
any event, be tried by the military commission the President has convened pursuant to the November 13 Order and Commission
Order No. 1, the question whether his potential status as a prisoner of war independently renders illegal his trial by military
commission may be reserved.
62
The term Party here has the broadest possible meaning; a Party need neither be a signatory of the Convention nor even
represent a legal entity capable of undertaking international obligations. GCIII Commentary 37.
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The Court of Appeals thought, and the

Government asserts, that Common Article
3 does not apply to Hamdan because the
conflict with al Qaeda, being international
in scope, does not qualify as a conflict
not of an international character. 415
F.3d at 41. That reasoning is erroneous.
HN24 The term conflict not of an
international character is used here in
nations. So much is demonstrated by the
fundamental logic [of] the Conventions
provisions on its [**2796] application.
Id., at 44 (Williams, J., concurring).
Common Article 2 provides that the
present Convention shall apply to all cases
of declared war or of any other armed
conflict which may arise between two or
more of the High Contracting Parties. 6
U. S. T., at 3318 (Art. 2, P 1). High
Contracting Parties (signatories) also must
abide by all terms of the Conventions
vis-a-vis one another even if one party to
the conflict is a nonsignatory Power, and
must so abide vis-a-vis the nonsignatory if
the latter accepts and applies those terms.
Ibid. (Art. 2, P 3). Common Article 3, by
contrast, affords some minimal protection,
falling short of full protection under the
Conventions, to individuals associated with
neither a signatory nor even a nonsignatory
Power who are involved in a conflict in
the territory of a signatory. The latter kind
of conflict is distinguishable from the
conflict described in Common Article 2

chiefly because it does not involve a clash
between nations (whether signatories or
not). In context, then, the phrase not of an
international character bears its literal
meaning. See, e.g., J. Bentham,
Introduction to the Principles of Morals
and Legislation 6, 296 (J. [*631] Burns &
H. Hart eds. 1970) (using the term
international law as a new though not
inexpressive appellation meaning betwixt
nation and nation; defining international
to include mutual transactions between
sovereigns as such); Intl Comm. of Red
Cross Commentary on the Additional
Protocols to the Geneva Conventions of 12
August 1949, p 1351 (1987) ([A]
non-international armed conflict is distinct
from an international armed conflict
because of the legal status of the entities
opposing each other).
HN25 Although the official commentaries
accompanying Common Article 3 indicate
that an important purpose of the provision
was to furnish minimal protection to rebels
involved in one kind of conflict not of an
international character, i.e., a civil war,
see GCIII Commentary 36-37, the
commentaries also make clear that the
scope of application of the Article must be
as wide as possible, id., at 36. 63 In fact,
limiting language that would have rendered
Common Article 3 applicable especially
63
See also id., at 35 (Common Article 3 has the merit of being simple and clear . . . Its observance does not depend upon
preliminary discussions on the nature of the conflict); GCIV Commentary 51 ([N]obody in enemy hands can be outside the law);
U.S. Army Judge Advocate Generals Legal Center and School, Dept. of the Army, Law of War Workshop Deskbook 228 (June
2000)(reprint 2004) (Common Article 3 serves as a minimum yardstick of protection in all conflicts, not just internal armed
conflicts (quoting Nicaragua v. United States, 1986 I. C. J. 14, P 218, 25 I. L. M. 1023)); Prosecutor v. Tadic, Case No. IT-94-1,
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, P 102 (ICTY App. Chamber, Oct. 2, 1995) (stating that
the character of the conflict is irrelevant in deciding whether Common Article 3 applies).
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[to] cases of civil war, colonial conflicts,

or wars of religion was omitted from the
final version of the Article, which coupled
broader scope of [***778] application
with a narrower range of rights than did
earlier proposed iterations. See Id. at 42-43.
iii
HN26 Common Article 3, then, is
applicable here and, as indicated above,
requires that Hamdan be tried by a
[*632]
constituted court
regularly
affording all the judicial guarantees which
are recognized as indispensable by civilized
peoples. 6 U. S. T., at 3320 (Art. 3, P
1(d)). While the term regularly constituted
court is not specifically defined in either
Common Article 3 or its accompanying
commentary, other sources disclose its core
meaning. The commentary accompanying
a provision of the Fourth Geneva
Convention, for example, defines
regularly constituted tribunals to
include ordinary military courts and
definitely exclud[e] all special [**2797]
tribunals. GCIV Commentary 340
(defining the term properly constituted
in Article 66, which the commentary treats
as identical to regularly constituted); 64
see also Yamashita, 327 U.S., at 44, 66 S.
Ct. 340, 90 L. Ed. 499 (Rutledge, J.,
dissenting)
(describing
military
commission as a court specially
constituted for the particular trial). And
one of the Red Cross own treatises defines

regularly constituted court as used in
Common Article 3 to mean established
and organized in accordance with the laws
country. Intl Comm. of Red Cross, 1
Customary Intl Humanitarian Law 355
(2005); see also GCIV Commentary 340
(observing that ordinary military courts
will be set up in accordance with the
recognized principles governing the
administration of justice).
The Government offers only a cursory
defense of Hamdans military commission
in light of Common Article 3. See Brief for
Respondents 49-50. As Justice Kennedy
explains, that defense fails because [t]he
regular military courts in our system are
the
courts-martial
established
by
congressional statutes. Post, at 644, 165
L. Ed. 2d, at 785 (opinion concurring in
part). HN27 At a minimum, a military
commission can be regularly constituted
by the standards of our military justice
system [*633] only if some practical need
explains deviations from court-martial
practice. Post, at 645, 165 L. Ed. 2d, at
786. As we have explained, see Part VI-C,
supra, no such need has been demonstrated
here. 65
iv
Inextricably intertwined with the question
of regular constitution is the evaluation of
64
The commentarys assumption that the terms properly constituted and regularly constituted are interchangeable is beyond
reproach; the French version of Article 66, which is equally authoritative, uses the term regulierement constitues in place of
properly constituted. 6 U. S. T., at 3559.
65
Further evidence of this tribunals irregular constitution is the fact that its rules and procedures are subject to change midtrial, at
the whim of the Executive. See Commission Order No. 1, 11 (providing that the Secretary of Defense may change the governing
rules from time to time).
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the procedures governing the tribunal and

whether they afford all the judicial
indispensable by civilized peoples. 6 U.
S. T., at 3320 (Art. 3, P 1(d)). Like the
phrase regularly constituted court, this
phrase is not defined in the text of the
Geneva Conventions. But it must be
understood to incorporate at least the barest
of those trial protections that have been
recognized by customary international law.
Many of these are [***779] described in
Article 75 of Protocol I to the Geneva
Conventions of 1949, adopted in 1977
(Protocol I). Although the United States
declined to ratify Protocol I, its objections
were not to Article 75 thereof. Indeed, it
appears that the Government regard[s] the
provisions of Article 75 as an articulation
of safeguards to which all persons in the
hands of an enemy are entitled. Taft, The
Law of Armed Conflict After 9/11: Some
Salient Features, 28 Yale J. Intl L. 319,
322 (2003). Among the rights set forth in
Article 75 is the right to be tried in [ones]

presence. Protocol I, Art. 75(4)(e). 66
[*634] We agree with Justice Kennedy
that the procedures adopted to try Hamdan

[**2798] deviate from those governing
courts-martial in ways not justified by any
evident practical need, post, at 647, 165
L. Ed. 2d, at 787, and for that reason, at
least, fail to afford the requisite guarantees.
See post, at 646-653, 165 L. Ed. 2d, at
785, 786-790. We add only that, as noted
in Part VI-A, supra, various provisions of
Commission Order No. 1 dispense with the
principles, articulated in Article 75 and
indisputably part of the customary
international law, that an accused must,
absent disruptive conduct or consent, be
present for his trial and must be privy to
the evidence against him. See 6(B)(3),
(D). 67 That the [*635] Government has a
compelling interest in denying Hamdan
access to certain sensitive information is
not doubted. Cf. post, at 723-724, 165 L.
66
Other international instruments to which the United States is a signatory include the same basic protections set forth in Article
75. See, e.g., International Covenant on Civil and Political Rights, Art. 14, P 3(d), Mar. 23, 1976, 999 U. N. T. S. 171 (setting forth
the right of an accused [t]o be tried in his presence, and to defend himself in person or through legal assistance of his own
choosing). Following World War II, several defendants were tried and convicted by military commission for violations of the law
of war in their failure to afford captives fair trials before imposition and execution of sentence. In two such trials, the prosecutors
argued that the defendants failure to apprise accused individuals of all evidence against them constituted violations of the law of
war. See 5 U. N. War Crimes Commission, Law Reports of Trials of War Criminals 25, 30 (1948)(reprint 1997) (trial of
Sergeant-Major Shigeru Ohashi), 66, 75 (trial of General Tanaka Hisakasu).
67
The Government offers no defense of these procedures other than to observe that the defendant may not be barred from access
to evidence if such action would deprive him of a full and fair trial. Commission Order No. 1, 6(D)(5)(b). But the Government
suggests no circumstances in which it would be fair to convict the accused based on evidence he has not seen or heard. Cf.
Crawford v. Washington, 541 U.S. 36, 49, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (It is a rule of the common law, founded on
natural justice, that no man shall be prejudiced by evidence which he had not the liberty to cross examine (quoting State v. Webb,
2 N. C. 103, 104 (Super. L. & Eq. 1794) (per curiam)); Diaz v. United States, 223 U.S. 442, 455, 32 S. Ct. 250, 56 L. Ed. 500
(1912) (describing the right to be present as scarcely less important to the accused than the right of trial itself); Lewis v. United
States, 146 U.S. 370, 372, 13 S. Ct. 136, 36 L. Ed. 1011 (1892) (exclusion of defendant from part of proceedings is contrary to the
dictates of humanity (internal quotation marks omitted)); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 170, n. 17,
171, 71 S. Ct. 624, 95 L. Ed. 817 (1951) (Frankfurter, J., concurring) ([T]he plea that evidence of guilt must be secret is abhorrent
to free men (internal quotation marks omitted)). More fundamentally, the legality of a tribunal under Common Article 3 cannot be
established by bare assurances that, whatever the character of the court or the procedures it follows, individual adjudicators will act
fairly.
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Ed. 2d, at 834 (Thomas, J., dissenting). The judgment of the Court of Appeals is
But, at least absent express statutory reversed, and the case is remanded for
provision to the contrary, information used further proceedings.
to convict a person of a crime must be
[**2799] It is so ordered.
disclosed to him.
The Chief Justice took no part in the
v
consideration or decision of this case.
HN28 Common Article 3 obviously
tolerates [***780] a great degree of
flexibility in trying individuals captured
during armed conflict; its requirements are
general ones, crafted to accommodate a
wide variety of legal systems. But
requirements they are nonetheless. The
commission that the President has
convened to try Hamdan does not meet
those requirements.
VII
LEdHN[16] [16] We have assumed, as we
must, that the allegations made in the
Governments charge against Hamdan are
true. We have assumed, moreover, the
truth of the message implicit in that
charge--viz., that Hamdan is a dangerous
individual whose beliefs, if acted upon,
would cause great harm and even death to
innocent civilians, and who would act
upon those beliefs if given the opportunity.
It bears emphasizing that Hamdan does not
challenge, and we do not today address,
the Governments power to detain him for
the duration of active hostilities in order to
prevent such harm. But in undertaking to
try Hamdan and subject him to criminal
punishment, the Executive is bound to
comply with the rule of law that prevails in
this jurisdiction.
Concur by: BREYER; KENNEDY (In

Part)
Concur
[*636] Justice Breyer, with whom Justice
Kennedy, Justice Souter, and Justice

Ginsburg join, concurring.
The dissenters say that todays decision
would sorely hamper the Presidents
ability to confront and defeat a new and
deadly enemy. Post, at 705, 165 L. Ed.
2d, at 823 (opinion of Thomas, J.). They
suggest that it undermines our Nations
ability to preven[t] future attacks of the
grievous sort that we have already suffered.
Post, at 724, 165 L. Ed. 2d, at 834-835.
That claim leads me to state briefly what I
believe the majority sets forth both
explicitly and implicitly at greater length.
The Courts conclusion ultimately rests
upon a single ground: Congress has not
issued the Executive a blank check. Cf.
Hamdi v. Rumsfeld, 542 U.S. 507, 536, 124
S. Ct. 2633, 159 L. Ed. 2d 578 (2004)
(plurality opinion). Indeed, Congress has
denied the President the legislative
authority to create military commissions of
the kind at issue here. Nothing prevents the
President from returning to Congress to
seek the authority he believes necessary.
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Where, as here, no emergency prevents

consultation with Congress, judicial
insistence upon that consultation does not
weaken our Nations ability to deal with
danger. To the contrary, that insistence
strengthens the Nations ability to
determine--through democratic means-how best to do so. The Constitution places
its faith in those democratic means. Our
Court today simply does the same. Justice
Kennedy, with whom Justice Souter,
Justice Ginsburg, and Justice Breyer join
as to Parts I and II, concurring in part.
by reliance on standards tested over time

and insulated from the pressures of the
moment.
These principles seem vindicated here, for
a case that may be of extraordinary
importance is resolved by ordinary rules.
The rules of most relevance here are those
pertaining to the authority of Congress and
the interpretation of its enactments.
It seems appropriate to recite these rather
fundamental points because the Court
refers, as it should in its exposition of the
case, to the requirement of the Geneva
Conventions of 1949 that military tribunals
be regularly constituted, ante, at 632,
165 L. Ed. 2d, at 778--a requirement that
controls here, if for no other reason,
because Congress requires that military
commissions like the ones at issue conform
to the law of war, 10 U.S.C. 821.
Whatever the substance and content of the
term regularly [**2800] constituted as
interpreted in this and any later cases, there
seems little doubt that it relies upon the
importance of standards deliberated upon
and chosen in advance of crisis, under a
system where the single power of the
Executive is checked by other
constitutional mechanisms. All of which
returns us to the point of beginning--that
domestic statutes control this case. If
Congress, after due consideration, deems it
appropriate to change the controlling
statutes, in conformance with the
Constitution and other laws, it has the
power and prerogative to do so.
Military Commission Order No. 1, which

governs
the
military
commission
established to try petitioner Salim Hamdan
for war crimes, exceeds [***781] limits
that certain statutes, duly enacted by
Congress, have placed on the Presidents
authority to convene military courts. This
is not a case, then, where the Executive can
assert some unilateral authority to fill a
void left by congressional inaction. It is a
case where Congress, in the proper exercise
of its powers as an independent [*637]
branch of government, and as part of a
long tradition of legislative involvement in
matters of military justice, has considered
the subject of military tribunals and set
limits on the Presidents authority. Where
a statute provides the conditions for the
exercise of governmental power, its
requirements are the result of a deliberative
and reflective process engaging both of the
political branches. Respect for laws derived
from the customary operation of the
Executive and Legislative Branches gives
some assurance of stability in time of [*638] I join the Courts opinion, save
crisis. The Constitution is best preserved Parts V and VI-D-iv. To state my reasons
Angelo Tannuzzo
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548 U.S. 557, *638; 126 S. Ct. 2749, **2800; 165 L. Ed. 2d 723, ***781
Abs. 417 When the President acts in

absence of either a congressional grant or
denial of authority, he can only rely upon
his own independent powers, but there is a
zone of twilight in which he and Congress
may have concurrent authority, or in which
its distribution is uncertain. Id., at 637, 72
I
S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law
Abs. 417And [w]hen the President takes
Trial by military commission raises
measures incompatible with the expressed
separation-of-powers concerns of the
or implied will of Congress, his power is at
highest order. Located within a single
its lowest ebb. Ibid.
branch, these courts carry the risk that
offenses will be defined, prosecuted, and In this case, as the Court observes, the
adjudicated by executive officials without President has acted in a field with a history
independent review. Cf. Loving v. United of congressional participation and
States, 517 U.S. 748, 756-758, 760, 116 S. regulation. Ante, at 593, 619-620, 165 L.
Ct. 1737, 135 L. Ed. 2d 36 (1996). Ed. 2d, at 754-755, 769-771. In the
Concentration of power puts personal Uniform Code [*639] of Military Justice
liberty in peril of arbitrary action by (UCMJ), 10 U.S.C. 801 et seq., which
officials, an incursion the Constitutions Congress enacted, building on earlier
three-part system is designed to avoid. It is statutes, in 1950, see Act of May 5, 1950,
imperative, then, that when military ch. 169, 64 Stat. 107, and later amended,
tribunals are established, full and proper see, e.g., Military Justice Act of 1968, 82
authority exists for the Presidential Stat. 1335, Congress has set forth
governing principles for military courts.
directive.
The UCMJ as a whole establishes an
The proper framework for assessing intricate system of military justice. It
whether executive actions are authorized is authorizes courts-martial in various forms,
the three-part scheme used by [***782] 10 U.S.C. 816-820 (2000 ed. and Supp.
Justice Jackson in his opinion in III); it regulates the organization and
Youngstown Sheet & Tube Co. v. Sawyer, procedure of those courts, e.g., 822-835,
343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 851-854; it defines offenses, 877-934,
1153, 62 Ohio Law Abs. 417 (1952). When and rights for the accused, e.g.,
the President acts pursuant to an express or 827(b)-(c), 831, 844, 846, 855 (2000 ed.);
implied authorization of Congress, his and it provides mechanisms for appellate
authority is at its maximum, for it includes review, 859-876b (2000 ed. and Supp.
all that he possesses in his own right plus III). As explained below, the statute further
all that Congress can delegate. Id., at 635, recognizes
that
special
military
72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law commissions may be convened to try war
for this reservation, and to show my
agreement with the remainder of the
Courts analysis by identifying particular
deficiencies in the military commissions at
issue, this separate opinion seems
appropriate.
Angelo Tannuzzo
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crimes. See infra, at 641, 165 L. Ed. 2d, at

783-784; 821 (2000 ed.). While these
laws provide authority for certain forms of
military courts, they also [**2801] impose
limitations, at least two of which control
this case. If the President has exceeded
these limits, this becomes a case of conflict
between Presidential and congressional
action--a case within Justice Jacksons third
category, not the second or first.
requirements: (1) Procedures for military

[***783]
courts must conform to
district-court rules insofar as the President
considers practicable; (2) the procedures
may not be contrary to or inconsistent with
the provisions of the UCMJ; and (3)
insofar as practicable all rules and
regulations under 836 must be uniform, a
requirement, as the Court points out, that
indicates the rules must be the same for
military commissions as for courts-martial
One limit on the Presidents authority is
unless such uniformity is impracticable,
contained in Article 36 of the UCMJ. That
ante, at 620, 622, 165 L. Ed. 2d, at 771,
section provides:
772, and n 50.
(a) Pretrial, trial, and post-trial
procedures, including modes of
proof, for cases arising under this
chapter triable in courts-martial,
military commissions and other
military tribunals, and procedures
for courts of inquiry, may be
prescribed by the President by
regulations which shall, so far as he
considers practicable, apply the
principles of law and the rules of
evidence generally recognized in the
trial of criminal cases in the United
States district courts, but which may
not be contrary to or inconsistent
with this chapter.
(b) All rules and regulations made
under this article shall be uniform
insofar as practicable. 10 U.S.C.
836 (2000 ed.).
[*640] In this provision the statute allows
the President to implement and build on

the UCMJs framework by adopting
procedural regulations, subject to three
As the Court further instructs, even

assuming the first and second requirements
of 836 are satisfied here--a matter of
some dispute, see ante, at 620-622, 165 L.
Ed. 2d, at 771-772--the third requires us to
compare
the
military-commission
procedures with those for courts-martial
and determine, to the extent there are
deviations, whether greater uniformity
would be practicable. Ante, at 623-625,
165 L. Ed. 2d, at 772-774. Although we
can assume the Presidents practicability
judgments are entitled to some deference,
the Court observes that Congress choice
of language in the uniformity provision of
10 U.S.C. 836(b) contrasts with the
language of 836(a). This difference
suggests, at the least, a lower degree of
deference for 836(b) determinations.
Ante, at 623, 165 L. Ed. 2d, at 772-773.
The rules for military courts may depart
from federal-court rules whenever the
President
considers
conformity
impracticable, 836(a); but the statute
requires procedural uniformity across
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different military courts insofar as

[uniformity is] practicable, 836(b), not
insofar as the President considers it to be
so. The Court is right to conclude this is of
relevance to our decision. Further, as the
Court is also correct to conclude, ante, at
623-624, 165 L. Ed. 2d, at 772-773, the
term practicable cannot be construed to
permit deviations based on mere
convenience or expedience. Practicable
means feasible, that is, possible to
practice or perform or capable of being
put into practice, done, or accomplished.
Websters [*641] Third New International
Dictionary 1780 (1961). Congress chosen
language, then, is best understood to allow
the selection of procedures based on
logistical constraints, the accommodation
of witnesses, the security of the
proceedings, and the like. Insofar as the
[p]retrial, trial, and post-trial procedures
for the military commissions at issue
deviate from court-martial practice, the
deviations must be explained by some
such practical need.

tribunals.
In 821 Congress has addressed the

possibility
that
special
military
commissions--criminal courts other than
courts-martial--may at times be convened.
At the same time, however, the Presidents
is limited: It extends only to offenders or
offenses that by statute or by the law of
war may be tried by such military
commissions. Ibid.; see also ante, at
[***784] 593, 165 L. Ed. 2d, at 754-755.
The Government does not claim to base
the charges against Hamdan on a statute;
instead it invokes the law of war. That law,
as the Court explained in Ex parte Quirin,
317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. 3 (1942),
derives from rules and precepts of the law
of nations; it is the body of international
law governing armed conflict. Id., at 28,
63 S. Ct. 2, 87 L. Ed. 3. If the military
commission at issue is illegal under the
law of war, then an offender cannot be
tried by the law of war before that
[**2802] In addition to 836, a second commission.
UCMJ provision, 10 U.S.C. 821, requires
us to compare the commissions at issue to The Court is correct to concentrate on one
provision of the law of war that is
courts-martial. This provision states:
applicable to our Nations armed conflict
The provisions of this chapter
[*642] with al Qaeda in Afghanistan and,
conferring
jurisdiction
upon
as a result, to the use of a military
courts-martial do not deprive
commission to try Hamdan. Ante, at
629-633, 165 L. Ed. 2d, at 775-778; see
military commissions, provost
courts, or other military tribunals of
also 367 U.S. App. D.C. 265, 415 F.3d 33,
44 (CADC 2005) (Williams, J., concurring).
concurrent jurisdiction with respect
to offenders or offenses that by
That provision is Common Article 3 of the
statute or by the law of war may be
four Geneva Conventions of 1949. It
tried by military commissions,
prohibits, as relevant here, the passing of
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sentences and the carrying out of

executions without previous judgment
pronounced by a regularly constituted court
affording all the judicial guarantees which
are recognized as indispensable by civilized
peoples. See, e.g., Article 3 of the Geneva
Convention (III) Relative to the Treatment
of Prisoners of War, Aug. 12, 1949, [1955]
6 U. S. T. 3316, 3318, T. I. A. S. No. 3364.
The provision is part of a treaty the United
States has ratified and thus accepted as
binding law. See id., at 3316. By Act of
Congress, moreover, violations of Common
Article 3 are considered war crimes,
punishable as federal offenses, when
committed by or against United States
nationals and military personnel. See 18
U.S.C. 2441. There should be no doubt,
then, that Common Article 3 is part of the
law of war as that term is used in 821.
The dissent by Justice Thomas argues that
Common Article 3 nonetheless is irrelevant
to this case because in Johnson v.
Eisentrager, 339 U.S. 763, 70 S. Ct. 936,
94 L. Ed. 1255 (1950), it was said to be the
obvious scheme of the 1929 Geneva
Convention that [r]ights of alien enemies
are vindicated under it only through
protests and intervention of protecting
powers, i.e., signatory states, id., at 789,
n. 14, 70 S. Ct. 936, 94 L. Ed. 1255. As the
Court explains, ante, at 626-628, 165 L.
Ed. 2d, at 774-775, this language from
Eisentrager is not controlling here. Even
assuming the Eisentrager analysis has some
bearing upon the analysis of the broader
1949 Conventions and that, in consequence,
rights are vindicated under [those
Conventions] only through protests and
intervention, 339 U.S., at 789, n. 14, 70 S.

Ct. 936, 94 L. Ed. 1255, Common Article 3
is nonetheless relevant to the question of
authorization under 821. Common Article
3 is part of the law of war that Congress
has directed the President to follow in
establishing military [*643] commissions.
Ante, at 629-630, 165 L. Ed. 2d, at 776-777.
Consistent with that [**2803] view, the
Eisentrager Court itself considered on the
merits
claims
that
procedural
irregularities under the 1929 Convention
deprive[d] the Military Commission of
jurisdiction. 339 U.S., at 789, 790, 70 S.
Ct. 936, 94 L. Ed. 1255
In another military commission case, In re
Yamashita, 327 U.S. 1, 66 S. Ct. 340, 90 L.
Ed. 499 (1946), the Court likewise
considered on the merits--without any
caveat about [***785] remedies under the
Convention--a claim that an alleged
violation of the 1929 Convention
establish[ed] want of authority in the
commission to proceed with the trial. Id.,
at 23, 24, 66 S. Ct. 340, 90 L. Ed. 499. That
is the precise inquiry we are asked to
perform here.
Assuming the President has authority to
establish a special military commission to
try Hamdan, the commission must satisfy
Common Article 3s requirement of a
regularly constituted court affording all
the judicial guarantees which are
recognized as indispensable by civilized
peoples, 6 U. S. T., at 3320. The terms of
this general standard are yet to be
elaborated and further defined, but
Congress has required compliance with it
Angelo Tannuzzo
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548 U.S. 557, *643; 126 S. Ct. 2749, **2803; 165 L. Ed. 2d 723, ***785
by referring to the law of war in 821.

The Court correctly concludes that the
military commission here does not comply
with this provision.
Common Article 3s standard of a
regularly constituted court affording all
the judicial guarantees which are
peoples, ibid., supports, at the least, a
uniformity principle similar to that codified
in 836(b). The concept of a regularly
constituted
court
providing
indispensable judicial guarantees requires
consideration of the system of justice under
which the commission is established,
though no doubt certain minimum
standards are applicable. See ante, at
632-633, 165 L. Ed. 2d, at 778; 1 Intl
Comm. of Red Cross, 1 Customary Intl
Humanitarian Law 355 (2005) (explaining
that courts are regularly constituted under
Common Article 3 if they are established
and organised in accordance with the laws
country).
[*644] The regular military courts in our
system are the courts-martial established

by congressional statutes. Acts of Congress
confer on those courts the jurisdiction to
try any person subject to war crimes
prosecution. 10 U.S.C. 818. As the Court
explains, moreover, while special military
commissions have been convened in
previous armed conflicts--a practice
recognized in 821 --those military
commissions generally have adopted the
structure and procedure of courts-martial.
See, e.g., 1 The War of the Rebellion: A
Compilation of the Official Records of the

Union and Confederate Armies 248 (2d
series 1894) (Civil War general order
requiring that military commissions be
constituted in a similar manner and their
proceedings be conducted according to the
same general rules as courts-martial in
order to prevent abuses which might
otherwise arise); W. Winthrop, Military
Law and Precedents 835, n 81 (rev. 2d ed.
1920) ([M]ilitary commissions are
constituted and composed, and their
proceedings are conducted, similarly to
general courts-martial); 1 U.N. War
Crimes Commission, Law Reports of Trials
of War Criminals 116-117 (1947) (reprint
1997)
(hereinafter
Law
Reports)
(discussing post-World War II regulations
requiring that military commissions hav[e]
regard for rules of procedure and evidence
applicable in general courts-martial); see
also ante, at 617-620, 165 L. Ed. 2d, at
769-771; post, at 707, n 15, 165 L. Ed. 2d,
at 824 (Thomas, J., dissenting). Today,
moreover, 836(b) --which took effect
after the military trials in the World War II
cases invoked by the dissent, see Madsen
v. Kinsella, 343 U.S. 341, 344-345, 72 S.
Ct. 699, 96 L. Ed. 988, and n. 6 (1952);
[**2804] Yamashita, supra, at [***786]
5, 66 S. Ct. 340, 90 L. Ed. 499; Quirin, 317
U.S., at 23, 63 S. Ct. 2, 87 L. Ed. 3
--codifies this presumption of uniformity
at least as to [p]retrial, trial, and post-trial
procedures. Absent more concrete
statutory guidance, this historical and
statutory background--which suggests that
some practical need must justify deviations
from the court-martial model--informs the
understanding of which military courts are
Angelo Tannuzzo
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548 U.S. 557, *644; 126 S. Ct. 2749, **2804; 165 L. Ed. 2d 723, ***786
regularly constituted under United States justice system only if some practical need
explains deviations from court-martial
law.
[*646] practice. In this regard the standard
[*645] In addition, whether or not the
of Common Article 3, applied here in
possibility, contemplated by the regulations conformity with 821, parallels the
here, of midtrial procedural changes could
practicability standard of 836(b). Section
by itself render a military commission 836, however, is limited by its terms to
impermissibly irregular, ante, at 633, n 65,
matters properly characterized as
165 L. Ed. 2d, at 778; see also Military
procedural --that is, [p]retrial, trial, and
Commission Order No. 1, 11 (Aug. 31,
post-trial procedures--while Common
2005), App. to Brief for Petitioner 46a-72a
Article 3 permits broader consideration of
(hereinafter MCO), an acceptable degree
matters of structure, organization, and
of independence from the Executive is
mechanisms to promote the tribunals
necessary to render a commission
insulation from command influence. Thus
regularly constituted by the standards of
the combined effect of the two statutes
our Nations system of justice. And any
discussed here-- 836 and 821 --is that
suggestion of executive power to interfere
considerations of practicability must
with an ongoing judicial process raises
support departures from court-martial
concerns about the proceedings fairness.
practice. Relevant concerns, as noted
Again, however, courts-martial provide the
earlier, relate to logistical constraints,
relevant
benchmark.
Subject
to
accommodation of witnesses, security of
constitutional limitations, see Ex parte
the proceedings, and the like, not mere
Milligan, 71 U.S. 2, 4 Wall. 2, 18 L. Ed.
expedience
or
convenience.
This
281 (1866), Congress has the power and determination, of course, must be made
responsibility to determine the necessity
with due regard for the constitutional
for military courts, and to provide the
principle that congressional statutes can be
jurisdiction and procedures applicable to
controlling, including the congressional
them. The guidance Congress has provided
direction that the law of war has a bearing
with respect to courts-martial indicates the
on the determination.
level of independence and procedural rigor
that Congress has deemed necessary, at These principles provide the framework
least as a general matter, in the military for an analysis of the specific military
context.
commission at issue here.
At a minimum a military commission like
the one at issue--a commission specially
convened by the President to try specific
persons without express congressional
authorization--can
be
regularly
constituted by the standards of our military
II
In assessing the validity of Hamdans
military
commission
the
precise
circumstances of this case bear emphasis.
The allegations against Hamdan are
Angelo Tannuzzo
Page 77 of 136
548 U.S. 557, *646; 126 S. Ct. 2749, **2804; 165 L. Ed. 2d 723, ***786
undoubtedly serious. Captured in

Afghanistan during our [***787] Nations
armed conflict with the Taliban and al
Qaeda--a conflict that continues as we
speak--Hamdan stands accused of overt
acts in furtherance of a conspiracy to
commit terrorism: delivering weapons and
ammunition to al Qaeda, acquiring trucks
for use by Usama bin Ladens [**2805]
bodyguards, providing security services to
bin Laden, and receiving weapons training
at a terrorist camp. App. to Pet. for Cert.
65a-67a. Nevertheless, the circumstances
of Hamdans trial present no exigency
requiring special speed or precluding
careful consideration of evidence. For
roughly four years, Hamdan has been
detained at a permanent United States
military base in Guantanamo Bay, Cuba.
And regardless of the outcome of the
criminal proceedings at issue, the
Government claims authority to continue
to detain him based on his status as an
enemy combatant.
Against this background, the Court is
correct to conclude that the military
commission the President has convened to
try Hamdan is unauthorized. Ante, at 625,
631-633, 635, 165 L. Ed. 2d, at 774, 778,
779-780. The following analysis, which
expands on the Courts discussion, explains
my reasons for reaching this conclusion.
[*647] To begin with, the structure and
composition of the military commission

deviate from conventional court-martial
standards. Although these deviations raise
questions about the fairness of the trial, no
evident practical need explains them.
Under the UCMJ, courts-martial are

organized
by
a
convening
authority--either a commanding officer,
the Secretary of Defense, the Secretary
concerned, or the President. 10 U.S.C.
822-824 (2000 ed. and Supp. III). The
convening authority refers charges for trial,
Manual for Courts-Martial, United States,
Rule for Courts-Martial 401 (2005 ed.)
(hereinafter R. C. M.), and selects the
court-martial members who vote on the
guilt or innocence of the accused and
determine the sentence, 10 U.S.C.
825(d)(2), 851-852 (2000 ed.); R. C. M.
503(a). Paralleling this structure, under
MCO
No.
1
an
Appointing
Authority--either the Secretary of
Defense
or
the
Secretarys
designee--establishes
commissions
subject to the order, MCO No. 1, 2,
approves and refers charges to be tried by
those commissions, 4(B)(2)(a), and
appoints commission members who vote
on the conviction and sentence,
4(A)(1)-(3). In addition the Appointing
Authority determines the number of
commission members (at least three),
oversees the chief prosecutor, provides
investigative or other resources to the
defense insofar as he or she deems
necessary for a full and fair trial, approves
or rejects plea agreements, approves or
disapproves communications with news
media by prosecution or defense counsel
(a function shared by the General Counsel
of the Department of Defense), and issues
supplementary commission regulations
(subject to approval by the General Counsel
of the Department of Defense, unless the
Appointing Authority is the Secretary of
Angelo Tannuzzo
Page 78 of 136
548 U.S. 557, *647; 126 S. Ct. 2749, **2805; 165 L. Ed. 2d 723, ***787
Defense). See MCO No. 1, 4(A)(2), at general courts-martial are assigned and
5(H), 6(A)(4), 7(A); Military Commission directly responsible to the Judge Advocate
Instruction No. 3, 5(C) (July 15, 2005) General or the Judge Advocate Generals
(hereinafter
MCI),
available
at designee. R. C. M. 502(c). They must be
www.defenselink.mil/news/Aug2005/d20050811MC13.pdf;
detailed to the court, in accordance with
[*648] MCI No. 4, 5(C) (Sept. 16, applicable regulations, by a person
2005), available at www.defenselink.mil/ assigned as a military judge and directly
news/Oct2005/d20051003MCI4.pdf; MCI responsible to the Judge Advocate General
No. 6, 3(B)(3) (Apr. 15, 2004), available or the Judge Advocate Generals designee.
www.defenselink.mil/news/Apr2004/ R. C. M. 503(b); see also 10 U.S.C.
at
d20040420ins6.pdf [***788] (all Internet 826(c); see generally Weiss v. United States,
materials as visited June 27, 2006, and 510 U.S. 163, 179-181, 114 S. Ct. 752, 127
available in Clerk of Courts case file).
L. Ed. 2d 1 (1994) (discussing provisions
Against the background of these significant that insulat[e] military judges from the
powers for the Appointing Authority, which effects of command influence and thus
in certain respects at least conform to preserve judicial impartiality). Here, by
ordinary court-martial standards, the contrast, the Appointing Authority selects
regulations governing the commissions at the presiding officer, MCO No. 1,
issue make several noteworthy departures. 4(A)(1), (A)(4); [*649] and that officer
At a general court-martial--the only type need only be a judge advocate, that is, a
authorized to impose penalties of more military lawyer, 4(A)(4).
than one years incarceration or to
adjudicate offenses against the law of war,
[**2806] R. C. M. 201(f); 10 U.S.C.
818-820 (2000 ed. and Supp. III) --the
presiding officer who rules on legal issues
must be a military judge. R. C. M.
501(a)(1), 801(a)(4)-(5); 10 U.S.C. 816(1)
(2000 ed., Supp. III); see also R. C. M.
201(f)(2)(B)(ii) (likewise requiring a
military judge for certain other
courts-martial); 10 U.S.C. 819 (2000 ed.
and Supp. III) (same). A military judge is
an officer who is a member of a state or
federal bar and has been specially certified
for judicial duties by the Judge Advocate
General for the officers Armed Service. R.
C. M. 502(c); 10 U.S.C. 826(b). To
protect their independence, military judges
The Appointing Authority, moreover,

exercises supervisory powers that continue
during trial. Any interlocutory question
the disposition of which would effect a
termination of proceedings with respect to
a charge is subject to decision not by the
presiding officer, but by the Appointing
Authority. 4(A)(5)(e) (stating that the
presiding officer shall certify such
questions to the Appointing Authority).
Other interlocutory questions may be
certified to the Appointing Authority as the
presiding officer deems appropriate. Ibid.
While in some circumstances the
Government may appeal certain rulings at
a court-martial--including an order or
ruling that terminates the proceedings with
respect to a charge or specification, R. C.
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Page 79 of 136
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M. 908(a); see also 10 U.S.C. 862(a)

--the appeals go to a body called the Court
of Criminal Appeals, not to the convening
authority. R. C. M. 908; 10 U.S.C.
862(b); see also R. C. M. 1107 (requiring
the convening authority to approve or
disapprove the findings and sentence of a
court-martial but providing for such action
only after entry of sentence and restricting
actions that increase penalties); 10 U.S.C.
860 (same); cf. 837(a) (barring
command influence on court-martial
actions). The Court of Criminal Appeals
functions as the militarys intermediate
appeals court; it is established by the Judge
Advocate General for each Armed Service
and composed of appellate military
[***789] judges. R. C. M. 1203; 10 U.S.C.
866. This is another means in which, by
structure and tradition, the court-martial
process is insulated from those who have
an interest in the outcome of the
proceedings.
Finally, in addition to these powers with
respect to the presiding officer, the
Appointing Authority has greater flexibility
in appointing commission members. While
a general court-martial requires, absent a
contrary election by the accused, at least
five members, R. C. M. 501(a)(1); 10
U.S.C. 816(1) (2000 ed. and Supp. III),
the Appointing Authority [*650] here is
free, as noted earlier, to select as few as
three. MCO No. 1, 4(A)(2). This
difference may affect the deliberative
process and the prosecutions burden of
persuasion.
As compared to the role of the convening
authority in a court-martial, the greater
powers of the Appointing Authority

here--including even the resolution of
dispositive [**2807] issues in the middle
of the trial--raise concerns that the
commissions decisionmaking may not be
neutral. If the differences are supported by
some practical need beyond the goal of
constant and ongoing supervision, that need
is neither apparent from the record nor
established
by
the
Governments
submissions.
It is no answer that, at the end of the day,
the Detainee Treatment Act of 2005 (DTA),
119
Stat.
2739,
affords
military-commission defendants the
opportunity for judicial review in federal
court. As the Court is correct to observe,
the scope of that review is limited, DTA
1005(e)(3)(D), id., at 2743; see also ante,
at 573-574, 165 L. Ed. 2d, at 742-743, and
the review is not automatic if the
defendants sentence is under 10 years,
1005(e)(3)(B), 119 Stat. 2743. Also,
provisions for review of legal issues after
trial cannot correct for structural defects,
such as the role of the Appointing
Authority, that can cast doubt on the
factfinding process and the presiding
judges exercise of discretion during trial.
Before military-commission defendants
may obtain judicial review, furthermore,
they must navigate a military review
process that again raises fairness concerns.
At the outset, the Appointing Authority
(unless the Appointing Authority is the
Secretary of Defense) performs an
administrative review of undefined scope,
ordering any supplementary proceedings
deemed necessary. MCO No. 1. 6(H)(3).
Angelo Tannuzzo
Page 80 of 136
548 U.S. 557, *650; 126 S. Ct. 2749, **2807; 165 L. Ed. 2d 723, ***789
After that the case is referred to a

three-member Review Panel composed of
officers selected by the Secretary of
Defense. 6(H)(4); MCI No. 9, 4(B)
(Oct.
11,
2005),
available
at
www.defenselink.mil/news/Oct2005/
d20051014MCI9.pdf. Though the Review
Panel may return the case for further
[*651] proceedings only if a majority
form[s] a definite and firm conviction that
a material error of law occurred, MCO
No. 1, 6(H)(4); MCI No. 9, 4(C)(1)(a),
only one member must have experience
as a judge, MCO No. 1, 6(H)(4);
nothing in the regulations requires that
other panel members have legal training.
By comparison to the review of
court-martial judgments performed by such
independent bodies as the Judge Advocate
General, the Court of Criminal Appeals,
and the Court of Appeals for the Armed
Forces, 10 U.S.C. 862, 864, 866, 867,
869, the review process here lacks
structural protections designed to help
ensure impartiality.
These structural differences between the
military
commissions
and
courts-martial--the
concentration
of
[***790]
functions, including legal
decisionmaking, in a single executive
official; the less rigorous standards for
composition of the tribunal; and the
creation of special review procedures in
place of institutions created and regulated
by Congress--remove safeguards that are
important to the fairness of the proceedings
and the independence of the court.
Congress has prescribed these guarantees
for courts-martial; and no evident practical
need explains the departures here. For

these reasons the commission cannot be
considered regularly constituted under
United States law and thus does not satisfy
Congress requirement that military
commissions conform to the law of war.
Apart from these structural issues,
moreover, the basic procedures for the
commissions deviate from procedures for
courts-martial, in violation of 836(b). As
the Court explains, ante, at 614-615, 623,
165 L. Ed. 2d, at 767-768, 773, the MCO
abandons the detailed Military Rules of
Evidence, which are modeled on the
Federal Rules of Evidence in conformity
with 836(a)s requirement of presumptive
compliance with district-court rules.
Instead, the order imposes just one
evidentiary rule: Evidence shall be
admitted if . . . the evidence would have
probative [**2808] value to a reasonable
person, MCO No. 1, 6(D)(1). Although
it is true some military commissions
applied [*652] an amorphous evidence
standard in the past, see, e.g., 1 Law
Reports 117-118 (discussing World War II
military-commission orders); Exec. Order
No. 9185, 7 Fed. Reg. 5103 (1942) (order
convening military commission to try Nazi
saboteurs), the evidentiary rules for those
commissions were adopted before Congress
enacted the uniformity requirement of 10
U.S.C. 836(b) as part of the UCMJ, see
Act of May 5, 1950, ch. 169, 64 Stat. 107,
120, 149. And while some flexibility may
be necessary to permit trial of battlefield
captives like Hamdan, military statutes and
rules already provide for introduction of
Angelo Tannuzzo
Page 81 of 136
548 U.S. 557, *652; 126 S. Ct. 2749, **2808; 165 L. Ed. 2d 723, ***790
deposition testimony for absent witnesses,

10 U.S.C. 849(d); R. C. M. 702, and use
of classified information, Military Rule
Evid. 505. Indeed, the deposition-testimony
provision specifically mentions military
commissions and thus is one of the
provisions the Government concedes must
be followed by the commission at issue.
See ante, at ____, 165 L. Ed. 2d, at
771-772. That provision authorizes
admission of deposition testimony only if
the witness is absent for specified reasons,
849(d) --a requirement that makes no
sense if military commissions may consider
all probative evidence. Whether or not this
conflict renders the rules at issue contrary
to or inconsistent with the UCMJ under
836(a), it creates a uniformity problem
under 836(b)
military-commission members still may

view it. In another departure from
court-martial practice the military
commission members may object to the
presiding officers evidence rulings and
determine themselves, by majority vote,
whether to admit the evidence. MCO No.
1, 6(D)(1); cf. R. C. M. 801(a)(4), (e)(1)
(providing that the military judge at a
court-martial determines all questions of
law).
As the Court explains, the Government has

made no demonstration of practical need
for these special rules and procedures,
either in this particular case or as to the
military commissions in general, ante, at
622-624, 165 L. Ed. 2d, at 772-773; nor is
any such need self-evident. For all the
Governments regulations and submissions
The rule here could permit admission of reveal, it would be feasible for most, if not
multiple hearsay and other forms of all, of the conventional military evidence
evidence generally prohibited on grounds rules and procedures to be followed.
of unreliability. Indeed, the commission In sum, as presently structured, Hamdans
regulations specifically contemplate military commission exceeds the bounds
admission of unsworn written statements, Congress has placed on the Presidents
MCO No. 1, 6(D)(3); and they make no authority in Articles 36 and 21 of the
provision for exclusion of coerced UCMJ, 10 U.S.C. 836, 821. Because
declarations save those established to have Congress has prescribed these limits,
been made as a result of torture, MCI No. Congress can change them, requiring a
10, 3(A) (Mar. 24, 2006), available at new analysis consistent with the
www.defenselink.
mil/news/Mar2006/ Constitution and other governing laws. At
d20060327MCI10.pdf; cf. Military Rule this time, however, we must apply the
Evid. 304(c)(3) (generally barring use of standards Congress has provided. By those
statements obtained through the use of standards the military commission is
coercion, unlawful influence, or unlawful deficient.
inducement); 10 U.S.C. 831(d) [***791]
(same). Besides, even if [*653] evidence III
is deemed nonprobative by the presiding In light of the conclusion that the military
officer
at
Hamdans
trial,
the commission here is unauthorized under
Angelo Tannuzzo
Page 82 of 136
548 U.S. 557, *653; 126 S. Ct. 2749, **2809; 165 L. Ed. 2d 723, ***791
the UCMJ, I see no need to

consider several further issues addressed
in the plurality opinion by Justice Stevens
and the dissent by Justice Thomas.
[**2809]
First, I would not decide whether Common

Article 3s standard--a regularly
indispensable by civilized peoples, 6 U.
S. T., at 3320 (P (1)(d))--necessarily [*654]
requires that the accused have the right to
be present at all stages of a criminal trial.
As Justice Stevens explains, MCO No. 1
authorizes exclusion of the accused from
the proceedings if the presiding officer
determines that, among other things,
protection of classified information so
requires. See 6(B)(3), (D)(5); ante, at
613-614, 165 L. Ed. 2d, at 767. Justice
Stevens observes that these regulations
create the possibility of a conviction and
sentence based on evidence Hamdan has
not seen or heard--a possibility the plurality
is correct to consider troubling. Ante, at
634-635, n 67, 65 L. Ed. 2d, at 779
(collecting cases); see also In re Oliver,
333 U.S. 257, 277, 68 S. Ct. 499, 92 L. Ed.
682 (1948) (finding no support for
sustaining petitioners conviction of
contempt of court upon testimony given in
petitioners absence).
As the dissent by Justice Thomas points
out, however, the regulations bar the
presiding officer from admitting secret
evidence if doing so would deprive the
accused of a full and fair trial. MCO No.
1, 6(D)(5)(b); see also post, at 722-723,
165 L. Ed. 2d, at 834. This fairness
determination, moreover, is unambiguously

subject to judicial review under the DTA.
See 1005(e)(3)(D)(i), 119 Stat. 2743
(allowing review of compliance with the
standards and procedures in MCO No.
1). The evidentiary proceedings at
Hamdans [***792] trial have yet to
commence, and it remains to be seen
whether he will suffer any prejudicial
exclusion.
There should be reluctance, furthermore,
to reach unnecessarily the question whether,
as the plurality seems to conclude, ante, at
633, 165 L. Ed. 2d, at 778-779, Article 75
of Protocol I to the Geneva Conventions is
binding law notwithstanding the earlier
decision by our Government not to accede
to the Protocol. For all these reasons, and
without detracting from the importance of
the right of presence, I would rely on other
deficiencies noted here and in the opinion
by the Court--deficiencies that relate to the
structure and procedure of the commission
and that inevitably will affect the
proceedings--as the basis for finding the
military commissions lack authorization
[*655] under 10 U.S.C. 836 and fail to
be regularly constituted under Common
Article 3 and 821.
I likewise see no need to address the
validity of the conspiracy charge against
Hamdan--an issue addressed at length in
Part V of Justice Stevens opinion and in
Part II-C of Justice Thomas dissent. See
ante, at 600-613, 165 L. Ed. 2d, at 759-766;
post, at 689-704, 165 L. Ed. 2d, at 813-822.
In light of the conclusion that the military
commissions at issue are unauthorized,
Angelo Tannuzzo
Page 83 of 136
548 U.S. 557, *655; 126 S. Ct. 2749, **2809; 165 L. Ed. 2d 723, ***792
Congress may choose to provide further

guidance in this area. Congress, not the
Court, is the branch in the better position
to undertake the sensitive task of
establishing a principle not inconsistent
with the national interest or international
justice. Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 428, 84 S. Ct.
923, 11 L. Ed. 2d 804 (1964).
Finally, for the same reason, I express no
view on the merits of other limitations on
military commissions described as elements
of the common law of war in Part V of
Justice Stevens opinion. See ante, at
595-600, 611-613, 165 L. Ed. 2d, at
755-759, 765-766; post, at 683-689, 165 L.
Ed. 2d, at 795-799(Thomas, J., dissenting).
With these observations I join the Courts
opinion with the exception of Parts V and
VI-D-iv.
Dissent by: SCALIA; THOMAS; ALITO
Dissent
whom Justice Thomas and
Justice Alito join, dissenting.
[**2810]
On December 30, 2005, Congress enacted

the Detainee Treatment Act (DTA). It
unambiguously provides that, as of that
date, no court, justice, or judge shall
have jurisdiction to consider the habeas
application of a Guantanamo Bay detainee.
Notwithstanding this plain directive, the
Court today concludes that, on what it calls
the statutes most natural reading, every
court, justice, or judge before whom
such a habeas application was pending on
December 30 has jurisdiction to hear,

consider, and render judgment on it. This
conclusion is patently erroneous. And even
if it were not, the jurisdiction supposedly
retained should, in an exercise of sound
equitable discretion, not be exercised.
[*656] I
A
The DTA provides: [N]o court, justice, or
judge shall have jurisdiction to hear or
consider an application for a writ of habeas
corpus filed by or on behalf of an alien
detained by the Department of Defense at
Guantanamo Bay, Cuba. 1005(e)(1),
119 Stat. 2742 [***793] (internal division
omitted). This provision t[ook] effect on
the date of the enactment of this Act,
1005(h)(1), id., at 2743, which was
December 30, 2005. As of that date, then,
no court had jurisdiction to hear or
consider the merits of petitioners habeas
application. This repeal of jurisdiction is
simply not ambiguous as between pending
and future cases. It prohibits any exercise
of jurisdiction, and it became effective as
to all cases last December 30. It is also
perfectly clear that the phrase no court,
justice, or judge includes this Court and
its Members, and that by exercising our
appellate jurisdiction in this case we are
hear[ing] or consider[ing] . . . an
application for a writ of habeas corpus.
An ancient and unbroken line of authority
attests that statutes ousting jurisdiction
unambiguously apply to cases pending at
their effective date. For example, in Bruner
v. United States, 343 U.S. 112, 72 S. Ct.
Angelo Tannuzzo
Page 84 of 136
548 U.S. 557, *656; 126 S. Ct. 2749, **2810; 165 L. Ed. 2d 723, ***793
581, 96 L. Ed. 786 (1952), we granted

certiorari to consider whether the Tucker
Acts provision denying district court
jurisdiction over suits by officers of the
United States barred a suit by an employee
of the United States. After we granted
certiorari, Congress amended the Tucker
Act by adding suits by employees to
the provision barring jurisdiction over suits
by officers. Id., at 114, 72 S. Ct. 581, 96 L.
Ed. 786. This statute narrowing the
jurisdiction of the district courts became
effective while the case was pending
before us, ibid., and made no explicit
reference to pending cases. Because the
statute did not reserve jurisdiction over
pending cases, id., at 115, 72 S. Ct. 581,
96 L. Ed. 786, we held that it clearly
ousted jurisdiction over them. Summarizing
centuries of practice, we said: This rule
[*657] --that, when a law conferring
jurisdiction is repealed without any
reservation as to pending cases, all cases
fall with the law--has been adhered to
consistently by this Court. Id., at 116-117,
72 S. Ct. 581, 96 L. Ed. 786. See also
Landgraf v. USI Film Products, 511 U.S.
244, 274, 114 S. Ct. 1483, 128 L. Ed. 2d
229 (1994) (opinion for the Court by
Stevens, J.) (We have regularly applied
intervening statutes conferring or ousting
jurisdiction, whether or not jurisdiction lay
when the underlying conduct occurred or
when the suit was filed).
This venerable rule that statutes ousting
jurisdiction terminate jurisdiction in
pending cases is not, as todays opinion for
the Court would have it, a judge-made
presumption against jurisdiction, ante, at
576, 165 L. Ed. 2d, at 744, that we have

invented to resolve an ambiguity in the
statutes. It is simple [**2811] recognition
of the reality that the plain import of a
statute repealing jurisdiction is to eliminate
the power to consider and render
judgment--in an already pending case no
less than in a case yet to be filed.
Without jurisdiction the court
cannot proceed at all in any cause.
Jurisdiction is power to declare the
law, and when it ceases to exist, the
only function remaining to the court
is that of announcing the fact and
dismissing the cause. And this is not
less clear upon authority than upon
principle. Ex parte McCardle, 74
U.S. 506, 7 Wall. 506, 514, 19 L. Ed.
264 (1869) (emphasis added).
To alter this plain meaning, our cases have
required an explicit reservation of pending
cases in the jurisdiction-repealing statute.
For example, Bruner, as mentioned, looked
to whether Congress made any reservation
[***794] as to pending cases. 343 U.S.,
at 116-117, 72 S. Ct. 581, 96 L. Ed. 786;
see also id., at 115, 72 S. Ct. 581, 96 L. Ed.
786 (Congress made no provision for
cases pending at the effective date of the
Act withdrawing jurisdiction and, for this
reason, Courts of Appeals ordered pending
cases terminated for want of jurisdiction).
Likewise, in Hallowell v. Commons, 239
U.S. 506, 36 S. Ct. 202, 60 L. Ed. 409
(1916), Justice Holmes relied on the fact
[*658]
that the jurisdiction-ousting
provision made no exception for pending
litigation, but purported to be universal,
Angelo Tannuzzo
Page 85 of 136
548 U.S. 557, *658; 126 S. Ct. 2749, **2811; 165 L. Ed. 2d 723, ***794
id., at 508, 36 S. Ct. 202, 60 L. Ed. 409.

And in Insurance Co. v. Ritchie, 72 U.S.
541, 5 Wall. 541, 18 L. Ed. 540 (1867), we
again relied on the fact that the
jurisdictional repeal was made without
any saving of such causes as that before
us, id., at 544, 18 L. Ed. 540. As in
Bruner, Hallowell, and Ritchie, the DTAs
directive that no court, justice, or judge
shall have jurisdiction, 1005(e)(1), 119
Stat. 2742, is made without any
reservation as to pending cases and
purport[s] to be universal. What we stated
in an earlier case remains true here:
[W]hen, if it had been the intention to
confine the operation of [the jurisdictional
repeal] . . . to cases not pending, it would
have been so easy to have said so, we must
presume that Congress meant the language
employed should have its usual and
ordinary signification, and that the old law
should be unconditionally repealed.
Railroad Co. v. Grant, 98 U.S. 398, 403,
25 L. Ed. 231 (1879).
The Court claims that I rea[d] too much
into the Bruner line of cases, ante, at 577,
n 7, 165 L. Ed. 2d, at 745, and that the
Bruner rule has never been an inflexible
trump, ante, at 584, 165 L. Ed. 2d, at 749.
But the Court sorely misdescribes
Bruner--as if it were a kind of early-day
Lindh v. Murphy, 521 U.S. 320, 117 S. Ct.
2059, 138 L. Ed. 2d 481 (1997), resolving
statutory ambiguity by oblique negative
inference. On the contrary, as described
above, Bruner stated its holding as an
unqualified rule, which has been adhered
to consistently by this Court. 343 U.S., at

116-117, 72 S. Ct. 581, 96 L. Ed. 786.
Though Bruner referred to an express
saving clause elsewhere in the statute, id.,
at 115, n. 7, 72 S. Ct. 581, 96 L. Ed. 786,
it disavowed any reliance on such oblique
indicators to vary the plain meaning,
quoting Ritchie at length: It is quite
possible that this effect of the
[jurisdiction-stripping statute] was not
contemplated by Congress. . . . [B]ut when
terms are unambiguous we may not
speculate on probabilities of intention.
343 U.S., at 116, 72 S. Ct. 581, 96 L. Ed.
786 (quoting 72 U.S., at 544-545, 5 Wall.,
at 544-545, 18 L. Ed. 540).
The Court also attempts to evade the
Bruner line of cases by asserting that the
presumption [of application to pending
[*659] cases] that these cases have applied
is more accurately viewed as the
nonapplication
of
another
presumption--viz., the presumption against
retroactivity--in
certain
limited
circumstances. Ante, at 576, 165 L. Ed.
2d, at 744. I have already explained that
what the Court calls a presumption is
simply the acknowledgment of the
unambiguous [**2812] meaning of such
provisions. But even taking it to be what
the Court says, the effect upon the present
case would be the same. Prospective
applications of a statute are effective
upon the statutes effective date; that is
what an effective-date [***795] provision
like 1005(h)(1) means. 1 [S]hall take
effect upon enactment is presumed to
The Court apparently believes that the effective-date provision means nothing at all. That paragraph (1), along with paragraphs
(2) and (3), is to take effect on the date of the enactment, DTA 1005(h)(1), 119 Stat. 2743, is not dispositive, says the Court,
Angelo Tannuzzo
Page 86 of 136
548 U.S. 557, *659; 126 S. Ct. 2749, **2812; 165 L. Ed. 2d 723, ***795
mean shall have prospective effect upon

enactment, and that presumption is too
strong to be overcome by any negative
inference [drawn from other provisions of
the statute]. Landgraf, Supra, at 288, 114
S. Ct. 1483, 128 L. Ed. 2d 229 (Scalia, J.,
concurring in judgments). The Courts
nonapplication of . . . the presumption
against retroactivity to 1005(e)(1) is
thus just another way of stating that the
statute takes immediate effect in pending
cases.
Though the Court resists the Bruner rule, it
cannot cite a single case in the history of
Anglo-American law (before [*660] today)
in which a jurisdiction-stripping provision
was denied immediate effect in pending
cases, absent an explicit statutory
reservation. By contrast, the cases granting
such immediate effect are legion, and they
repeatedly rely on the plain language of
the jurisdictional repeal as an inflexible
trump, ante, at 584, 165 L. Ed. 2d, at 749,
by requiring an express reservation to save
pending cases. See, e.g., Bruner, supra, at
115, 72 S. Ct. 581, 96 L. Ed. 786; Kline v.
Burke Constr. Co., 260 U.S. 226, 234, 43
S. Ct. 79, 67 L. Ed. 226 (1922); Hallowell,
239 U.S., at 508, 36 S. Ct. 202, 60 L. Ed.
409; Gwin v. United States, 184 U.S. 669,
675, 22 S. Ct. 526, 46 L. Ed. 741 (1902);
Gurnee v. Patrick County, 137 U.S. 141,
144, 11 S. Ct. 34, 34 L. Ed. 601 (1890);
Sherman v. Grinnell, 123 U.S. 679, 680, 8

S. Ct. 260, 31 L. Ed. 278 (1887); Railroad
Co. v. Grant, supra, at 403, 25 L. Ed. 231,
Assessors v. Osbornes, 76 U.S. 567, 9
Wall. 567, 575, 19 L. Ed. 748 (1870); Ex
parte McCardle, 74 U.S. 506, 7 Wall., at
514, 19 L. Ed. 264; Ritchie, supra, at 544,
18 L. Ed. 540; Norris v. Crocker, 54 U.S.
429, 13 How. 429, 440, 14 L. Ed. 210
(1852); Yeaton v. United States, 9 U.S. 281,
5 Cranch 281, 3 L. Ed. 101 (1809)
(Marshall, C. J.), discussed in Gwin, supra,
at 675; King v. Justices of the Peace of
London, 3 Burr. 1456, 1457, 97 Eng. Rep.
924, 925 (K. B. 1764). Cf. National
Exchange Bank of Baltimore v. Peters, 144
U.S. 570, 572, 12 S. Ct. 767, 36 L. Ed. 545
(1892).
B
Disregarding the plain meaning of
1005(e)(1) and the requirement of explicit
exception set forth in the foregoing cases,
the Court instead favors a negative
inference . . . from the exclusion of
language from one statutory provision that
is included in other provisions of the same
statute, ante, at 578, 165 L. Ed. 2d, at
745. Specifically, it appeals to the fact that
1005(e)(2) and (e)(3) are explicitly made
applicable to pending cases (by
1005(h)(2)). A negative inference of
[***796] the sort the Court relies upon
ante, at 579, n 9, 165 L. Ed. 2d, at 746. The Courts authority for this conclusion is its quote from INS v. St. Cyr, 533 U.S. 289,
317, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001), to the effect that a statement that a statute will become effective on a certain date
does not even arguably suggest that it has any application to conduct that occurred at an earlier date. Ante, at 579, n 9, 165 L. Ed.
2d, at 746 (emphasis added and internal quotation marks omitted). But this quote merely restates the obvious: An effective-date
provision does not render a statute applicable to conduct that occurred at an earlier date, but of course it renders the statute
applicable to conduct that occurs on the effective date and all future dates--such as the Courts exercise of jurisdiction here. The
Court seems to suggest that, because the effective-date provision does not authorize retroactive application, it also fails to authorize
prospective application (and is thus useless verbiage). This cannot be true.
Angelo Tannuzzo
Page 87 of 136
548 U.S. 557, *660; 126 S. Ct. 2749, **2812; 165 L. Ed. 2d 723, ***796
might clarify the meaning of an ambiguous

[**2813] provision, but since the meaning
of 1005(e)(1) is entirely clear, the omitted
language in that context would have been
redundant.
Even if 1005(e)(1) were at all ambiguous
in its application to pending cases, the
negative inference from 1005(h)(2)
touted by the Court would have no force.
The numerous [*661] cases in the Bruner
line would at least create a powerful default
presumption against jurisdiction, ante, at
576, 165 L. Ed. 2d, at 744. The negative
inference urged by the Court would be a
particularly awkward and indirect way of
rebutting such a longstanding and
consistent practice. This is especially true
since the negative inference that might be
drawn from 1005(h)(2)s specification
that certain provisions shall apply to
pending cases is matched by a negative
inference in the opposite direction that
might be drawn from 1005(b)(2), which
provides that certain provisions shall not
apply to pending cases.
The Courts reliance on our opinion in
Lindh v. Murphy, 521 U.S. 320, 117 S. Ct.
2059, 138 L. Ed. 2d 481 (1997), is utterly
misplaced. Lindh involved two provisions
of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA): a set of
amendments to chapter 153 of the federal
habeas statute that redefined the scope of
collateral review by federal habeas courts;
and a provision creating a new chapter 154
in the habeas statute specially to govern
federal collateral review of state capital
cases. See 521 U.S., at 326-327, 117 S. Ct.
2059, 138 L. Ed. 2d 481. The latter

provision explicitly rendered the new
chapter 154 applicable to cases pending at
the time of AEDPAs enactment; the former
made no specific reference to pending
cases. Id., at 327, 117 S. Ct. 2059, 138 L.
Ed. 2d 481. In Lindh, we drew a negative
inference from chapter 154s explicit
reference to pending cases, to conclude
that the chapter 153 amendments did not
apply in pending cases. It was essential to
our reasoning, however, that both
provisions appeared to be identically
difficult to classify under our retroactivity
cases. First, we noted that, after Landgraf,
there was reason for Congress to suppose
that an explicit statement was required to
render the amendments to chapter 154
applicable in pending cases, because the
new chapter 154 will have substantive as
well as purely procedural effects. 521
U.S., at 327, 117 S. Ct. 2059, 138 L. Ed. 2d
481. The next step--and the critical step--in
our reasoning was that Congress had
identical reason to suppose that an explicit
statement would be required to apply the
chapter 153 [*662] amendments to
pending cases, but did not provide it. Id.,
at 329, 117 S. Ct. 2059, 138 L. Ed. 2d 481.
The negative inference of Lindh rested on
the fact that [n]othing . . . but a different
intent explain[ed] the different treatment.
Ibid.
Here, by contrast, there is ample reason for
the
different
treatment.
The
exclusive-review provisions of the DTA,
unlike both 1005(e)(1) and the AEDPA
amendments in Lindh, confer new
jurisdiction (in the D. C. Circuit) where
Angelo Tannuzzo
Page 88 of 136
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there was none before. For better or for

worse, our recent cases have contrasted
jurisdiction-creating provisions with
jurisdiction-ousting provisions, retaining
the venerable rule that the latter are not
retroactive even when applied in pending
cases, but strongly indicating that the
former are typically retroactive. For
example, we stated in Hughes Aircraft
[***797] Co. v. United States ex rel.
Schumer, 520 U.S. 939, 951, 117 S. Ct.
1871, 138 L. Ed. 2d 135 (1997), that a
statute that creates jurisdiction where none
previously existed is as much subject to
our presumption against retroactivity as
any other. See also Republic of Austria v.
Altmann, 541 U.S. 677, 695, 124 S. Ct.
2240, 159 L. Ed. 2d 1 (2004) (opinion for
the Court by Stevens, J.); id., at 722, 124
S. Ct. 2240, 159 L. Ed. 2d 1 (Kennedy, J.,
dissenting). The Court gives our
retroactivity jurisprudence [**2814] a
dazzling clarity in asserting that
subsections (e)(2) and (e)(3) confer

questions under our precedents. 2 Ante, at
582, 165 L. Ed. 2d, at 747-748. [*663]
This statement rises to the level of sarcasm
when one considers its authors description
of the governing test of our retroactivity
jurisprudence:
The conclusion that a particular
rule operates retroactively comes
at the end of a process of judgment
concerning the nature and extent of
the change in the law and the degree
of connection between the operation
of the new rule and a relevant past
event. Any test of retroactivity will
leave room for disagreement in hard
cases, and is unlikely to classify the
enormous variety of legal changes
with perfect philosophical clarity.
However, retroactivity is a matter on
which judges tend to have sound . .
. instinct[s], . . . and familiar
considerations of fair notice,
reasonable reliance, and settled
A comparison with Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997), shows this not to be true.
Subsections (e)(2) and (e)(3) of 1005 resemble the provisions of AEDPA at issue in Lindh (whose retroactivity as applied to
pending cases the Lindh majority did not rule upon, seeid., at 326, 117 S. Ct. 2059, 138 L. Ed. 2d 481), in that they g[o] beyond
mere procedure, id., at 327, 117 S. Ct. 2059, 138 L. Ed. 2d 481. They impose novel and unprecedented disabilities on the
Executive Branch in its conduct of military affairs. Subsection (e)(2) imposes judicial review on the Combatant Status Review
Tribunals (CSRTs), whose implementing order did not subject them to review by Article III courts. See Memorandum from Deputy
Secretary of Defense Paul Wolfowitz re: Order Establishing Combatant Status Review Tribunals, p., 3 h (July 7, 2004), available
at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf (all Internet materials as visited June 27, 2006, and available in
Clerk of Courts case file). Subsection (e)(3) authorizes the D. C. Circuit to review the validity of any final decision rendered
pursuant to Military Commission Order No. 1, 1005(e)(3)(A), 119 Stat. 2743. Historically, federal courts have never reviewed the
validity of the final decision of any military commission; their jurisdiction has been restricted to considering the commissions
lawful authority to hear, decide and condemn, In re Yamashita, 327 U.S. 1, 8, 66 S. Ct. 340, 90 L. Ed. 499 (1946) (emphasis
added). See also Johnson v. Eisentrager, 339 U.S. 763, 786-787, 70 S. Ct. 936, 94 L. Ed. 1255 (1950). Thus, contrary to the
Courts suggestion, ante, at 581, 582, 165 L. Ed. 2d 747-748 subsections (e)(2) and (e)(3) confer new jurisdiction: They impose
judicial oversight on a traditionally unreviewable exercise of military authority by the Commander in Chief. They arguably spea[k]
not just to the power of a particular court but to . . . substantive rights . . . as well, Hughes Aircraft Co. v. United States ex rel.
Schumer, 520 U.S. 939, 951, 117 S. Ct. 1871, 138 L. Ed. 2d 135 (1997) --namely, the unreviewable powers of the President. Our
recent cases had reiterated that the Executive is protected by the presumption against retroactivity in such comparatively trivial
contexts as suits for tax refunds and increased pay, see Landgraf v. USI Film Products, 511 U.S. 244, 271, n. 25, 114 S. Ct. 1483,
128 L. Ed. 2d 229 (1994).
Angelo Tannuzzo
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expectations offer sound guidance.

Landgraf, 511 U.S., at 270, 114 S.
Ct. 1483, 128 L. Ed. 2d 229 (opinion
for the Court by Stevens, J.).
The only familiar consideration,
reasonable reliance, and settled
expectation I am aware of pertaining to
the present [*664] case is the rule of
[***798]
Bruner--applicable to
1005(e)(1), but not to 1005(e)(2) and
(e)(3)--which the Court stubbornly
disregards. It is utterly beyond question
that 1005(e)(2)s and (3)s application to
pending
cases
(without
explicit
specification) was not as clear as
1005(e)(1)s. That is alone enough to
explain the difference in treatment.
Another obvious reason for the
specification was to stave off any
Suspension Clause problems raised by the
immediately effective ouster of jurisdiction
brought about by subsection (e)(1). That is
to say, specification of the immediate
effectiveness [**2815] of subsections (e)(2)
and (e)(3) (which, unlike subsection (e)(1),
would not fall within the Bruner rule and
would not automatically be deemed
applicable in pending cases) could
reasonably have been thought essential to
be sure of replacing the habeas jurisdiction
that subsection (e)(1) eliminated in pending
cases with an adequate substitute. See
infra, at 670-672, 165 L. Ed. 2d, at
746-748.
These considerations by no means prove
that an explicit statement would be required
to render subsections (e)(2) and (e)(3)
applicable in pending cases. But they surely
gave Congress ample reason to doubt that

their application in pending cases would
unfold as naturally as the Court glibly
assumes. In any event, even if it were true
that subsections (e)(2) and (e)(3) confer
questions, ante, at 582, 165 L. Ed. 2d, at
747-748, this would merely establish that
subsection (h)(2)s reference to pending
cases was wholly superfluous when applied
to subsections (e)(2) and (e)(3), just as it
would have been for subsection (e)(1).
Lindhs negative inference makes sense
only when Congress would have perceived
the wisdom of being explicit with respect
to the immediate application of both of
two statutory provisions, 521 U.S., at 328,
117 S. Ct. 2059, 138 L. Ed. 2d 481, but
chose to be explicit only for one of
them--not when it would have perceived
no need to be explicit for both, but enacted
a redundancy only for one.
[*665] In short, it is simply untrue that
Congress should have been just as

concerned about specifying the
application of 1005(e)(1) to pending
cases, ante, at 578, 165 L. Ed. 2d, at
745-746 (quoting Lindh, supra, at 329, 117
S. Ct. 2059, 138 L. Ed. 2d 481). In fact, the
negative-inference approach of Lindh is
particularly inappropriate in this case,
because the negative inference from
1005(h)(2) would tend to defeat the purpose
of the very provisions that are explicitly
rendered applicable in pending cases,
1005(e)(2) and (3). Those provisions
purport to vest exclusive jurisdiction in
the D. C. Circuit to consider the claims
Angelo Tannuzzo
Page 90 of 136
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raised by petitioner here. See infra, at

670-672, 165 L. Ed. 2d, at 746-748. By
drawing a negative inference a la Lindh,
the Court supplants this exclusive-review
mechanism with a dual-review mechanism
for petitioners who were expeditious
enough to file applications challenging the
CSRTs or military commissions before
December 30, 2005. Whatever the force of
Lindhs negative inference in other cases,
it surely should not apply here to defeat the
purpose of the very provision from which
the negative inference is drawn.
C
Worst of all is the Courts reliance on the
legislative history of the DTA to buttress
its implausible reading of [***799]
1005(e)(1). We have repeatedly held that
such reliance is impermissible where, as
here, the statutory language is
unambiguous. But the Court nevertheless
relies both on floor statements from the
Senate and (quite heavily) on the drafting
history of the DTA. To begin with floor
statements: The Court urges that some
statements made by Senators preceding
passage of the Act lend further support to
the Courts interpretation, citing excerpts
from the floor debate that support its view,
ante, at 580, n 10, 165 L. Ed. 2d, at
746-747. The Court immediately goes on

to discount numerous floor statements by
the DTAs sponsors that flatly contradict
its view, because those statements appear
to have been inserted into the
Congressional Record after the Senate
debate. Ibid. Of course this observation,
even if true, makes no difference [*666]
unless one indulges the fantasy that Senate
floor speeches are attended (like the
Philippics of Demosthenes) by throngs of
eager listeners, instead of being delivered
(like Demosthenes practice sessions on
the beach) alone into a vast emptiness.
Whether the [**2816] floor statements are
spoken where no Senator hears, or written
where no Senator reads, they represent at
most the views of a single Senator. In any
event, the Court greatly exaggerates the
one-sidedness of the portions of the floor
debate that clearly occurred before the
DTAs enactment. Some of the statements
of Senator Graham, a sponsor of the bill,
only make sense on the assumption that
pending cases are covered. 3 And at least
one opponent of the DTA unmistakably
expressed his understanding that it would
terminate our jurisdiction in this very case.
4
(Of course in its discussion of legislative
history the Court wholly ignores the
Presidents signing statement, which
explicitly set forth his understanding that
Because I have described how outrageous these claims are--about the exercise regime, the reading materials--most Americans
would be highly offended to know that terrorists are suing us in our own courts about what they read. 151 Cong. Rec. S12756
(Nov. 14, 2005). Instead of having unlimited habeas corpus opportunities under the Constitution, we give every enemy combatant,
all 500, a chance to go to Federal court, the Circuit Court of Appeals for the District of Columbia. . . . It will be a one-time deal.
Id., at S12754. This Levin-Graham-Kyl amendment allows every detainee under our control to have their day in court. They are
allowed to appeal their convictions. Id., at S12801 (Nov. 15, 2005); see also id., at S12799 (rejecting the notion that an enemy
combatant terrorist al-Qaida member should be able to have access to our Federal courts under habeas like an American citizen).
4
An earlier part of the amendment provides that no court, justice, or judge shall have jurisdiction to consider the application for
writ of habeas corpus. . . . Under the language of exclusive jurisdiction in the DC Circuit, the U.S. Supreme Court would not have
jurisdiction to hear the Hamdan case . . . . Id., at S12796 (statement of Sen. Specter).
Angelo Tannuzzo
Page 91 of 136
548 U.S. 557, *666; 126 S. Ct. 2749, **2816; 165 L. Ed. 2d 723, ***799
the DTA ousted jurisdiction over pending authoritative do not reflec[t] any general
cases. 5 )
agreement. They reflect the now-common
tactic--which the Court once again
[*667] But selectivity is not the greatest
[**2817] rewards--of pursuing through
vice in the Courts use of floor statements floor-speech ipse dixit what could not be
to resolve todays case. These statements achieved through the constitutionally
were made when Members of Congress prescribed method of putting language into
were fully aware that our continuing a bill that a majority of both Houses vote
jurisdiction over this very case was at for and the President signs.
issue. The question was divisive, and floor
statements [***800] made on both sides With regard to the floor statements, at least
were undoubtedly opportunistic and crafted the Court shows some semblance of seemly
solely for use in the briefs in this very shame, tucking away its [*668] reference
litigation. See, e.g., 151 Cong. Rec. to them in a half hearted footnote. Not so
S14257-S14258 (Dec. 21, 2005) (statement for its reliance on the DTAs drafting
of Sen. Levin) (arguing against a reading history, which is displayed prominently,
that would stri[p] the Federal courts of see ante, at 579-580, 165 L. Ed. 2d, at
jurisdiction to consider pending cases, 745-746. I have explained elsewhere that
including the Hamdan case now pending such drafting history is no more legitimate
in the Supreme Court, and urging that or reliable an indicator of the objective
Lindh requires the same negative inference meaning of a statute than any other form of
that the Court indulges today (emphasis legislative history. This case presents a
added)). The Courts reliance on such textbook example of its unreliability. The
statements cannot avoid the appearance of Court, ante, at 579, 165 L. Ed. 2d, at
similar opportunism. In a virtually identical 745-746, trumpets the fact that a bill
context, the author of todays opinion has considered in the Senate included
written for the Court that [t]he legislative redundant language, not included in the
history discloses some frankly partisan DTA as passed, reconfirming that the
statements about the meaning of the final abolition of habeas jurisdiction shall apply
effective date language, but those to any application or other action that is
statements cannot plausibly be read as pending on or after the date of the
reflecting any general agreement. enactment of this Act. 151 Cong. Rec.
Landgraf, 511 U.S., at 262, 114 S. Ct. S12655 (Nov. 10, 2005). But this earlier
1483, 128 L. Ed. 2d 229 (opinion for the version of the bill also differed from the
Court by Stevens, J.). Likewise, the handful DTA in other material respects. Most
of floor statements that the Court treats as notably, it provided for postdecision review
5
[T]he executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction
over any existing or future action, including applications for writs of habeas corpus, described in section 1005. Presidents
Statement on Signing of H. R. 2863, the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in
the Gulf of Mexico, and Pandemic Influenza Act, 2006 (Dec. 30, 2005), available at http://www.whitehouse.gov/news/releases/2005
/12/print/200512308.html.
Angelo Tannuzzo
Page 92 of 136
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by the D. C. Circuit only of the decisions

of CSRTs, not military commissions, ibid.;
and it limited that review to whether the
status determination . . . was consistent
with the procedures and standards specified
by the Secretary of Defense, ibid., not
whether the use of such standards and
procedures . . . is consistent with the
Constitution and laws of the United States,
DTA 1005(e)(2)(C)(ii), 119 Stat. 2742.
To say that what moved Senators to reject
this earlier bill was the action that is
pending provision surpasses the intuitive
powers of even this Courts greatest
Justices. 6 And to think that the House and
the President also had this rejection firmly
in mind is absurd. As always--but especially
in the context of strident, partisan
legislative conflict of the sort that [***801]
characterized
enactment
of
this
legislation--the language of the statute that
was actually passed by both Houses of
Congress and signed by the President is
our only authoritative and only reliable
guidepost.
[*669] D
A final but powerful indication of the fact

that the Court has made a mess of this
statute is the nature of the consequences
that ensue. Though this case concerns a
habeas application challenging a trial by
military commission, DTA 1005(e)(1)
strips the courts of jurisdiction to hear or
consider any application for a writ of
habeas corpus filed by or on behalf of an
alien detained by the Department of
Defense at Guantanamo Bay, Cuba. The

vast majority of pending petitions, no
doubt, do not relate to military commissions
at all, but to more commonly challenged
aspects of detention such as the terms
and conditions of confinement. See Rasul
v. Bush, 542 U.S. 466, 498, 124 S. Ct.
2686, 159 L. Ed. 2d 548 (2004) (Scalia, J.,
dissenting). The Solicitor General
represents that [h]abeas petitions have
been filed on behalf of a purported 600
[Guantanamo Bay] detainees, including
one that seek[s] relief on behalf of every
Guantanamo detainee who has not already
filed an action, Respondents Motion to
Dismiss for Lack of Jurisdiction 20, n 10
(hereinafter Motion to Dismiss). The
Courts interpretation transforms a
provision abolishing jurisdiction over all
habeas
Guantanamo-related [**2818]
petitions into a provision that retains
jurisdiction over cases sufficiently
numerous to keep the courts busy for years
to come.
II
Because I would hold that 1005(e)(1)
unambiguously terminates the jurisdiction
of all courts to hear or consider pending
habeas applications, I must confront
petitioners arguments that the provision,
so interpreted, violates the Suspension
Clause. This claim is easily dispatched. We
stated in Johnson v. Eisentrager, 339 U.S.
763, 768, 70 S. Ct. 936, 94 L. Ed. 1255
(1950):
We are cited to no instance where a
court, in this or any other country
The Court asserts that it cannot be said that the changes to subsection (h)(2) were inconsequential, ante, at 580, n 10, 165 L.
Ed. 2d, at 746, but the Courts sole evidence is the self-serving floor statements that it selectively cites.
Angelo Tannuzzo
Page 93 of 136
548 U.S. 557, *669; 126 S. Ct. 2749, **2818; 165 L. Ed. 2d 723, ***801
where the writ is known, has issued

it on behalf of an alien enemy who,
at no relevant time and in no stage
of his captivity, has been within its
territorial jurisdiction. Nothing in
the text of the Constitution [*670]
extends such a right, nor does
anything in our statutes.
Notwithstanding the ill-considered dicta in
the Courts opinion in Rasul, 542 U.S., at
480-481, 124 S. Ct. 2686, 159 L. Ed. 2d
548, it is clear that Guantanamo Bay,
Cuba, is outside the sovereign territorial
jurisdiction of the United States. See id.,
at 500-505, 124 S. Ct. 2686, 159 L. Ed. 2d
548 (Scalia, J., dissenting). Petitioner, an
enemy alien detained abroad, has no rights
under the Suspension Clause.
But even if petitioner were fully protected
by the Clause, the DTA would create no
suspension problem. This Court has
repeatedly acknowledged that the
substitution of a collateral remedy which is
neither inadequate nor ineffective to test
the legality of a persons detention does
not constitute a suspension of the writ of
habeas corpus. Swain v. Pressley, 430
U.S. 372, 381, 97 S. Ct. 1224, 51 L. Ed. 2d
411 (1977); see also INS v. St. Cyr, 533
U.S. 289, 314, n. 38, 121 S. Ct. 2271, 150
L. Ed. 2d 347 (2001) (Congress could,
without raising any constitutional
questions, provide an [***802] adequate
substitute through the courts of appeals).
Petitioner has made no showing that the
postdecision exclusive review by the D. C.
Circuit provided in 1005(e)(3) is
inadequate to test the legality of his trial by

military commission. His principal
argument is that the exclusive-review
provisions are inadequate because they
foreclose review of the claims he raises
here. Though petitioners brief does not
parse the statutory language, his argument
evidently rests on an erroneously narrow
reading of DTA 1005(e)(3)(D)(ii), 119
Stat. 2743. That provision grants the D. C.
Circuit authority to review, to the extent
the Constitution and laws of the United
States are applicable, whether the use of
such standards and procedures to reach the
final decision is consistent with the
Constitution and laws of the United States.
In the quoted text, the phrase such
standards and procedures refers to the
standards and procedures specified in the
military order referred to in subparagraph
(A), namely, Military Commission Order
No. 1, dated August 31, 2005 (or any
successor military order). DTA
1005(e)(3)(D)(i), [*671] (e)(3)(A), ibid.
This Military Commission Order (Order
No. 1) is the Department of Defenses
fundamental implementing order for the
Presidents order authorizing trials by
military commission. Order No. 1
establishes commissions, 2; delineates
their jurisdiction, 3; provides for their
officers, 4(A); provides for their
prosecution and defense counsel, 4(B),
(C); lays out all their procedures, both
pretrial and trial, 5(A)-(P), 6(A)-(G);
and provides for post-trial military review
through the Secretary of Defense and the
President, 6(H). In short, the standards
and procedures specified in Order No. 1
include every aspect of the [**2819]
Angelo Tannuzzo
Page 94 of 136
548 U.S. 557, *671; 126 S. Ct. 2749, **2819; 165 L. Ed. 2d 723, ***802
military commissions, including the fact of

their existence and every respect in which
they differ from courts-martial. Petitioners
claims that the President lacks legal
authority to try him before a military
commission constitute claims that the use
of such standards and procedures, as
specified in Order No. 1, is [in]consistent
with the Constitution and laws of the
United States, DTA 1005(e)(3)(D)(ii),
119 Stat. 2743. The D. C. Circuit thus
retains jurisdiction to consider these claims
on postdecision review, and the
Government does not dispute that the DTA
leaves unaffected our certiorari jurisdiction
under 28 U.S.C. 1254(1) to review the D.
C. Circuits decisions. Motion to Dismiss
16, n 8. Thus, the DTA merely defers our
jurisdiction to consider petitioners claims;
it does not eliminate that jurisdiction. It
constitutes neither an inadequate nor an
ineffective substitute for petitioners
pending habeas application. 7
(citing Ex parte Yerger, 75 U.S. 85, 8 Wall.

85, 19 L. Ed. 332 (1869); Felker v. Turpin,
518 U.S. 651, 116 S. Ct. 2333, 135 L. Ed.
2d 827 (1996); Durousseau v. United
States, 10 U.S. 307, 6 Cranch 307, 3 L. Ed.
232 (1810); United States v. Klein, 80 U.S.
128, 13 Wall. 128, 20 L. Ed. 519, 7 Ct. Cl.
240 (1872); and Ex parte McCardle, 74
U.S. 506, 7 Wall. 506, 19 L. Ed. 264). It is
not clear how there could be any such
lurking questions, in light of the aptly
named Exceptions Clause of Article III,
2, which, in making our appellate
jurisdiction subject to such Exceptions,
and under such Regulations as the Congress
shall make, explicitly permits exactly what
Congress has done here. But any doubt our
prior cases might have created on this
score is surely chimerical in this case. As
just noted, the exclusive-review provisions
provide a substitute for habeas review
adequate to satisfy the Suspension Clause,
which forbids the suspension of the writ of
habeas corpus. A fortiori they provide a
substitute adequate to satisfy any implied
substantive limitations, whether real or
imaginary, upon the Exceptions Clause,
which authorizes such exceptions as
1005(e)(1).
Though it does not

squarely address the issue, the Court hints
ominously that the Governments
preferred reading would rais[e] grave
questions about Congress authority to
impinge upon this Courts appellate
jurisdiction, particularly in habeas cases.
Ante, at 575, 165 L. Ed. 2d, at 743-744 III
[*672]
[***803]
Petitioner also urges that he could be subject to indefinite delay if military officials and the President are deliberately dilatory in
reviewing the decision of his commission. In reviewing the constitutionality of legislation, we generally presume that the Executive
will implement its provisions in good faith. And it is unclear in any event that delay would inflict any injury on petitioner, who
(after an adverse determination by his CSRT, see 344 F. Supp. 2d 152, 161 (DC 2004)) is already subject to indefinite detention
under our decision in Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004)(plurality opinion). Moreover,
the mere possibility of delay does not render an alternative remedy inadequate [o]r ineffective to test the legality of a military
commission trial. Swain v. Pressley, 430 U.S. 372, 381, 97 S. Ct. 1224, 51 L. Ed. 2d 411 (1977). In an analogous context, we
discounted the notion that postponement of relief until postconviction review inflicted any cognizable injury on a serviceman
charged before a military court-martial. Schlesinger v. Councilman, 420 U.S. 738, 754-755, 95 S. Ct. 1300, 43 L. Ed. 2d 591
(1975); see also Younger v. Harris, 401 U.S. 37, 46, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971).
Angelo Tannuzzo
Page 95 of 136
548 U.S. 557, *672; 126 S. Ct. 2749, **2819; 165 L. Ed. 2d 723, ***803
Even if Congress had not clearly and

constitutionally eliminated jurisdiction over
this case, neither this Court nor the lower
courts ought to exercise it. Traditionally,
equitable principles govern both the
exercise of habeas jurisdiction and the
granting of the injunctive relief sought by
petitioner. See Schlesinger v. Councilman,
420 U.S. 738, 754, 95 S. Ct. 1300, 43 L.
Ed. 2d 591 (1975); [*673]
[**2820]
Weinberger v. Romero-Barcelo, 456 U.S.
305, 311, 102 S. Ct. 1798, 72 L. Ed. 2d 91
(1982). In light of Congresss provision of
an alternate avenue for petitioners claims
in 1005(e)(3), those equitable principles
counsel that we abstain from exercising
jurisdiction in this case.
Councilman, all cut in favor of abstention

here.
First, the Court observes that Councilman
rested in part on the fact that military
discipline and, therefore, the efficient
operation of the Armed Forces are best
served if the military justice system acts
without [***804] regular interference
from civilian courts, and concludes that
Hamdan is not a member of our Nations
Armed Forces, so concerns about military
discipline do not apply. Ante, at 586, 587,
165 L. Ed. 2d, at 751. This is true enough.
But for some reason, the Court fails to
make any inquiry into whether military
commission trials might involve other
military necessities or unique military
exigencies, 420 U.S., at 757, 95 S. Ct.
1300, 43 L. Ed. 2d 591, comparable in
gravity to those at stake in Councilman. To
put this in context: The charge against the
respondent in Councilman was the off-base
possession and sale of marijuana while he
was stationed in Fort Sill, Oklahoma, see
id., at 739-740, 95 S. Ct. 1300, 43 L. Ed.
2d 591. The charge against the petitioner
here is joining and actively abetting the
murderous conspiracy that slaughtered
thousands of innocent American [*674]
civilians without warning on September
11, 2001. While Councilman held that the
prosecution of the former charge involved
military necessities counseling against
our interference, the Court does not even
ponder the same question for the latter
charge.
In requesting abstention, the Government

relies principally on Councilman, in which
we abstained from considering a
servicemans claim that his charge for
marijuana possession was not sufficiently
service-connected to trigger the
subject-matter jurisdiction of the military
courts-martial. See 420 U.S., at 740, 758,
95 S. Ct. 1300, 43 L. Ed. 2d 591.
Admittedly, Councilman does not squarely
control petitioners case, but it provides
the closest analogue in our jurisprudence.
As the Court describes, ante, at 586, 165
L. Ed. 2d, at 750, Councilman identifie[d]
two considerations of comity that together
favor[ed] abstention pending completion
of ongoing court-martial proceedings
against service personnel. But the Court
errs in finding these considerations
inapplicable to this case. Both of them, and The reason for the Courts blinkered
a third consideration not emphasized in study of this question, ante, at 584, 165 L.
Angelo Tannuzzo
Page 96 of 136
548 U.S. 557, *674; 126 S. Ct. 2749, **2820; 165 L. Ed. 2d 723, ***804
Ed. 2d, at 749, is not hard to fathom. The

principal opinion on the merits makes
clear that it does not believe that the trials
by military commission involve any
military necessity at all: The charges
shortcomings . . . are indicative of a
broader inability on the Executives part
here to satisfy the most basic precondition
. . . for establishment of military
commissions: military necessity. Ante, at
612, 165 L. Ed. 2d, at 766. This is quite at
odds with the views on this subject
expressed by our political branches.
Because of military necessity, a joint
session of Congress authorized the
President to use all necessary and
appropriate force, including military
commissions, against those nations,
organizations, or persons [such as
petitioner] he determines planned,
authorized, committed, or aided the terrorist
attacks that occurred on September 11,
2001. Authorization for Use of Military
Force, 2(a), 115 Stat. 224, note following
50 U.S.C. 1541 (2000 ed., Supp. III). In
keeping with this authority, the President
has determined that [t]o protect the United
States and its citizens, and for the effective
conduct of military operations and
prevention of terrorist attacks, it is
necessary for individuals subject to this
order . . . to be detained, and, when tried,
to be tried for violations of the laws of war
[**2821] and other applicable laws by
military tribunals. Military Order of Nov.
13, 2001, 3 CFR, 2001 Comp., 1(e) p.
918 (2002)(hereinafter Military Order). It
is not clear where the Court derives the
authority--or the audacity--to contradict
this determination. If military necessities
relating to duty and discipline required

abstention in Councilman, supra, at 757,
95 S. Ct. 1300, 43 L. Ed. 2d 591 military
necessities relating to the disabling,
deterrence, and punishment [*675] of the
mass-murdering terrorists of September 11
require abstention all the more here.
The Court further seeks to distinguish
Councilman on the ground that the tribunal
convened to try Hamdan is not part of the
integrated system of military courts,
complete with independent review panels,
that Congress has established. Ante, at
587, 165 L. Ed. 2d, at 751. To be sure,
Councilman emphasized that Congress
created an integrated system of military
courts and review procedures, a critical
[***805] element of which is the Court of
Military Appeals consisting of civilian
judges completely removed from all
military influence or persuasion, who
would gain over time thorough familiarity
with military problems. 420 U.S., at 758,
95 S. Ct. 1300, 43 L. Ed. 2d 591 (internal
quotation marks and footnote omitted).
The Court contrasts this integrated system
insulated from military influence with the
review scheme established by Order No. 1,
which provides that appeal of a review
panels decision may be had only to the
Secretary himself, 6(H)(5), and then,
finally, to the President, 6(H)(6). Ante,
at 587, 165 L. Ed. 2d, at 751.
Even if we were to accept the Courts
extraordinary assumption that the President
lack[s] the structural insulation from
military influence that characterizes the
Court of Appeals for the Armed Forces,
Angelo Tannuzzo
Page 97 of 136
548 U.S. 557, *675; 126 S. Ct. 2749, **2821; 165 L. Ed. 2d 723, ***805
Ibid., 8 the Courts description of the

review scheme here is anachronistic. As of
December 30, 2005, the fina[l] review of
decisions by military commissions is now
conducted by the D. C. Circuit pursuant to
1005(e)(3) of the DTA, and by this Court
under 28 U.S.C. 1254(1). This provision
for review by Article III courts creates, if
anything, a review scheme more insulated
[*676] from executive control than that in
Councilman. 9 At the time we decided
Councilman, Congress had not conferred
court
on any Art[icle] III [**2822]
jurisdiction directly to review court-martial
determinations. 420 U.S., at 746, 95 S. Ct.
1300, 43 L. Ed. 2d 591. The final arbiter of
direct appeals was the Court of Military
Appeals (now the Court of Appeals for the
Armed Forces), an Article I court whose
members possessed neither life tenure, nor
salary protection, nor the constitutional
protection from removal provided to federal
judges in Article III, 1. See 10 U.S.C.
867(a)(2) (1970 ed.).
considerations of comity, the necessity of

respect for coordinate judicial systems
that motivated our decision in Younger v.
Harris, 401 U.S. 37, 91 S. Ct. 746, 27
[***806] L. Ed. 2d 669 (1971), were
inapplicable to courts-martial, because the
peculiar demands of federalism are not
implicated. 420 U.S., at 756, 757, 95 S.
Ct. 1300, 43 L. Ed. 2d 591. Though military
commissions likewise do not implicate
the peculiar demands of federalism,
considerations of interbranch comity
[*677] at the federal level weigh heavily
against our exercise of equity jurisdiction
in this case. Here, apparently for the first
time in history, see Motion to Dismiss 6, a
District Court enjoined ongoing military
commission proceedings, which had been
deemed necessary by the President [t]o
protect the United States and its citizens,
and for the effective conduct of military
operations and prevention of terrorist
attacks. Military Order 1(e). Such an
order brings the Judicial Branch into direct
Moreover, a third consideration counsels conflict with the Executive in an area
strongly in favor of abstention in this case. where the Executives competence is
Councilman
reasoned
that
the maximal and ours is virtually nonexistent.
8
The very purpose of Article IIs creation of a civilian Commander in Chief in the President of the United States was to generate
structural insulation from military influence. See The Federalist No. 28 (A. Hamilton); id., No. 69 (same). We do not live under a
military junta. It is a disservice to both those in the Armed Forces and the President to suggest that the President is subject to the
undue control of the military.
9
In rejecting our analysis, the Court observes that appeals to the D. C. Circuit under subsection (e)(3) are discretionary, rather
than as of right, when the military commission imposes a sentence less than 10 years imprisonment, see ante, at 588, n 19, 616,
165 L. Ed. 2d, at 751, n 19, 768-769; 1005(e)(3)(B), 119 Stat. 2743. The relevance of this observation to the abstention question
is unfathomable. The fact that Article III review is discretionary does not mean that it lacks structural insulation from military
influence, ante, at 587, 165 L. Ed. 2d, at 751, and its discretionary nature presents no obstacle to the courts future review of these
cases. The Court might more cogently have relied on the discretionary nature of review to argue that the statute provides an
inadequate substitute for habeas review under the Suspension Clause. See supra, at 670-672, 165 L. Ed. 2d, at 746-748. But this
argument would have no force, even if all appeals to the D. C. Circuit were discretionary. The exercise of habeas jurisdiction has
traditionally been entirely a matter of the courts equitable discretion, see Withrow v. Williams, 507 U.S. 680, 715-718, 113 S. Ct.
1745, 123 L. Ed. 2d 407 (1993) (Scalia, J., concurring in part and dissenting in part), so the fact that habeas jurisdiction is replaced
by discretionary appellate review does not render the substitution inadequate. Swain, 430 U.S., at 381, 97 S. Ct. 1224, 51 L. Ed.
2d 411.
Angelo Tannuzzo
Page 98 of 136
548 U.S. 557, *677; 126 S. Ct. 2749, **2822; 165 L. Ed. 2d 723, ***806
claims presented were general [*678]

challenges to the authority of the
commissions that would not be affected by
the specific proceedings. See supra, at
662-663, n 2, 165 L. Ed. 2d, at 796-797. In
the DTA, by contrast, Congress has
expanded the scope of Article III review
and has channeled it exclusively through a
single, postverdict appeal to Article III
courts. Because Congress has created a
novel unitary scheme of Article III review
of military commissions that was absent in
1942, Quirin is no longer governing
In the face of such concerns, the Court precedent.
relies heavily on Ex parte Quirin, 317 U.S. I would abstain from exercising our equity
1, 63 S. Ct. 2, 87 L. Ed. 3 (1942): Far jurisdiction, as the Government requests.
from abstaining pending the conclusion of [**2823]
military proceedings, which were ongoing,
[in Quirin] we convened a special Term to
***
hear the case and expedited our review.
Ante, at 588, 165 L. Ed. 2d, at 751. It is For the foregoing reasons, I dissent.
likely that the Government in Quirin, unlike
Justice Thomas, with whom Justice Scalia
here, preferred a hasty resolution of the
joins, and with whom Justice Alito joins in
case in this Court, so that it could swiftly
all but Parts I, II-C-1, and III-B-2,
execute the sentences imposed, see Hamdi
dissenting.
v. Rumsfeld, 542 U.S. 507, 569, 124 S. Ct.
2633, 159 L. Ed. 2d 578 (2004) (Scalia, J., [***807] For the reasons set forth in
dissenting). But the Courts reliance on Justice Scalias dissent, it is clear that this
Quirin suffers from a more fundamental Court lacks jurisdiction to entertain
defect: Once again, it ignores the DTA, petitioners claims, see ante, at 655-669,
which creates an avenue for the 165 L. Ed. 2d, at 792-798. The Court
consideration of petitioners claims that having concluded otherwise, it is
did not exist at the time of Quirin. appropriate to respond to the Courts
Collateral application for habeas review resolution of the merits of petitioners
was the only vehicle available. And there claims because its opinion openly flouts
was no compelling reason to postpone our well-established duty to respect the
consideration of the Quirin application Executives judgment in matters of military
until the termination of military operations and foreign affairs. The
proceedings, because the only cognizable pluralitys evident belief that it is qualified
We should exercise our equitable discretion
to avoid such conflict. Instead, the Court
rushes headlong to meet it. Elsewhere, we
have deferred exercising habeas jurisdiction
until state courts have the first opportunity
to review a petitioners claim, merely to
reduc[e] friction between the state and
federal court systems. OSullivan v.
Boerckel, 526 U.S. 838, 844, 845, 119 S.
Ct. 1728, 144 L. Ed. 2d 1 (1999). The
friction created today between this Court
and the Executive Branch is many times
more serious.
Angelo Tannuzzo
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548 U.S. 557, *678; 126 S. Ct. 2749, **2823; 165 L. Ed. 2d 723, ***807
to pass on the military necessity, ante, at

612, 165 L. Ed. 2d, at 766, of the
Commander in Chiefs decision to employ
a particular form of force against our
enemies is so antithetical to our
constitutional structure that it simply cannot
go unanswered. I respectfully dissent.
I
Our review of petitioners claims arises in
the context of the Presidents wartime
exercise of his Commander in Chief
authority in conjunction with the complete
support of Congress. Accordingly, it is
important to take measure of the [*679]
respective roles the Constitution assigns to
the three branches of our Government in
the conduct of war.
As I explained in Hamdi v. Rumsfeld, 542
U.S. 507, 124 S. Ct. 2633, 159 L. Ed. 2d
578 (2004), the structural advantages
attendant to the Executive Branch--namely,
the decisiveness, activity, secrecy, and
dispatch that flow from the Executives
unity, id., at 581, 124 S. Ct. 2633, 159
L. Ed. 2d 578 (dissenting opinion) (quoting
The Federalist No. 70, p 472 (J. Cooke ed.
1961) (A. Hamilton))--led the Founders to
conclude that the President ha[s] primary
responsibility--along with the necessary
power--to protect the national security and
to conduct the Nations foreign relations.
542 U.S., at 580, 124 S. Ct. 2633, 159 L.
Ed. 2d 578. Consistent with this conclusion,
the Constitution vests in the President
[t]he executive Power, Art. II, 1,
provides that he shall be Commander in
Chief of the Armed Forces, 2, and
places in him the power to recognize
foreign governments, 3. This Court has

observed that these provisions confer upon
the President broad constitutional authority
to protect the Nations security in the
manner he deems fit. See, e.g., Prize Cases,
67 U.S. 635, 2 Black 635, 668, 17 L. Ed.
459 (1863) (If a war be made by invasion
of a foreign nation, the President is not
only authorized but bound to resist force
by force . . . without waiting for any
special legislative authority); Fleming v.
Page, 50 U.S. 603, 9 How. 603, 615, 13 L.
Ed. 276 (1850) (acknowledging that the
President has the authority to employ [the
Nations Armed Forces] in the manner he
may deem most effectual to harass and
conquer and subdue the enemy).
Congress, to be sure, has a substantial and
essential role in both foreign affairs and
national security. But Congress cannot
anticipate and legislate with regard to every
possible action the President may find it
necessary to take or every possible situation
in which he might act, and [s]uch failure
of Congress . . . does not, especially . . . in
the areas of foreign policy and national
security, imply congressional disapproval
of action taken by the Executive. Dames
& Moore v. Regan, 453 U.S. 654, 678, 101
S. Ct. 2972, 69 L. Ed. 2d 918 (1981)
(quoting Haig v. Agee, 453 U.S. 280, 291,
101 S. Ct. 2766, 69 L. Ed. 2d 640 (1981)).
Rather, in these domains, [*680] the fact
that Congress has [***808] provided the
President with broad authorities does
[**2824] not imply--and the Judicial
Branch should not infer--that Congress
intended to deprive him of particular
powers not specifically enumerated. See
Angelo Tannuzzo
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548 U.S. 557, *680; 126 S. Ct. 2749, **2824; 165 L. Ed. 2d 723, ***808
Dames & Moore, 453 U.S., at 678, 101 S.

Ct. 2972, 69 L. Ed. 2d 918 ([T]he
enactment of legislation closely related to
the question of the Presidents authority in
a particular case which evinces legislative
intent to accord the President broad
discretion may be considered to invite
measures on independent presidential
responsibility (internal quotation marks
omitted)).
When the President acts pursuant to an
express or implied authorization from
Congress, his actions are supported by
the strongest of presumptions and the
widest latitude of judicial interpretation,
and the burden of persuasion . . . rest[s]
heavily upon any who might attack it.
Id., at 668, 101 S. Ct. 2972, 69 L. Ed. 2d
918 (quoting Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 637, 72 S. Ct.
863, 96 L. Ed. 1153 (1952) (Jackson, J.,
concurring)). Accordingly, in the very
context that we address today, this Court
has concluded that the detention and trial
of petitioners--ordered by the President in
the declared exercise of his powers as
Commander in Chief of the Army in time
of war and of grave public danger--are not
to be set aside by the courts without the
clear conviction that they are in conflict
with the Constitution or laws of Congress
constitutionally enacted. Ex parte Quirin,
317 U.S. 1, 25, 63 S. Ct. 2, 87 L. Ed. 3
(1942).
Under this framework, the Presidents
decision to try Hamdan before a military
commission for his involvement with al
Qaeda is entitled to a heavy measure of
deference. In the present conflict, Congress

has authorized the President to use all
determines planned, authorized, committed,
or aided the terrorist attacks that occurred
on September 11, 2001 . . . in order to
prevent any future acts of international
terrorism against the United States by such
nations, organizations or persons.
Authorization for Use of Military Force
(AUMF), 115 Stat. [*681] 224, note
following 50 U.S.C. 1541 (2000 ed.,
Supp. III) (emphasis added). As a plurality
of the Court observed in Hamdi, the
capture, detention, and trial of unlawful
combatants, by universal agreement and
practice, are important incident[s] of
war, 542 U.S., at 518, 124 S. Ct. 2633,
159 L. Ed. 2d 578 (quoting Quirin, supra,
at 28, 30, 63 S. Ct. 2, 87 L. Ed. 3; emphasis
added), and are therefore an exercise of
the necessary and appropriate force
Congress has authorized the President to
us,. Hamdi, 542 U.S., at 518, 124 S. Ct.
2633, 159 L. Ed. 2d 578; id., at 587, 124 S.
Ct. 2633, 159 L. Ed. 2d 578 (Thomas, J.,
dissenting). Hamdis observation that
military commissions are included within
the AUMFs authorization is supported by
this Courts previous recognition that [a]n
important incident to the conduct of war is
the adoption of measures by the military
commander, not only to repel and defeat
the enemy, but to seize and subject to
disciplinary measures those enemies who,
in their attempt to thwart or impede our
military effort, have violated the law of
war. In re Yamashita, 327 U.S. 1, 11, 66 S.
Ct. 340, 90 L. Ed. 499 (1946); see also
Angelo Tannuzzo
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548 U.S. 557, *681; 126 S. Ct. 2749, **2824; 165 L. Ed. 2d 723, ***808
Quirin, supra, at 28-29, 63 S. Ct. 2, 87 L.

Ed. 3; Madsen v. Kinsella, 343 U.S. 341,
354, n. 20, 72 S. Ct. 699, 96 [***809] L.
Ed. 988 (1952) ([T]he military
commission . . . is an institution of the
greatest importance in a period of war and
should be preserved (quoting S. Rep. No.
229, 63d Cong., 2d Sess., 53 (1914)
(testimony of Gen. Crowder))).
Although the Court concedes the legitimacy
of the Presidents use of military
commissions in certain circumstances, ante,
at 594, 165 L. Ed. 2d, at 754, it suggests
that the AUMF has no bearing on the
scope of the Presidents power to utilize
military commissions in the present
conflict, ante, at ____ - ____, 165 L. Ed.
2d, at 754-755. [**2825] Instead, the
Court determines the scope of this power
based exclusively on Article 21 of the
Uniform Code of Military Justice (UCMJ),
10 U.S.C. 821, the successor to Article
15 of the Articles of War, which Quirin
held authorized trial of offenses against
the law of war before [military]
commissions. 317 U.S., at 29, 63 S. Ct. 2,
87 L. Ed. 3. As I shall discuss below,
Article 21 alone supports the use of
commissions here. Nothing in the language
of Article 21, however, suggests that it
outlines the entire reach of congressional
authorization of military commissions in
all [*682] conflicts--quite the contrary, the

language of Article 21 presupposes the
existence of military commissions under
an independent basis of authorization. 1
Indeed, consistent with Hamdis conclusion
that the AUMF itself authorizes the trial of
unlawful combatants, the original sanction
for military commissions historically
derived from congressional authorization
of the initiation of war with its attendant
authorization of the employment of all
necessary and proper agencies for its due
prosecution. W. Winthrop, Military Law
and Precedents 831 (rev. 2d ed. 1920)
(hereinafter Winthrop)(emphasis deleted).
Accordingly, congressional authorization
for military commissions pertaining to the
instant conflict derives not only from
Article 21 of the UCMJ, but also from the
more recent, and broader, authorization
contained in the AUMF. 2
I note the Courts error respecting the
AUMF not because it is necessary to my
resolution of this case-- Hamdans military
commission can plainly be sustained solely
under Article 21 --but to emphasize the
complete congressional sanction of the
Presidents exercise of his Commander in
Chief authority to conduct the present war.
In such circumstances, as previously noted,
our duty to defer to the Executives military
and foreign policy judgment is at its zenith;
As previously noted, Article 15 of the Articles of War was the predecessor of Article 21 of the UCMJ. Article 21 provides as
follows: The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost
courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war
may be tried by military commissions, provost courts, or other military tribunals. 10 U.S.C. 821.
2
Although the President very well may have inherent authority to try unlawful combatants for violations of the law of war before
military commissions, we need not decide that question because Congress has authorized the President to do so. Cf. Hamdi v.
Rumsfeld, 542 U.S. 507, 587, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004) (Thomas, J., dissenting) (same conclusion respecting
detention of unlawful combatants).
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548 U.S. 557, *682; 126 S. Ct. 2749, **2825; 165 L. Ed. 2d 723, ***809
it does not countenance [*683] the kind of

second-guessing the Court repeatedly
engages in today. Military and foreign
policy judgments
are and should be undertaken only
by those directly responsible to the
people whose welfare they advance
or imperil. They are decisions of a
kind for which the Judiciary
[***810] has neither aptitude,
facilities nor responsibility and
which has long been held to belong
in the domain of political power not
subject to judicial intrusion or
inquiry. Hamdi, supra, at 582-583,
587, 124 S. Ct. 2633, 159 L. Ed. 2d
578 (Thomas, J., dissenting) (quoting
Chicago & Southern Air Lines, Inc.
v. Waterman S. S. Corp., 333 U.S.
103, 111, 68 S. Ct. 431, 92 L. Ed.
568 (1948)).
It is within this framework that the
lawfulness of Hamdans commission
should be examined.
II
The plurality accurately describes some
aspects of the history of military
commissions [**2826] and the prerequisites
for their use. Thus, I do not dispute that
military commissions have historically
been used in three [different] situations,
ante, at 595, 165 L. Ed. 2d, at 755-756,
and that the only situation relevant to the
instant case is the use of military
commissions to seize and subject to
disciplinary measures those enemies who .
. . have violated the law of war, ante, at
596, 165 L. Ed. 2d, at 756 (quoting Quirin,

supra, at 28-29, 63 S. Ct. 2, 87 L. Ed. 3).
Similarly, I agree with the plurality that
Winthrops treatise sets forth the four
relevant considerations for determining the
scope of a military commissions
jurisdiction, considerations relating to the
(1) time and (2) place of the offense, (3)
the status of the offender, and (4) the
nature of the offense charged. Winthrop
836-840. The Executive has easily satisfied
these considerations here. The pluralitys
contrary conclusion rests upon an
incomplete accounting and an unfaithful
application of those considerations.
A
The first two considerations are that a
law-of-war military commission may only
assume jurisdiction of offences committed
[*684] within the field of the command of
the convening commander, and that such
offenses must have been committed within
the period of the war. See id., at 836, 837;
ante, at 597, 165 L. Ed. 2d, at 757. Here,
as evidenced by Hamdans charging
document, the Executive has determined
that the theater of the present conflict
includes Afghanistan, Pakistan and other
countries where al Qaeda has established
training camps, App. to Pet. for Cert. 64a,
and that the duration of that conflict dates
back (at least) to Usama bin Ladens
August 1996 Declaration of Jihad Against
the Americans, ibid. Under the Executives
description of the conflict, then, every
aspect of the charge, which alleges overt
acts in Afghanistan, Pakistan, Yemen and
other countries taking place from 1996 to
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548 U.S. 557, *684; 126 S. Ct. 2749, **2826; 165 L. Ed. 2d 723, ***810
2001, satisfies the temporal and geographic

prerequisites for the exercise of law-of-war
military commission jurisdiction. Id., at
65a-67a. And these judgments pertaining
to the scope of the theater and duration of
the present conflict are committed solely
to the President in the exercise of his
Commander in Chief authority. See Prize
Cases, 67 U.S. 635, 2 Black, at 670, 17 L.
Ed. 459 (concluding that the Presidents
Commander in Chief judgment about the
nature of a particular conflict was a
question to be decided by him, and this
Court must be governed by the decisions
and acts of the political department of the
Government to which this power was
entrusted).
Nevertheless, the plurality concludes that
the legality of the charge against Hamdan
is doubtful because Hamdan is charged
not with an overt [***811] act for which
he was caught redhanded in a theater of
war . . . but with an agreement the inception
of which long predated . . . the [relevant
armed conflict]. Ante, at 612, 165 L. Ed.
2d, at 766 (emphasis in original). The
pluralitys willingness to second-guess the
Executives judgments in this context,
based upon little more than its unsupported
assertions, constitutes an unprecedented
departure from the traditionally limited
role of the courts with respect to war and
an unwarranted intrusion on executive
authority. And [*685] even if such
second-guessing were appropriate, the
pluralitys attempt to do so is unpersuasive.
As an initial matter, the plurality relies

upon the date of the AUMFs enactment to
determine the beginning point for the
period of the war, Winthrop 836-837,
thereby suggesting that petitioners
commission does not have jurisdiction to
try him for offenses committed prior to the
AUMFs enactment. Ante, at 598-600, 612,
165 L. Ed. 2d, at 757-759, 766. But this
suggestion betrays the pluralitys [**2827]
unfamiliarity with the realities of warfare
and its willful blindness to our precedents.
The starting point of the present conflict
(or indeed any conflict) is not determined
by congressional enactment, but rather by
the initiation of hostilities. See Prize Cases,
supra, at 668, 67 U.S. 635, 17 L. Ed. 459
(recognizing that war may be initiated by
invasion of a foreign nation, and that
such initiation, and the Presidents
response, usually precedes congressional
action). Thus, Congress enactment of the
AUMF did not mark the beginning of this
Nations conflict with al Qaeda, but instead
authorized the President to use force in the
midst of an ongoing conflict. Moreover,
while the Presidents war powers may
not have been activated until the AUMF
was passed, ante, at 599, n 31, 165 L. Ed.
2d, at 758(emphasis deleted), the date of
such activation has never been used to
determine the scope of a military
commissions jurisdiction. 3 Instead, the
traditional rule is that [o]ffenses [*686]
committed before a formal declaration of
war or before the declaration of martial
Even if the formal declaration of war were generally the determinative act in ascertaining the temporal reach of the jurisdiction
of a military commission, the AUMF itself is inconsistent with the pluralitys suggestion that such a rule is appropriate in this case.
See ante, at 598-600, 612 165 L. Ed. 2d, at 757-759, 766. The text of the AUMF is backward looking, authorizing the use of all
necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or
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548 U.S. 557, *686; 126 S. Ct. 2749, **2827; 165 L. Ed. 2d 723, ***811
law may be tried by military commission.

Green, The Military Commission, 42 Am.
J. Intl L. 832, 848 (1948) (hereinafter
Green); see also C. Howland, Digest of
Opinions of the Judge-Advocates General
of the Army 1067 (1912) (hereinafter
Howland) (A military commission . . .
exercising . . . jurisdiction . . . under the
laws of war . . . may take cognizance of
offenses committed, during the war, before
the initiation of the military government or
martial law (emphasis in original)); 4 cf.
Yamashita, 327 U.S., at 13, 66 S. Ct.
[***812] 340, 90 L. Ed. 499 (The extent
to which the power to prosecute violations
of the law of war shall be exercised before
peace is declared rests, not with the courts,
but with the political branch of the
Government). Consistent with this
principle, on facts virtually identical to
those here, a military commission tried

Julius Otto Kuehn for conspiring with
Japanese officials to betray the United
States Fleet to the Imperial Japanese
Government prior to its attack on Pearl
Harbor. Green 848. 5
[*687] [**2828] Moreover, the Presidents
determination that the present conflict dates

at least to 1996 is supported by
overwhelming evidence. According to the
State Department, al Qaeda declared war
on the United States as early as August
1996. See Dept. of State Fact Sheet: Usama
bin Ladin (Aug. 21, 1998); Dept. of State
Fact Sheet: The Charges against
International Terrorist Usama Bin Laden
(Dec. 20, 2000); cf. Prize Cases, 67 U.S.
635, 2 Black, at 668, 17 L. Ed. 459
(recognizing that a state of war exists even
aided the terrorist attacks that occurred on September 11, 2001. 2(a), 115 Stat. 224. Thus, the Presidents decision to try Hamdan
by military commission--a use of force authorized by the AUMF--for Hamdans involvement with al Qaeda prior to September 11,
2001, fits comfortably within the framework of the AUMF. In fact, bringing the September 11 conspirators to justice is the primary
point of the AUMF. By contrast, on the pluralitys logic, the AUMF would not grant the President the authority to try Usama bin
Laden himself for his involvement in the events of September 11, 2001.
4
The plurality suggests these authorities are inapplicable because nothing in its analysis turns on the admitted absence of either a
formal declaration of war or a declaration of martial law. Our focus instead is on the . . . AUMF. Ante, at 599, n 31, 165 L. Ed. 2d,
at 758. The difference identified by the plurality is purely semantic. Both Green and Howland confirm that the date of the
enactment that establishes a legal basis for forming military commissions--whether it be a declaration of war, a declaration of
martial law, or an authorization to use military force--does not limit the jurisdiction of military commissions to offenses committed
after that date.
5
The plurality attempts to evade the import of this historical example by observing that Kuehn was tried before a martial law
commission for a violation of federal espionage statutes. Ibid. As an initial matter, the fact that Kuehn was tried before a martial
law commission for an offense committed prior to the establishment of martial law provides strong support for the Presidents
contention that he may try Hamdan for offenses committed prior to the enactment of the AUMF. Here the AUMF serves the same
function as the declaration of martial law in Hawaii in 1941, establishing legal authority for the constitution of military
commissions. Moreover, Kuehn was not tried and punished by statute, but by the laws and usages of war. United States v. Kuehn,
Board of Review 6 (Office of the Military Governor, Hawaii 1942). Indeed, in upholding the imposition of the death penalty, a
sentence not authorized by the Espionage statutes, id., at 5, Kuehns Board of Review explained that [t]he fact that persons may
be tried and punished . . . by a military commission for committing acts defined as offenses by . . . federal statutes does not mean
that such persons are being tried for violations of such . . . statutes; they are, instead, being tried for acts made offenses only by
orders of the . . . commanding general, id., at 6. Lastly, the import of this example is not undermined by Duncan v. Kahanamoku,
327 U.S. 304, 66 S. Ct. 606, 90 L. Ed. 688 (1946). The question before the Court in that case involved only whether loyal
civilians in loyal territory should have their daily conduct governed by military orders, id., at 319, 66 S. Ct. 606, 90 L. Ed. 688; it
did not involve the well-established power of the military to exercise jurisdiction over . . . enemy belligerents, id., at 313, 66 S.
Ct. 606, 90 L. Ed. 688.
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548 U.S. 557, *687; 126 S. Ct. 2749, **2828; 165 L. Ed. 2d 723, ***812
if the declaration of it be unilateral

(emphasis in original)). In February 1998,
al Qaeda leadership issued another
statement ordering the indiscriminate--and,
even under the laws of war as applied to
legitimate
nation-states,
plainly
illegal--killing of American civilians and
military personnel alike. See Jihad Against
Jews and Crusaders: World Islamic Front
Statement 2 (Feb. 23, 1998), in Y.
Alexander & M. Swetnam, Usama bin
Ladens al-Qaida: Profile of a Terrorist
Network, App. 1B (2001) (The ruling to
kill the Americans and their allies--civilians
and military--is an individual duty for
every Muslim who can do it in any country
in which it is possible to do it). This was
[*688] not mere rhetoric; even before
September 11, 2001, al Qaeda was involved
in the bombing of the World Trade Center
in New York City in 1993, the bombing of
the Khobar Towers in Saudi Arabia in
1996, the bombing of the U.S. Embassies
in Kenya and Tanzania in 1998, and the
[***813] attack on the U.S. S. Cole in
Yemen in 2000. See id., at 1. In response to
these incidents, the United States
attack[ed] facilities belonging to Usama
bin Ladins network as early as 1998.
Dept. of State Fact Sheet: Usama bin
Ladin (Aug. 21, 1998). Based on the
foregoing, the Presidents judgment --that
the present conflict substantially predates
the AUMF, extending at least as far back
as al Qaedas 1996 declaration of war on
our Nation, and that the theater of war
extends at least as far as the localities of al
Qaedas principal bases of operations--is
beyond judicial reproach. And the
pluralitys
unsupportable
contrary
determination merely confirms that the

Judiciary has neither aptitude, facilities nor
responsibility for making military or
foreign affairs judgments. Hamdi, 542 U.S.,
at 585, 124 S. Ct. 2633, 159 L. Ed. 2d 578
(Thomas, J., dissenting) (quoting Chicago
& Southern Air Lines, 333 U.S., at 111, 68
S. Ct. 431, 92 L. Ed. 568).
B
The third consideration identified by
Winthrops treatise for the exercise of
military commission jurisdiction pertains
to the persons triable before such a
commission, see ante, at 597-598, 165 L.
Ed. 2d, at 757; Winthrop 838. [**2829]
Law-of-war military commissions have
jurisdiction over [i]ndividuals of the
enemys army who have been guilty of
illegitimate warfare or other offences in
violation of the laws of war, ante, at 598,
165 L. Ed. 2d, at 757-758 (quoting
Winthrop 838). They also have jurisdiction
over [i]rregular armed bodies or persons
not forming part of the organized forces of
a belligerent who would not be likely to
respect the laws of war. Id., at 783, 784.
Indeed, according to Winthrop, such
persons are not within the protection of
the laws of war and were liable to be
shot, imprisoned, or banished, either
summarily where their guilt was clear or
[*689] upon trial and conviction by
military commission. Id., at 784. This
consideration is easily satisfied here, as
Hamdan is an unlawful combatant charged
with joining and conspiring with a terrorist
network dedicated to flouting the laws of
war. 344 F. Supp. 2d 152, 161 (DC 2004);
App. to Pet. for Cert. 63a-67a.
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C
The fourth consideration relevant to the
jurisdiction of law-of-war military
commissions relates to the nature of the
offense charged. As relevant here, such
commissions have jurisdiction to try
[v]iolations of the laws and usages of
war cognizable by military tribunals only,
ante, at 598, 165 L. Ed. 2d, at 757 (quoting
Winthrop 839). In contrast to the preceding
considerations, this Courts precedents
establish that judicial review of whether
any of the acts charged is an offense
against the law of war cognizable before a
military tribunal is appropriate. Quirin,
317 U.S., at 29, 63 S. Ct. 2, 87 L. Ed. 3.
However, charges of violations of the law
of war triable before a military tribunal
need not be stated with the precision of a
common law indictment. Yamashita, 327
U.S., at 17, 66 S. Ct. 340, 90 L. Ed. 499.
And whether an offense is a violation of
the law of war cognizable before a military
commission must be determined pursuant
to the system of common law applied by
military tribunals. Quirin, supra, at 30,
Yamashita, supra, at 8, 66 S. Ct. 340, 90 L.
Ed. 499.
common law generally, it is flexible and

evolutionary in nature, building upon the
experience of the past and taking account
of the exigencies of the present. Thus,
[t]he law of war, like every other code of
laws, declares what shall not be done, and
does not say what may be done. The
legitimate use of the great [*690] power
of war, or rather the prohibitions upon the
use of that power, increase or diminish as
the necessity of the case demands. Id., at
300. Accordingly, this Court has recognized
that the jurisdiction of our common-law
war courts has not been prescribed by
statute, but rather has been adapted in
each instance to the need that called it
forth. Madsen, 343 U.S., at 346-348, 72 S.
Ct. 699, 96 L. Ed. 988. Second, the
common law of war affords a measure of
respect for the judgment of military
commanders. Thus, [t]he commander of
an army in time of war has the same power
to organize military tribunals and execute
their judgments that he has to set his
squadrons in the field and fight battles. His
authority in each case is from the law and
usage of war. 11 Op. Atty Gen., at 305. In
recognition of these principles, Congress
has generally left it to the President, and
the military commanders representing him,
to employ the commission, as occasion
may require, for the investigation and
punishment of violations of the laws of
war. [**2830] Madsen, supra, at 347, n.
9, 72 S. Ct. 699, 96 L. Ed. 988 (quoting
Winthrop 831; emphasis added).
The common law of war as it pertains

[***814] to offenses triable by military
commission is derived from the experience
of our wars and our wartime tribunals,
Winthrop 839, and the laws and usages of
war as understood and practiced by the
civilized nations of the world, 11 Op.
Atty Gen. 297, 310 (1865). Moreover, the In one key respect, the plurality departs
common law of war is marked by two from the proper framework for evaluating
important features. First, as with the the adequacy of the charge against Hamdan
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under the laws of war. The plurality holds

that where, as here, neither the elements
of the offense nor the range of permissible
punishments is defined by statute or treaty,
the precedent [establishing whether an
offense is triable by military commission]
must be plain and unambiguous. Ante, at
602, 165 L. Ed. 2d, at 760. This is a pure
contrivance, and a bad one at that. It is
contrary to the presumption we
acknowledged in Quirin, namely, that the
actions of military commissions are not to
be set aside by the courts without the clear
conviction that they are unlawful, 317
U.S., at 25, 63 S. Ct. 2, 87 L. Ed. 3
(emphasis added). It is also contrary to
Yamashita, which recognized the
legitimacy of that military commission
notwithstanding a substantial disagreement
pertaining to whether Yamashita had been
charged with a violation of the law of war.
Compare 327 U.S., at 17, 66 S. Ct. 340, 90
L. Ed. 499 (noting that the allegations were
adequat[e] [*691] and need not be
stated with . . . precision), with id., at 35,
66 S. Ct. 340, 90 L. Ed. 499 (Murphy, J.,
dissenting) (arguing that the charge was
inadequate). Nor does it find support from
the separation of powers authority cited by
the plurality. Indeed, Madisons praise of
the separation of powers in The Federalist
No. 47, quoted ante, at 602, 165 L. Ed. 2d,
at 760, if it has any relevance at all, merely
highlights the illegitimacy of todays
judicial intrusion onto core executive
prerogatives in the waging of war, where

executive [***815] competence is at its
zenith and judicial competence at its nadir.
The
pluralitys
newly
minted
clear-statement rule is also fundamentally
inconsistent with the nature of the common
law which, by definition, evolves and
develops over time and does not, in all
cases, say what may be done. 11 Op.
Atty Gen., at 300. Similarly, it is
inconsistent with the nature of warfare,
which also evolves and changes over time,
and for which a flexible, evolutionary
common-law
system
is
uniquely
6
appropriate. Though the charge against
Hamdan easily satisfies even the pluralitys
manufactured rule, see infra, at 692-706,
165 L. Ed. 2d, at 746-754, the pluralitys
inflexible approach has dangerous
implications for the Executives ability to
discharge his duties as Commander in
Chief in future cases. We should undertake
to determine whether an unlawful
combatant has been charged with an offense
against the law of war with an
understanding that the common law of war
is flexible, responsive to the exigencies of
the present conflict, and deferential to the
judgment of military commanders.
[*692] 1
Under either the correct, flexible approach

to evaluating the adequacy of Hamdans
charge, or under the pluralitys new,
Indeed, respecting the present conflict, the President has found that the war against terrorism ushers in a new paradigm, one in
which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of
states. Our Nation recognizes that this new paradigm--ushered in not by us, but by terrorists--requires new thinking in the law of
war. App. 34-35. Under the Courts approach, the Presidents ability to address this new paradigm of inflicting death and
mayhem would be completely frozen by rules developed in the context of conventional warfare.
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clear-statement approach, Hamdan has been

charged with conduct constituting two
distinct violations of the law of war
cognizable before a military commission:
membership in a war-criminal enterprise
and conspiracy to commit war crimes.
[**2831] The charging section of the
indictment alleges both that Hamdan
willfully and knowingly joined an
enterprise of persons who shared a common
criminal purpose, App. to Pet. for Cert.
65a, and that he conspired and agreed
with [al Qaeda] to commit . . . offenses
triable by military commission, ibid. 7
against property and nationals (both

military and civilian) of the United States.
Id., at 64a; 344 F. Supp. 2d, at 161.
Moreover, the allegations specify that
Hamdan joined and maintained his
relationship with al Qaeda even though he
believed that Usama bin Laden and his
associates were involved in the attacks on
the U.S. Embassies in Kenya and Tanzania
in August 1998, the attack on the USS
COLE in October 2000, and the attacks on
the United States on September 11, 2001.
App. to Pet. for Cert. 65a. These
allegations, against a confirmed unlawful
combatant, are alone sufficient to sustain
[*693] The common law of war establishes the jurisdiction of Hamdans military
[***816] that Hamdans willful and commission.
knowing membership in al Qaeda is a war
crime chargeable before a military For well over a century it has been
commission. Hamdan, a confirmed enemy established that to unite with banditti,
combatant and member or affiliate of al jayhawkers, guerillas, or any other
Qaeda, has been charged with willfully unauthorized marauders is a high offence
and knowingly joining a group (al Qaeda) against the laws of war; the offence is
whose purpose is to support violent attacks complete when the band is organized or
7
It is true that both of these separate offenses are charged under a single heading entitled CHARGE: CONSPIRACY, App. to
Pet. for Cert. 65a. But that does not mean that they must be treated as a single crime, when the law of war treats them as separate
crimes. As we acknowledged in In re Yamashita, 327 U.S. 1, 66 S. Ct. 340, 90 L. Ed. 499 (1946), charges of violations of the law
of war triable before a military tribunal need not be stated with the precision of a common law indictment. Id., at 17, 66 S. Ct.
340, 90 L. Ed. 499; cf. W. Birkhimer, Military Government and Martial Law 536 (3d ed. 1914) (hereinafter Birkhimer) ([I]t would
be extremely absurd to expect the same precision in a charge brought before a court-martial as is required to support a conviction
before a justice of the peace (internal quotation marks omitted)). Nevertheless, the plurality contends that Hamdan was not
actually charged, ante, at 601, n 32, 165 L. Ed. 2d, at 759 (emphasis deleted), with being a member in a war-criminal organization.
But that position is demonstrably wrong. Hamdans charging document expressly charges that he willfully and knowingly joined an
enterprise of persons who shared a common criminal purpose. App. to Pet. for Cert. 65a. Moreover, the pluralitys contention that
we may only look to the label affixed to the charge to determine if the charging document alleges an offense triable by military
commission is flatly inconsistent with its treatment of the Civil War cases--where it accepts as valid charges that did not appear in
the heading or title of the charging document, or even the listed charge itself, but only in the supporting specification. See, e.g.,
ante, at 609, 165 L. Ed. 2d, at 764-765 (discussing the military commission trial of Wirz). For example, in the Wirz case, Wirz was
charged with conspiring to violate the laws of war, and that charge was supported with allegations that he personally committed a
number of atrocities. The plurality concludes that military commission jurisdiction was appropriate in that case not based upon the
charge of conspiracy, but rather based upon the allegations of various atrocities in the specification which were not separately
charged. Ante, at 609, 165 L. Ed. 2d, at 764. Just as these atrocities, not separately charged, were independent violations of the law
of war supporting Wirzs trial by military commission, so too here Hamdans membership in al Qaeda and his provision of various
forms of assistance to al Qaedas top leadership are independent violations of the law of war supporting his trial by military
commission.
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548 U.S. 557, *693; 126 S. Ct. 2749, **2831; 165 L. Ed. 2d 723, ***816
joined. The atrocities committed by such a

band do not constitute the offence, but
make the reasons, and sufficient reasons
they are, why such banditti are denounced
[**2832] by the laws of war. [*694] 11
Op. Atty Gen., at 312 (emphasis added). 8
In other words, unlawful combatants, such
as Hamdan, violate the law of war merely
by joining an organization, such as al
Qaeda, whose principal purpose is the
killing [and] disabling . . . of peaceable
citizens or soldiers. Winthrop 784; see
also 11 Op. Atty Gen., at 314 (A
bushwhacker, a jayhawker, a bandit, a war
rebel, an assassin, being public enemies,
may be tried, condemned, and executed as
offenders against the laws of war). This

conclusion is unsurprising, as it is a
cardinal principle of the law of war . . .
that the civilian population must enjoy
complete immunity. 4 Intl Comm. of Red
Cross, Commentary: Geneva Convention
Relative to the Protection of Civilian
Persons in Time of War 3 (J. Pictet gen. ed.
1958). Numerous instances of trials,
[***817] for Violation of the laws of
war, of offenders of this description, are
published in the General Orders of the
years 1862 to 1866. Winthrop 784, and n
57. 9 [**2833] Accordingly, on this basis
alone, [*695]
the allegations of
[Hamdans] charge, tested by any
These observations respecting the law of war were made by the Attorney General in defense of the military commission trial of
the Lincoln conspirators. As the foregoing quoted portion of that opinion makes clear, the Attorney General did not, as the plurality
maintains, trea[t] the charge as if it alleged the substantive offense of assassination. Ante, at 604, n 35, 165 L. Ed. 2d, at 761.
Rather, he explained that the conspirator high offence against the laws of war was complete when their band was organized or
joined, and did not depend upon atrocities committed by such a band. 11 Op. Atty Gen. 297, 312 (1865). Moreover, the
Attorney Generals conclusions specifically refute the pluralitys unsupported suggestion that I have blurred the line between those
categories of offender who may be tried by military commission . . . with the offenses that may be so tried. Ante, at 601, n 32,
165 L. Ed. 2d, at 759.
9
The General Orders establishing the jurisdiction for military commissions during the Civil War provided that such offenses were
violations of the laws of war cognizable before military commissions. See H. R. Doc. No. 65, 55th Cong., 3d Sess., 164 (1894)
([P]ersons charged with the violation of the laws of war as spies, bridge-burners, marauders, &c., will . . . be held for trial under
such charges); id., at 234 ([T]here are numerous rebels . . . that . . . furnish the enemy with arms, provisions, clothing, horses and
means of transportation; [such] insurgents are banding together in several of the interior counties for the purpose of assisting the
enemy to rob, to maraud and to lay waste the country. All such persons are by the laws of war in every civilized country liable to
capital punishment (emphasis added)). Numerous trials were held under this authority. See, e.g., U.S. War Dept., General Court
Martial Order No. 51, p 1 (1866) (hereinafter G. C. M. O.) (indictment in the military commission trial of James Harvey Wells
charged [b]eing a guerrilla and specified that he willfully . . . [took] up arms as a guerrilla marauder, and did join, belong to,
act and co-operate with guerrillas); G. C. M. O. No. 108, Head-Quarters Dept. of Kentucky, p 1 (1865) (indictment in the military
commission trial of Henry C. Magruder charged [b]eing a guerrilla and specified that he unlawfully, and of his own wrong,
[took] up arms as a guerrilla marauder, and did join, belong to, act, and co-operate with a band of guerrillas); G. C. M. O. No. 41,
p 1 (1864) (indictment in the military commission trial of John West Wilson charged that Wilson did take up arms as an insurgent
and guerrilla against the laws and authorities of the United States, and did join and co-operate with an armed band of insurgents and
guerrillas who were engaged in plundering the property of peaceable citizens . . . in violation of the laws and customs of war); G.
C. M. O. No. 153, p 1 (1864) (indictment in the military commission trial of Simeon B. Kight charged that defendant was a
guerrilla, and has been engaged in an unwarrantable and barbarous system of warfare against citizens and soldiers of the United
States); G. C. M. O. No. 93, pp 3-4 (1864) (indictment in the military commission trial of Francis H. Norvel charged [b]eing a
guerrilla and specified that he unlawfully and by his own wrong, [took] up arms as an outlaw, guerrilla, and bushwhacker,
against the lawfully constituted authorities of the United States government); id., at 9 (indictment in the military commission trial
of James A. Powell charged [t]ransgression of the laws and customs of war and specified that he [took] up arms in insurrection
as a military insurgent, and did join himself to and, in arms, consort with . . . a rebel enemy of the United States, and the leader of
a band of insurgents and armed rebels); id., at 10-11 (indictment in the military commission trial of Joseph Overstreet charged
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reasonable standard, adequately allege a

violation of the law of war. Yamashita,
327 U.S., at 17, 66 S. Ct. 340, 90 L. Ed.
499.
The conclusion that membership in an
organization whose purpose is to violate
the laws of war is an offense triable by
military commission is confirmed by the
experience of the [*696] military tribunals
convened by the United States at
Nuremberg. Pursuant to Article 10 of the
Charter of the International Military
Tribunal (IMT), the United States convened
military tribunals to bring individuals to
trial for membership in a group or
organization . . . declared criminal by the
[IMT]. 1 Trials of War Criminals Before
the Nuremberg Military Tribunals, p XII,
Art. 10 (hereinafter Trials). The IMT
designated various components of four
Nazi groups--the Leadership Corps,
Gestapo, SD, and SS--as criminal
organizations. 22 IMT, Trial of the Major
War Criminals 505, 511, 517 (1948); see
also T. Taylor, Anatomy of the Nuremberg
Trials: A Personal Memoir 584-585 (1992).
[A] member of [such] an organization
[could] be . . . convicted of the crime of
membership and be punished for that crime
by death. 22 IMT, at 499. Under this
authority, the United States Military
Tribunal at Nuremberg [***818] convicted
numerous individuals for the act of
knowing and voluntary membership in
these organizations. For example, in
Military Tribunal Case No. 1, United States
v. Brandt, Karl Brandt, Karl Gebhardt,
Rudolf Brandt, Joachim Mrugowsky,

Wolfram Sievers, Viktor Brack, and
Waldemar Hoven were convicted and
sentenced to death for the crime of, inter
alia, membership in an organization
declared criminal by the IMT; Karl
Genzken and Fritz Fischer were sentenced
to life imprisonment for the same; and
Helmut Poppendick was convicted of no
other offense than membership in a
criminal organization and sentenced to a
10-year term of imprisonment. 2 Trials
180-300. This Court denied habeas relief,
333 U.S. 836, 68 S. Ct. 603, 92 L. Ed. 1119
(1948), and the executions were carried
out at Landsberg prison on June 2, 1948. 2
Trials 330.
Moreover, the Government has alleged
that Hamdan was not only a member of al
Qaeda while it was carrying out terrorist
attacks on civilian targets in the United
States and abroad, but also that Hamdan
aided and assisted al Qaedas top leadership
by supplying weapons, transportation, and
other services. App. to Pet. for Cert.
65a-67a. These allegations [*697] further
confirm that Hamdan is triable before a
law-of-war military commission for his
involvement with al Qaeda. See H. R. Doc.
No. 65, 55th Cong., 3d Sess., 234 (1894)
([T]here are numerous rebels . . . that . . .
furnish the enemy with arms, provisions,
clothing,
horses
and
means
of
transportation; [such] insurgents are
banding together in several of the interior
counties for the purpose of assisting the
enemy to rob, to maraud and to lay waste
[b]eing a guerrilla and specified that he did join, belong to, consort and co-operate with a band of guerrillas, insurgents,
outlaws, and public robbers).
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to the country. All such persons are by the

laws of war in every civilized country
liable to capital punishment (emphasis
added)); Winthrop 840 (including in the
list of offenses triable by law-of-war
military commissions dealing with . . .
enemies, or furnishing them with money,
arms, provisions, medicines, &.c). 10
Undoubtedly, [**2834] the conclusion
that such conduct violates the law of war
led to the enactment of Article 104 of the
UCMJ, which provides that [a]ny person
who . . . aids, or attempts to aid, the enemy
with arms, ammunition, supplies, money,
or other things . . . shall suffer death or
such other punishment as a court-martial
or military commission may direct. 10
U.S.C. 904.
2
Separate and apart from the offense of
joining a contingent of uncivilized
combatants who [are] not . . . likely to
respect the laws of war, Winthrop 784,
Hamdan has been charged with
conspir[ing] and agree[ing] with . . . the al
Qaida organization . . . to commit . . .
offenses triable by military commission,
App. to Pet. for Cert. 65a. Those offenses
include attacking civilians; attacking
civilian objects; murder by an unprivileged
belligerent; and terrorism. Ibid. This, too,
[*698] alleges a violation of the law of
war triable by military commission.
[T]he experience of our wars, Winthrop
839, is rife with evidence that establishes
beyond any doubt [***819] that conspiracy

to violate the laws of war is itself an
offense cognizable before a law-of-war
military commission. World War II
provides the most recent examples of the
use of American military commissions to
try offenses pertaining to violations of the
laws of war. In that conflict, the orders
establishing the jurisdiction of military
commissions in various theaters of
operation provided that conspiracy to
violate the laws of war was a cognizable
offense. See Letter, General Headquarters,
United States Army Forces, Pacific (Sept.
24, 1945), Record in Yamashita v. Styer, O.
T. 1945, No. 672, pp 14, 16 (Exh. F)
(Order respecting the Regulations
Governing the Trial of War Criminals
provided that participation in a common
plan or conspiracy to accomplish various
offenses against the law of war was
cognizable before military commissions);
1 U.N. War Crimes Commission, Law
Reports of Trials of War Criminals 114-115
(1947)(reprint 1997) (hereinafter U. N.
Commission) (recounting that the orders
establishing World War II military
commissions in the Pacific and China
included participation in a common plan
or conspiracy pertaining to certain
violations of the laws of war as an offense
triable by military commission). Indeed,
those orders authorized trial by military
commission of participation in a conspiracy
to commit murder . . . or other inhumane
acts . . . against any civilian population,
10
Even if the plurality were correct that a membership offense must be accompanied by allegations that the defendant took up
arms, ante, at 601, n 32, 165 L. Ed. 2d, at 759, that requirement has easily been satisfied here. Not only has Hamdan been
charged with providing assistance to top al Qaeda leadership (itself an offense triable by military commission), he has also been
charged with receiving weapons training at an al Qaeda camp. App. to Pet. for Cert. 66a-67a.
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548 U.S. 557, *698; 126 S. Ct. 2749, **2834; 165 L. Ed. 2d 723, ***819
id., at 114, which is precisely the offense

Hamdan has been charged with here. And
conspiracy to violate the laws of war was
charged in the highest profile case tried
before a World War II military commission,
see Quirin, 317 U.S., at 23, 63 S. Ct. 2, 87
L. Ed. 3, and on numerous other occasions.
See, e.g., Colepaugh v. Looney, 235 F.2d
429, 431 (CA10 1956); Green 848
(describing the conspiracy trial of Julius
Otto Kuehn).
[*699] To support its contrary conclusion,
ante, at 600, 165 L. Ed. 2d, at 758-759, the

plurality attempts to evade the import of
Quirin (and the other World War II
authorities) by resting upon this Courts
failure to address the sufficiency of the
conspiracy charge in the Quirin case, ante,
at 605-607, 165 L. Ed. 2d, at 761-763. But
the common law of war cannot be
ascertained from this Courts failure to
pass upon an issue, or indeed to even
mention the issue in its [**2835] opinion;
11
rather, it is ascertained by the practice
and usage of war. Winthrop 839; supra, at
689-690, 165 L. Ed. 2d, at 813.
The Civil War experience provides further

support for the Presidents conclusion that
conspiracy to violate the laws of war is an
offense cognizable before law-of-war
military commissions. Indeed, in the
highest profile case to be tried before a
military commission relating to that war,
namely, the trial of the men involved in the
assassination of President Lincoln, the
charge provided that those men had
combin[ed],
confederat[ed],
and
conspir[ed] . . . to kill and murder
President Lincoln. G. C. M. O. No. 356
(1865), reprinted in H. R. Doc. No. 314,
55th Cong., 3d Sess., 696 [***820] (1899)
(hereinafter G. C. M. O. No. 356). 12
In addition to the foregoing
high-profile example, Winthrops treatise
enumerates numerous Civil War military
commission trials for conspiracy to violate
the law of war. Winthrop 839, n 5. The
plurality attempts to explain these examples
away by suggesting that the conspiracies
listed by Winthrop are best understood as
a species of compound offense, namely,
violations both of the law of war and
ordinary criminal laws, rather than
[*700]
11
The plurality recounts the respective claims of the parties in Quirin pertaining to this issue and cites the United States Reports.
Ante, at 605, 165 L. Ed. 2d, at 761-762. But the claims of the parties are not included in the opinion of the Court, but rather in the
sections of the Reports entitled Argument for Petitioner, and Argument for Respondent. See 317 U.S., at 6-17, 63 S. Ct. 2, 87 L.
Ed. 3.
12
The plurality concludes that military commission jurisdiction was appropriate in the case of the Lincoln conspirators because
they were charged with maliciously, unlawfully, and traitorously murdering the said Abraham Lincoln, ante, at 604, n 35, 165 L.
Ed. 2d, at 761. But the sole charge filed in that case alleged conspiracy, and the allegations pertaining to maliciously, unlawfully,
and traitorously murdering the said Abraham Lincoln were not charged or labeled as separate offenses, but rather as overt acts in
pursuance of and in prosecuting said malicious, unlawful, and traitorous conspiracy. G. C. M. O. No. 356, at 696 (emphasis
added). While the plurality contends the murder of President Lincoln was charged as a distinct separate offense, the foregoing
quoted language of the charging document unequivocally establishes otherwise. Moreover, though I agree that the allegations
pertaining to these overt acts provided an independent basis for the military commissions jurisdiction in that case, that merely
confirms the propriety of examining all the acts alleged--whether or not they are labeled as separate offenses--to determine if a
defendant has been charged with a violation of the law of war. As I have already explained, Hamdan has been charged with
violating the law of war not only by participating in a conspiracy to violate the law of war, but also by joining a war-criminal
enterprise and by supplying provisions and assistance to that enterprises top leadership.
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stand-alone offense[s] against the law of Henry Wirz, Charge I provided that he had
war. Ante, at 608, 165 L. Ed. 2d, at been
763-764 (citing, as an example, murder in
[m]aliciously,
willfully,
and
violation of the laws of war). But the fact
traitorously . . . combining,
that, for example, conspiracy to commit
confederating, and conspiring,
murder can at the same time violate
together [with various other named
ordinary criminal laws and the law of war,
and unnamed co-conspirators], to
so that it is a combination of the two
injure the health and destroy the
species of offenses, Howland 1071, does
lives of soldiers in the military
not establish that a military commission
service of the United States, then
would not have jurisdiction to try that
held and being prisoners of war
crime solely on the basis that it was a
within the lines of the so-called
violation of the law of war. Rather, if
Confederate States, and in the
anything, and consistent with the principle
military prisons thereof, to the end
that the common law of war is flexible and
that the armies of the United States
affords some level of deference to the
might be weakened and impaired, in
judgments of military commanders, it
violation of the laws and customs of
establishes that military commissions
war. G. C. M. O. No. 607 (1865),
would have the discretion to try the offense
reprinted in H. R. Doc. No. 314, at
as (1) one against the law of war, or (2) one
785 (emphasis added).
against the ordinary criminal laws, or (3)
both.
[***821]
Likewise, in the military
In any event, the pluralitys effort to avoid commission trial of Leger Grenfel, Charge
the import of Winthrops footnote through I accused Grenfel of [c]onspiring, in
the smokescreen of its compound offense violation of the laws of war, to release
theory, ante, at 607-608, 165 L. Ed. 2d, at rebel prisoners of war confined by authority
763-764, cannot be [**2836] reconciled of the United States at Camp Douglas, near
with the particular charges that sustained Chicago, Ill. G. C. M. O. No. 452 (1865),
military commission jurisdiction in the reprinted in H. R. Doc. No. 314, at 724
cases that Winthrop cites. For example, (emphasis added); 13 see also G. C. M. O.
[*701] in the military commission trial of [*702] No. 41, p. 20 (1864) (indictment in
13
The pluralitys attempt to undermine the significance of these cases is unpersuasive. The plurality suggests the Wirz case is not
relevant because the specification supporting his conspiracy charge alleged that he personally committed a number of atrocities.
Ante, at 609, 165 L. Ed. 2d, at 764. But this does not establish that conspiracy to violate the laws of war, the very crime with which
Wirz was charged, is not itself a violation of the law of war. Rather, at best, it establishes that in addition to conspiracy Wirz
violated the laws of war by committing various atrocities, just as Hamdan violated the laws of war not only by conspiring to do so,
but also by joining al Qaeda and providing provisions and services to its top leadership. Moreover, the fact that Wirz was charged
with overt acts that are more severe than the overt acts with which Hamdan has been charged does not establish that conspiracy is
not an offense cognizable before military commission; rather it merely establishes that Wirzs offenses may have been comparably
worse than Hamdans offenses. The pluralitys claim that the charge against Leger Grenfel supports its compound offense theory is
similarly unsupportable. The plurality does not, and cannot, dispute that Grenfel was charged with conspiring to violate the laws of
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548 U.S. 557, *702; 126 S. Ct. 2749, **2836; 165 L. Ed. 2d 723, ***821
the military commission trial of Robert

Louden charged [c]onspiring with the
rebel enemies of the United States to
embarrass and impede the military
authorities in the suppression of the existing
rebellion, by the burning and destruction
of steamboats and means of transportation
on the Mississippi river). These examples
provide incontrovertible support for the
Presidents conclusion that the common
law of war permits military commission
trials for conspiracy to violate the law of
war. And they specifically contradict the
pluralitys conclusion to the contrary,
thereby easily satisfying its requirement
that the Government make a substantial
showing that the crime for which it seeks
to try a defendant by military commission
is acknowledged to be an offense against
the law of war. Ante, at 603, 165 L. Ed.
2d, at 761. 14
conspiracy [***822] is not an offense

cognizable before a law-of-war military
commission because it is not enough to
intend to violate the law of war and commit
overt acts in furtherance of that intention
unless the overt acts either are themselves
offenses against the law of war or constitute
steps sufficiently substantial to qualify as
an attempt. Ibid. But Winthrop does not
support the pluralitys conclusion. The
passage in Winthrop cited by the plurality
states only that the jurisdiction of the
military commission should be restricted
to cases of offence consisting in overt acts,
i.e. in unlawful commissions or actual
attempts to commit, and not in intentions
merely. Winthrop 841 (emphasis in
original). This passage would be helpful to
the plurality if its subject were
conspiracy, rather than the jurisdiction
of the military commission. Winthrop is
not speaking here of the requirements for a
[*703] [**2837] The plurality further conspiracy charge, but of the requirements
contends, in reliance upon Winthrop, that for all charges. Intentions do not suffice.
war by releasing rebel prisoners--a charge that bears no relation to a crime ordinarily triable in civilian courts. Ante, at 609, n 37,
165 L. Ed. 2d, at 764. Tellingly, the plurality does not reference or discuss this charge, but instead refers to the conclusion of Judge
Advocate Holt that Grenfel also united himself with traitors and malefactors for the overthrow of our Republic in the interest of
slavery. Ante, at 610, n 37, 165 L. Ed. 2d, at 764 (quoting H. R. Doc. No. 314, at 689). But Judge Advocate Holts observation
provides no support for the pluralitys conclusion, as it does not discuss the charges that sustained military commission jurisdiction,
much less suggest that such charges were not violations of the law of war.
14
The plurality contends that international practice--including the practice of the IMT at Nuremberg--supports its conclusion that
conspiracy is not an offense triable by military commission because [t]he Anglo-American concept of conspiracy was not part of
European legal systems and arguably not an element of the internationally recognized laws of war. Ante, at 611, 165 L. Ed. 2d, at
765 (quoting T. Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir 36 (1992)). But while the IMT did not criminalize all
conspiracies to violate the law of war, it did criminalize participation in a common plan or conspiracy to wage aggressive war.
See 1 Trials, at XI-XII, Art. 6(a). Moreover, the World War II military tribunals of several European nations recognized conspiracy
to violate the laws of war as an offense triable before military commissions. See 15 U. N. Commission 90-91 (noting that the
French Military Tribunal at Marseilles found Henri Georges Stadelhofer guilty of the crime of association de malfaiteurs, namely,
of having formed with various members of the German Gestapo an association with the aim of preparing or committing crimes
against persons or property, without justification under the laws and usages of war); 11 id., at 98 (noting that the Netherlands
military tribunals were authorized to try conspiracy to violate the laws of war). Thus, the European legal systems approach to
domestic conspiracy law has not prevented European nations from recognizing conspiracy offenses as violations of the law of war.
This is unsurprising, as the law of war is derived not from domestic law but from the wartime practices of civilized nations,
including the United States, which has consistently recognized that conspiracy to violate the laws of war is an offense triable by
military commission.
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548 U.S. 557, *703; 126 S. Ct. 2749, **2837; 165 L. Ed. 2d 723, ***822
An unlawful act--such as committing the

crime of conspiracy--is necessary. Winthrop
says nothing to exclude either conspiracy
or membership in a criminal enterprise,
both of which go beyond intentions
merely and consis[t] of] overt acts, i.e. .
. . unlawful commissions or actual attempts
to commit, and both of which are expressly
recognized by Winthrop as crimes against
the law of war triable by military
commissions. Id., at 784; id., at 839, and n
5, 840. Indeed, the [*704] commission of
an overt ac[t] is the traditional
requirement for the completion of the crime
of conspiracy, and the charge against
Hamdan alleges numerous such overt acts.
App. to Pet. for Cert. 65a. The pluralitys
approach, unsupported by Winthrop,
requires that any overt act to further a
conspiracy must itself be a completed war
crime distinct from conspiracy--which
merely begs the question the plurality sets
out to answer, namely, whether conspiracy
itself may constitute a violation of the law
of war. And, even the pluralitys
unsupported standard is satisfied here.
Hamdan has been charged with the overt
acts of providing protection, transportation,
weapons, and other services to the enemy,
id., at 65a-67a, acts which in and of
themselves are violations [**2838] of the
laws of war. See supra, at 696-697, 165 L.
Ed. 2d, at 818; Winthrop 839-840.
3
Ultimately, the pluralitys determination
that Hamdan has not been charged with an
offense triable before a military
commission rests not upon any historical
example or authority, but upon the

pluralitys raw judgment of the inability
on the Executives part here to satisfy the
most basic precondition . . . for
establishment of military commissions:
military necessity. Ante, at 612, 165 L.
Ed. 2d, at 766. This judgment starkly
confirms that the plurality has appointed
itself the ultimate arbiter of what is
quintessentially a policy and military
judgment, namely, the appropriate military
measures to take against those who aided
the terrorist attacks that occurred on
September 11, 2001. AUMF 2(a), 115
Stat. 224. The pluralitys suggestion that
Hamdans commission is illegitimate
because it [***823] is not dispensing swift
justice on the battlefield is unsupportable.
Ante, at ____, 165 L. Ed. 2d, at 763. Even
a cursory review of the authorities confirms
that law-of-war military commissions have
wide-ranging jurisdiction to try offenses
against the law of war in exigent and
nonexigent circumstances alike. See, e.g.,
Winthrop 839-840; see also Yamashita,
327 U.S., at 5, 66 S. Ct. 340, 90 L. Ed. 499
(military commission trial after the
cessation [*705] of hostilities in the
Philippines); Quirin, 317 U.S. 1, 63 S. Ct.
2, 87 L. Ed. 3 (military commission trial in
Washington, D. C.). Traditionally,
retributive justice for heinous war crimes
is as much a military necessity as the
demands of military efficiency touted
by the plurality, and swift military
retribution is precisely what Congress
authorized the President to impose on the
September 11 attackers in the AUMF.
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548 U.S. 557, *705; 126 S. Ct. 2749, **2838; 165 L. Ed. 2d 723, ***823
Today a plurality of this Court would hold

that conspiracy to massacre innocent
civilians does not violate the laws of war.
This determination is unsustainable. The
judgment of the political branches that
Hamdan, and others like him, must be held
accountable before military commissions
for their involvement with and membership
in an unlawful organization dedicated to
inflicting massive civilian casualties is
supported by virtually every relevant
authority, including all of the authorities
invoked by the plurality today. It is also
supported by the nature of the present
conflict. We are not engaged in a traditional
battle with a nation-state, but with a
worldwide, hydra-headed enemy, who lurks
in the shadows conspiring to reproduce the
atrocities of September 11, 2001, and who
has boasted of sending suicide bombers
into civilian gatherings, has proudly
distributed videotapes of beheadings of
civilian workers, and has tortured and
dismembered captured American soldiers.
But according to the plurality, when our
Armed Forces capture those who are
plotting terrorist atrocities like the bombing
of the Khobar Towers, the bombing of the
U.S.S. Cole, and the attacks of September
11--even if their plots are advanced to the
very brink of fulfillment--our military
cannot charge those criminals with any
offense against the laws of war. Instead,
our troops must catch the terrorists
redhanded, ante, at 612, 165 L. Ed. 2d,
at 766, in the midst of the attack itself, in
order to bring them to justice. Not only is
this conclusion fundamentally inconsistent
with the cardinal principle of the law of
war, namely, protecting noncombatants,
but it would sorely hamper the Presidents

ability to confront and defeat a new and
deadly enemy.
[*706] After seeing the plurality overturn
longstanding precedents in order to seize

jurisdiction over this case, ante, at 656-658,
165 L. Ed. 2d, at 793-794 (Scalia, J.,
dissenting), and after seeing them disregard
the clear prudential counsel that they
abstain in these circumstances [**2839]
from using equitable powers, ante, at
672-678, 165 L. Ed. 2d, at 748-752, it is no
surprise to see them go on to overrule one
after another of the Presidents judgments
pertaining to the conduct of an ongoing
war. Those Justices who today disregard
the Commander in Chiefs wartime
decisions, only 10 days ago deferred to the
judgment of the Corps of Engineers with
regard to a matter much more within the
competence of lawyers, upholding that
agencys wildly implausible conclusion that
a storm drain is a tributary of the waters of
the United States. See Rapanos [***824] v.
United States, 547 U.S. ___, 547 U.S. 715,
126 S. Ct. 2208, 165 L. Ed. 2d 159, 2006
U.S. LEXIS 4887 (2006). It goes without
saying that there is much more at stake
here than storm drains. The pluralitys
willingness
to
second-guess
the
determination of the political branches that
these conspirators must be brought to
justice is both unprecedented and
dangerous.
III
The Court holds that even if the
Government has charged Hamdan with an
offense against the law of war cognizable
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548 U.S. 557, *706; 126 S. Ct. 2749, **2839; 165 L. Ed. 2d 723, ***824
by military commission, the commission

lacks power to proceed because of its
failure to comply with the terms of the
UCMJ and the four Geneva Conventions
signed in 1949. Ante, at 612, 165 L. Ed.
2d, at 766. This position is untenable.
A
As with the jurisdiction of military
commissions, the procedure of such
commissions has [not] been prescribed by
statute, but has been adapted in each
instance to the need that called it forth.
Madsen, 343 U.S., at 347-348, 72 S. Ct.
699, 96 L. Ed. 988. Indeed, this Court has
concluded that [i]n the absence of attempts
by Congress to limit the Presidents power,
it appears that, as Commander in Chief of
the Army and Navy of the United States,
he may, in time of war, establish and
prescribe [*707] the jurisdiction and
procedure of military commissions. Id., at
348, 72 S. Ct. 699, 96 L. Ed. 988. This
conclusion is consistent with this Courts
understanding that military commissions
are our common-law war courts. Id., at
346-347, 72 S. Ct. 699, 96 L. Ed. 988. 15

As such, [s]hould the conduct [**2840] of
those who compose martial-law tribunals
become [a] matter of judicial determination
subsequently before the civil courts, those
courts will give great weight to the opinions
of the officers as to what the customs of
war in any case justify and render
necessary. Birkhimer 534.
[*708] The Court nevertheless concludes
that at least one provision of the UCMJ

amounts to an attempt by Congress to limit
the Presidents power. [***825] This
conclusion is not only contrary to the text
and structure of the UCMJ, but it is also
inconsistent with precedent of this Court.
Consistent with Madsens conclusion
pertaining to the common-law nature of
military commissions and the Presidents
discretion to prescribe their procedures,
Article 36 of the UCMJ authorizes the
President to establish procedures for
military commissions which shall, so far
as he considers practicable, apply the
principles of law and the rules of evidence
generally recognized in the trial of criminal
15
Though it does not constitute a basis for any holding of the Court, the Court maintains that, as a general rule, the procedures
governing trials by military commission historically have been the same as those governing courts-martial. Ante, at 617, 165 L. Ed.
2d, at 769. While it is undoubtedly true that military commissions have invariably employed most of the procedures employed by
courts-martial, that is not a requirement. See Winthrop 841 ([M]ilitary commissions . . . are commonly conducted according to the
rules and forms governing courts-martial. These war-courts are indeed more summary in their action than are the courts held under
the Articles of war, and . . . their proceedings . . . will not be rendered illegal by the omission of details required upon trials by
courts-martial (emphasis in original; footnotes omitted)); 1 U. N. Commission 116-117 (The [World War II] Mediterranean
Regulations (No. 8) provide that Military Commissions shall conduct their proceedings as may be deemed necessary for full and fair
trial, having regard for, but not being bound by, the rules of procedure prescribed for General Courts Martial (emphasis added));
id., at 117 (In the [World War II] European directive it is stated . . . that Military Commissions shall have power to make, as
occasion requires, such rules for the conduct of their proceedings consistent with the powers of such Commissions, and with the
rules of procedure . . . as are deemed necessary for a full and fair trial of the accused, having regard for, without being bound by,
the rules of procedure and evidence prescribed for General Courts Martial). Moreover, such a requirement would conflict with the
settled understanding of the flexible and responsive nature of military commissions and the Presidents wartime authority to employ
such tribunals as he sees fit. See Birkhimer 537-538 ([M]ilitary commissions may so vary their procedure as to adapt it to any
situation, and may extend their powers to any necessary degree. . . . The military commander decides upon the character of the
military tribunal which is suited to the occasion . . . and his decision is final).
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548 U.S. 557, *709; 126 S. Ct. 2749, **2840; 165 L. Ed. 2d 723, ***825
cases in the United States district courts,

but which may not be contrary to or
inconsistent with this chapter. 10 U.S.C.
836(a) (emphasis added). Far from
constraining the Presidents authority,
Article 36 recognizes the Presidents
prerogative to depart from the procedures
applicable in criminal cases whenever he
alone does not deem such procedures
practicable. While the procedural
regulations promulgated by the Executive
must not be contrary to the UCMJ, only
a few provisions of the UCMJ mention
military commissions, see ante, at 621, n
49, 165 L. Ed. 2d, at 771, and there is no
suggestion that the procedures to be
employed by Hamdans commission
implicate any of those provisions.
Notwithstanding the foregoing, the Court
concludes that Article 36(b) of the UCMJ,
10 U.S.C. 836(b), which provides that
[a]ll rules and regulations made under
this article shall be uniform insofar as
practicable, ante, at 620, 165 L. Ed. 2d,
at 771, requires the President to employ
the same rules and procedures in military
commissions as are employed by
courts-martial insofar as practicable,
ante, at 622, 165 L. Ed. 2d, at 772. The
Court further concludes that Hamdans
commission is unlawful because the
President has not explained why it is not
practicable to apply the same rules and
procedures to Hamdans commission as
would be applied in a trial by court martial.
Ante, at 623-624, 165 L. Ed. 2d, at 772-773.
[*709] This interpretation of 836(b) is
unconvincing. As an initial matter , the

Court fails to account for our cases
interpreting the predecessor to Article 21
of the UCMJ --Article 15 of the Articles of
War--which provides crucial context that
bears directly on the proper interpretation
of Article 36(b). Article 15 of the Articles
of War provided that:
The provisions of these articles
conferring
jurisdiction
upon
courts-martial shall not be construed
as depriving military commissions,
tribunals of concurrent jurisdiction
in respect of offenders or offenses
that by statute or by the law of war
may be triable by such military
commissions, provost courts, or
other military tribunals.
In Yamashita, this Court concluded that
Article 15 of the Articles of War preserved
the Presidents unfettered authority to
prescribe military commission procedure.
The Court explained, [b]y thus
recognizing military commissions in order
to preserve their traditional jurisdiction
over enemy combatants unimpaired by the
Articles, Congress gave sanction . . . to any
use of the military commission
contemplated [**2841] by the common
law of war. 327 U.S., at 20, 66 S. Ct. 340,
90 L. Ed. 499 (emphasis added); 16 see also
Quirin, 317 U.S., at 28, 63 S. Ct. 2, 87 L.
Ed. 3; Madsen, 343 U.S., at [***826] 355,
16
The Court suggests that Congress amendment to Article 2 of the UCMJ, providing that the UCMJ applies to persons within
an area leased by or otherwise reserved or acquired for the use of the United States, 10 U.S.C. 802(a)(12), deprives Yamashitas
conclusion respecting the Presidents authority to promulgate military commission procedures of its precedential value. Ante, at
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548 U.S. 557, *709; 126 S. Ct. 2749, **2841; 165 L. Ed. 2d 723, ***826
72 S. Ct. 699, 96 L. Ed. 988. In reaching

this conclusion, this Court treated as
authoritative the congressional testimony
of Judge Advocate [*710] General
Crowder, who testified that Article 15 of
the Articles of War was enacted to preserve
the military commission as our
common-law war court. Yamashita,
supra, at 19, n. 7, 66 S. Ct. 340, 90 L. Ed.
499. And this Court recognized that Article
15s preservation of military commissions
as common-law war courts preserved the
Presidents Commander in Chief authority
to both establish military commissions
and to prescribe [their] procedure[s].
Madsen, 343 U.S., at 348, 72 S. Ct. 699, 96
L. Ed. 988; id., at 348-349, 72 S. Ct. 699,
96 L. Ed. 988 (explaining that Congress
had refrain[ed] from legislating in the
area of military commission procedures, in
contras[t] with its traditional readiness to
. . . prescrib[e], with particularity, the
jurisdiction and procedure of United States
courts-martial); cf. Green 834 (The
military commission exercising jurisdiction
under common law authority is usually
appointed by a superior military
commander and is limited in its procedure
only by the will of that commander. Like
any other common law court, in the absence
of directive of superior authority to the
contrary, the military commission is free to
formulate its own rules of procedure).
President to apply the same rules and

procedures to military commissions as are
applicable
to
courts-martial
is
unsustainable. When Congress codified
Article 15 of the Articles of War in Article
21 of the UCMJ it was presumed to be
aware of . . . and to adopt this Courts
interpretation of that provision as
preserving the common-law status of
military commissions, inclusive of the
Presidents unfettered authority to prescribe
their procedures. Lorillard v. Pons, 434
U.S. 575, 580, 98 S. Ct. 866, 55 L. Ed. 2d
40 (1978). The Courts conclusion that
Article 36(b) repudiates this settled
meaning of Article 21 is not based upon a
specific textual reference to military
commissions, but rather on a one-sentence
subsection providing that [a]ll rules and
regulations made under this article shall be
uniform insofar as practicable. 10 U.S.C.
836(b). This is little more than an
impermissible repeal by implication.
[*711] See Branch v. Smith, 538 U.S. 254,
273, 123 S. Ct. 1429, 155 L. Ed. 2d 407
(2003)(plurality opinion). (We have
repeatedly stated . . . that absent a clearly
expressed congressional intention, repeals
by implication are not favored (citations
and internal quotation marks omitted)).
Moreover, the Courts conclusion is flatly
contrary to its duty not to set aside
Hamdans commission without the clear
Given these precedents, the Courts conviction that [it is] in conflict with the .
conclusion that Article 36(b) requires the . . laws of Congress constitutionally
620, 165 L. Ed. 2d, at 771. But this merely begs the question of the scope and content of the remaining provisions of the UCMJ.
Nothing in the additions to Article 2, or any other provision of the UCMJ, suggests that Congress has disturbed this Courts
unequivocal interpretation of Article 21 as preserving the common-law status of military commissions and the corresponding
authority of the President to set their procedures pursuant to his Commander in Chief powers. See Quirin, 317 U.S., at 28, 63 S. Ct.
2, 87 L. Ed. 3; Yamashita, 327 U.S., at 20, 66 S. Ct. 340, 90 L. Ed. 499; Madsen v. Kinsella, 343 U.S. 341, 355, 72 S. Ct. 699, 96
L. Ed. 988 (1952).
Angelo Tannuzzo
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548 U.S. 557, *711; 126 S. Ct. 2749, **2842; 165 L. Ed. 2d 723, ***826
[**2842] enacted. Quirin, supra, at 866 (providing for three different types
[***827] 25, 63 S. Ct. 2, 87 L. Ed. 3 of courts-martial--general, special, and
(emphasis added).
Nothing in the text of Article 36(b) supports
the Courts sweeping conclusion that it
represents an unprecedented congressional
effort to change the nature of military
commissions from common-law war courts
to tribunals that must presumptively
function like courts-martial. And such an
interpretation would be strange indeed.
The vision of uniformity that motivated
the adoption of the UCMJ, embodied
specifically in Article 36(b), is nothing
more than uniformity across the separate
branches of the armed services. See Act of
May 5, 1950, ch. 169, 64 Stat. 107
(preamble to the UCMJ explaining that the
UCMJ is an Act [t]o unify, consolidate,
revise, and codify the Articles of War, the
Articles for the Government of the Navy,
and the disciplinary laws of the Coast
Guard). There is no indication that the
UCMJ was intended to require uniformity
in procedure between courts-martial and
military commissions, tribunals that the
UCMJ itself recognizes are different. To
the contrary, the UCMJ expressly
recognizes that different tribunals will be
constituted in different manners and
employ different procedures. See 10 U.S.C.
summary-- constituted in different manners

and employing different procedures). Thus,
Article 36(b) is best understood as
establishing that, so far as practicable, the
rules and regulations governing tribunals
convened by the Navy must be uniform
with the rules and regulations governing
tribunals convened by the Army. But,
consistent with this Courts prior
interpretations [*712] of Article 21 and
over a century of historical practice, it
cannot be understood to require the
President to conform the procedures
employed by military commissions to those
employed by courts-martial. 17
Even if Article 36(b) could be construed to
require procedural uniformity among the
various tribunals contemplated by the
UCMJ, Hamdan would not be entitled to
relief. Under the Courts reading, the
President is entitled to prescribe different
rules for military commissions than for
courts-martial when he determines that it
is not practicable to prescribe uniform
rules. The Court does not resolve the level
of deference such determinations would be
owed, however, because, in its view, [t]he
President has not . . . [determined] that it is
impracticable to apply the rules for
17
It bears noting that while the Court does not hesitate to cite legislative history that supports its view of certain statutory
provisions, see ante, at 579, 165 L. Ed. 2d, at 745-747, and n 10, it makes no citation of the legislative history pertaining to Article
36(b), which contradicts its interpretation of that provision. Indeed, if it were authoritative, the only legislative history relating to
Article 36(b) would confirm the obvious--Article 36(b)s uniformity requirement pertains to uniformity between the three branches
of the Armed Forces, and no more. When that subsection was introduced as an amendment to Article 36, its author explained that it
would leave the three branches enough leeway to provide a different provision where it is absolutely necessary because there are
some differences in the services. Hearings on H. R. 2498 before the Subcommittee No. 1 of the House Committee on Armed
Services, 81st Cong., 1st Sess., 1015 (1949). A further statement explained that there might be some slight differences that would
pertain as to the Navy in contrast to the Army, but at least [Article 36(b)] is an expression of the congressional intent that we want
it to be as uniform as possible. Ibid.
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548 U.S. 557, *712; 126 S. Ct. 2749, **2842; 165 L. Ed. 2d 723, ***827
courts-martial. Ante, at 623, 165 L. Ed.

requirements of our war policy and
the importance of providing justice
2d, at 772-773. This is simply not the case.
On the same day that the President issued
for the individuals . . . and each
Military Commission Order No. 1, the
deviation from the standard kinds of
Secretary of Defense explained that the
rules that we have in our criminal
president [***828] decided to establish
courts was motivated by the desire
to strike this balance between
military commissions because he wanted
individual justice and the broader
the option of a process that is different
war policy. Ibid. (remarks of
from those processes which we already
Douglas J. Feith, Under Secretary of
have, namely, the federal [**2843] court
Defense for Policy (emphasis
system . . . and the military court system,
added)).
Dept. of [*713] Defense News Briefing on
Military Commissions (Mar. 21, 2002) The Court provides no explanation why
(remarks of Donald Rumsfeld), available the Presidents determination that
at
employing court-martial procedures in the
http://www.dod.gov/transcripts/2002/t03212002_t0321sd.html
military commissions established pursuant
(as visited June 26, 2006, and available in to Military Commission Order No. 1 would
Clerk of Courts case file) (hereinafter hamper our war effort is in any way
News Briefing), and that [t]he inadequate to satisfy its newly minted
commissions are intended to be different . practicability requirement. On the
. . because the [P]resident recognized that contrary, this determination is precisely the
there had to be differences to deal with the kind for which the Judiciary has neither
unusual situation we face and that a aptitude, facilities nor responsibility and
different approach was needed. Ibid. The which has long been held to belong in the
President reached this conclusion because domain of political power not subject to
judicial [*714] intrusion or inquiry.
were in the middle of a war, and .
Chicago & Southern Air Lines, Inc. v.
. . had to design a procedure that
Waterman S. S. Corp., 333 U.S. 103, at
would allow us to pursue justice for
111, 68 S. Ct. 431, 92 L. Ed. 568 (1948).
these individuals while at the same
And, in the context of the present conflict,
time prosecuting the war most
it is exactly the kind of determination
effectively. And that means setting
Congress countenanced when it authorized
rules that would allow us to preserve
the President to use all necessary and
our intelligence secrets, develop
appropriate force against our enemies.
more information about terrorist
Accordingly, the Presidents determination
activities that might be planned for
is sufficient to satisfy any practicability
the future so that we can take action
requirement imposed by Article 36(b).
to prevent terrorist attacks against
the United States. . . . [T]here was a
The Court further contends that Hamdans
constant
balancing
of
the
commission is unlawful because it fails to
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548 U.S. 557, *714; 126 S. Ct. 2749, **2843; 165 L. Ed. 2d 723, ***828
provide him the right to be present at his

trial, as recognized in 10 U.S.C.. 839(c)
(2000 ed., Supp. 2006). Ante, at 624, 165
L. Ed. 2d, at 773. But 839(c) applies to
courts-martial, not military commissions.
It provides:
When the members of a
court-martial deliberate or vote, only
the members may be present. All
other proceedings, including any
other consultation of the members
of the court with counsel or the
military judge, shall be made a part
of the record and shall be in the
presence of the accused, the defense
counsel, the trial counsel, and, in
cases in which a military judge has
been [***829] detailed to the court,
the military judge.
In context, all other proceedings plainly
refers exclusively to other proceedings
pertaining to a court-martial. 18 This is
[**2844] confirmed by the provisions
subsequent reference to members of the
court and to cases in which a military
judge has been detailed to the court. It is
also confirmed by the other provisions of
839, which refer only to courts-martial.
See 839(a)(1)-(4) ([A]ny time after the
service of charges which have been referred
for trial to a court-martial composed of a
military judge and members, the military
[*715] judge may . . . call the court into
session without the presence of the
members for the purpose of hearing
motions,
issuing
rulings,
holding
arraignments, receiving pleas, and
performing various procedural functions).
See also 839(b) (Proceedings under
subsection (a) shall be conducted in the
presence of the accused). Section 839(c)
simply does not address the procedural
requirements of military commissions.
B
The Court contends that Hamdans military
commission is also unlawful because it
violates Common Article 3 of the Geneva
Conventions, see ante, at 629-635, 165 L.
Ed. 2d, at 775-780. Furthermore, Hamdan
contends that his commission is unlawful
because it violates various provisions of
the Third Geneva Convention. These
contentions are untenable.
1
As an initial matter, and as the Court of
Appeals concluded, both of Hamdans
Geneva Convention claims are foreclosed
by Johnson v. Eisentrager, 339 U.S. 763,
70 S. Ct. 936, 94 L. Ed. 1255 (1950). In
that case the respondents claimed, inter
alia, that their military commission lacked
jurisdiction because it failed to provide
them with certain procedural safeguards
that they argued were required under the
Geneva Conventions. Id., at 789-790, 70 S.
Ct. 936, 94 L. Ed. 1255. While this Court
rejected the underlying merits of the
respondents Geneva Convention claims,
id., at 790, 70 S. Ct. 936, 94 L. Ed. 1255,
18
In addition to being foreclosed by the text of the provision, the Courts suggestion that 10 U.S.C. 839(c) (2000 ed., Supp.
2006) applies to military commissions is untenable because it would require, in military commission proceedings, that the accused
be present when the members of the commission voted on his guilt or innocence.
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548 U.S. 557, *715; 126 S. Ct. 2749, **2844; 165 L. Ed. 2d 723, ***829
it also held, in the alternative, that the

respondents could not assert . . . that
anything in the Geneva Convention makes
them immune from prosecution or
punishment for war crimes, id., at 789, 70
S. Ct. 936, 94 L. Ed. 1255. The Court
explained:
We are not holding that these
prisoners have no right which the
military authorities are bound to
respect. The United States, by the
Geneva Convention of July 27, 1929,
47 Stat. 2021, concluded with
forty-six other countries, including
the German Reich, an agreement
upon the treatment to be accorded
captives. These [*716] prisoners
claim to be and are entitled to its
protection. It is, however, the
obvious scheme of the Agreement
that responsibility for observance
and enforcement of these rights is
upon political and military
authorities. Rights of alien enemies
are vindicated under it only through
protests and intervention of
protecting powers as the [***830]
rights of our citizens against foreign
governments are vindicated only by
Presidential intervention. Id., at
789, n. 14, 70 S. Ct. 936, 94 L. Ed.
1255.
This alternative holding is no less binding
than if it were the exclusive basis for the
Courts decision. See Massachusetts v.
United States, 333 U.S. 611, 623, 68 S. Ct.
747, 92 L. Ed. 968, 1948-1 C.B. 117
(1948). While the Court attempts to cast
Eisentragers unqualified, alternative

holding as footnote dictum, ante, at 627,
165 L. Ed. 2d, at 774-775, it does not
dispute the correctness of its conclusion,
namely, that the provisions of the 1929
Geneva Convention were not judicially
enforceable because that Convention
contemplated that diplomatic measures by
political and military authorities were the
exclusive mechanisms [**2845] for such
enforcement. Nor does the Court suggest
that the 1949 Geneva Conventions departed
from this framework. See ante, at ____,
165 L. Ed. 2d, at 775 (We may assume
that the obvious scheme of the 1949
Conventions is identical in all relevant
respects to that of the 1929 Convention).
Instead, the Court concludes that petitioner
may seek judicial enforcement of the
provisions of the Geneva Conventions
because they are . . . part of the law of
war. And compliance with the law of war
is the condition upon which the authority
set forth in Article 21 is granted. Ante, at
628, 165 L. Ed. 2d, at 775 (citation
omitted). But Article 21 authorizes the use
of military commissions; it does not purport
to render judicially enforceable aspects of
the law of war that are not so enforceable
of their own accord. See Quirin, 317 U.S.,
at 28, 63 S. Ct. 2, 87 L. Ed. 3 (by enacting
Article 21, Congress has explicitly
provided, so far as it may constitutionally
do so, that military tribunals shall have
jurisdiction to try offenders or offenses
against the law of war). The Court cannot
escape Eisentragers holding [*717]
merely by observing that Article 21
mentions the law of war; indeed, though
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Eisentrager did not specifically consider

the Courts novel interpretation of Article
21, Eisentrager involved a challenge to the
legality of a World War II military
commission, which, like all such
commissions, found its authorization in
Article 15 of the Articles of War, the
predecessor to Article 21 of the UCMJ.
Thus, the Courts interpretation of Article
21 is foreclosed by Eisentrager.
In any event, the Courts argument is too
clever
by
half.
The
judicial
non-enforceability of the Geneva
Conventions derives from the fact that
those Conventions have exclusive
enforcement mechanisms, see Eisentrager,
supra, at 789, n. 14, 70 S. Ct. 936, 94 L.
Ed. 1255, and this, too, is part of the law of
war. The Courts position thus rests on the
assumption that Article 21s reference to
the laws of war selectively incorporates
only those aspects of the Geneva
Conventions that the Court finds
convenient, namely, the substantive
requirements of Common Article 3, and
not those aspects of the Conventions that
the Court, for whatever reason, disfavors,
namely the Conventions exclusive
diplomatic enforcement scheme. The Court
provides no account of why the partial
incorporation of the Geneva Conventions
should extend only so far--and no
further--because none is available beyond
its evident preference to adjudicate those
matters that the law of war, through the
Geneva Conventions, consigns exclusively
to the political branches.
[***831] Even if the Court were correct
that Article 21 of the UCMJ renders
judicially enforceable aspects of the law of

war that are not so enforceable by their
own terms, Article 21 simply cannot be
interpreted to render judicially enforceable
the particular provision of the law of war at
issue here, namely, Common Article 3 of
the Geneva Conventions. As relevant,
Article 21 provides that [t]he provisions
of this chapter conferring jurisdiction upon
courts-martial do not deprive military
commissions . . . of concurrent jurisdiction
with respect to offenders or offenses that
by statute or by [*718] the law of war may
be tried by military commissions. 10
U.S.C. 821 (emphasis added). Thus, to
the extent Article 21 can be interpreted as
authorizing judicial enforcement of aspects
of the law of war that are not otherwise
judicially enforceable, that authorization
only extends to provisions of the law of
war that relate to whether a particular
offender or a particular offense is
triable by military commission. Common
Article 3 of the Geneva Conventions, the
sole provision of the Geneva Conventions
relevant to the Courts holding, relates to
neither. Rather, it relates exclusively to the
particulars of the [**2846] tribunal itself,
namely, whether it is regularly constituted
and whether it afford[s] all the judicial
indispensable by civilized peoples. Third
Geneva Convention, Art. 3, P 1(d), Relative
to the Treatment of Prisoners of War, Aug.
12, 1949, [1955] 6 U. S. T. 3316, 3320, T.
I. A. S. No. 3364.
2
In addition to being foreclosed by
Eisentrager, Hamdans claim under
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548 U.S. 557, *718; 126 S. Ct. 2749, **2846; 165 L. Ed. 2d 723, ***831
Common Article 3 of the Geneva

Conventions is meritless. Common Article
3 applies to armed conflict not of an
international character occurring in the
territory of one of the High Contracting
Parties. 6 U. S. T., at 3318. Pursuant to
[his] authority as Commander in Chief and
Chief Executive of the United States, the
President has accept[ed] the legal
conclusion of the Department of Justice . .
. that common Article 3 of Geneva does
not apply to . . . al Qaeda . . . detainees,
because, among other reasons, the relevant
conflicts are international in scope and
common Article 3 applies only to armed
conflict not of an international character.
App. 35. Under this Courts precedents,
the meaning attributed to treaty provisions
by the Government agencies charged with
their negotiation and enforcement is entitled
to great weight. Sumitomo Shoji America,
Inc. v. Avagliano, 457 U.S. 176, 184-185,
102 S. Ct. 2374, 72 L. Ed. 2d 765 (1982);
United States v. Stuart, 489 U.S. 353, 369,
109 S. Ct. 1183, 103 L. Ed. 2d 388 (1989).
Our duty to defer to the [*719] Presidents
understanding of the provision at issue
here is only heightened by the fact that he
is acting pursuant to his constitutional
authority as Commander in Chief and by
the fact that the subject matter of Common
Article 3 calls for a judgment about the
nature and character of an armed conflict.
See
generally
United
States
v.
Curtiss-Wright Export Corp., 299 U.S. 304,
320, 57 S. Ct. 216, 81 L. Ed. 255 (1936).
international in character in the sense that

it is occurring in various nations around
the globe. Thus, it is also occurring in the
territory of more than one of the High
Contracting Parties. The Court does not
dispute the Presidents judgments [***832]
respecting the nature of our conflict with al
Qaeda, nor does it suggest that the
Presidents interpretation of Common
Article 3 is implausible or foreclosed by
the text of the treaty. Indeed, the Court
concedes that Common Article 3 is
principally concerned with furnish[ing]
minimal protection to rebels involved in . .
. a civil war, ante, at 631, 165 L. Ed. 2d,
at 777, precisely the type of conflict the
Presidents interpretation envisions to be
subject to Common Article 3. Instead, the
Court, without acknowledging its duty to
defer to the President, adopts its own,
admittedly plausible, reading of Common
Article 3. But where, as here, an ambiguous
treaty provision (not of an international
character) is susceptible of two plausible,
and reasonable, interpretations, our
precedents require us to defer to the
Executives interpretation.
3
But even if Common Article 3 were

judicially enforceable and applicable to the
present conflict, petitioner would not be
entitled to relief. As an initial matter, any
claim petitioner has under Common Article
3 is not ripe. The only relevant acts that
are and shall remain prohibited under
The Presidents interpretation of Common Common Article 3 are the passing of
Article 3 is reasonable and should be sentences and the carrying out of
sustained. The conflict with al Qaeda is executions without previous judgment
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pronounced
[*720]
by a regularly
indispensable by civilized [**2847]
peoples. Art. 3, P 1(d), 6 U. S. T., at 3318,
3320 (emphasis added). As its terms make
clear, Common Article 3 is only violated,
as relevant here, by the act of passing of
sentenc[e], and thus Hamdan will only
have a claim if his military commission
convicts him and imposes a sentence.
Accordingly, as Hamdans claim is
contingent [upon] future events that may
not occur as anticipated, or indeed may not
occur at all, it is not ripe for adjudication.
Texas v. United States, 523 U.S. 296, 300,
118 S. Ct. 1257, 140 L. Ed. 2d 406 (1998)
(internal quotation marks omitted). 19
Indeed, even if we assume he will be
convicted and sentenced, whether his trial
will be conducted in a manner so as to
deprive him of the judicial guarantees
which are recognized as indispensable by
civilized peoples is entirely speculative.
And premature adjudication of Hamdans
claim is especially inappropriate here
because reaching the merits of the dispute
would force us to decide whether an action
taken by one of the other two branches of
the
Federal
Government
was
unconstitutional. Raines v. Byrd, 521 U.S.
811, 819-820, 117 S. Ct. 2312, 138 L. Ed.
2d 849 (1997).
In any event, Hamdans military

commission
complies
with
the
requirements of Common Article 3. It is
plainly regularly constituted because such
commissions have been employed
throughout our history to try unlawful
combatants for crimes against the law of
war. This Court has recounted that history
as follows: [***833]
[*721] By a practice dating from
1847 and renewed and firmly

established during the Civil War,
military commissions have become
adopted as authorized tribunals in
this country in time of war. . . . Their
competency has been recognized not
only in acts of Congress, but in
executive proclamations, in rulings
of the courts, and in the opinions of
the Attorneys General. Madsen,
343 U.S., at 346, n. 8, 72 S. Ct. 699,
96 L. Ed. 988.
Hamdans commission has been constituted
in accordance with these historical
precedents. As I have previously explained,
the procedures to be employed by that
commission, and the Executives authority
to alter those procedures, are consistent
with the practice of previous American
military commissions. See supra, at
706-712, 165 L. Ed. 2d, at 824-826, and n
15.
19
The Court does not dispute the conclusion that Common Article 3 cannot be violated unless and until Hamdan is convicted and
sentenced. Instead, it contends that the Geneva Conventions d[o] not direct an accused to wait until sentence is imposed to
challenge the legality of the tribunal that is to try him. Ante, at 626, n 55, 165 L. Ed. 2d, at 774. But the Geneva Conventions do
not direct defendants to enforce their rights through litigation, but through the Conventions exclusive diplomatic enforcement
provisions. Moreover, neither the Courts observation respecting the Geneva Conventions nor its reference to the equitable doctrine
of abstention bears on the constitutional prohibition on adjudicating unripe claims.
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The
Court
concludes
Hamdans
commission fails to satisfy the requirements
of Common Article 3 not because it differs
from the practice of previous military
commissions but because it deviate[s]
from
[the
procedures]
governing
courts-martial. Ante, at 634, 165 L. Ed.
2d, at 779. But there is neither a statutory
nor historical requirement that military
commissions conform to the structure and
practice of courts-martial. A military
commission is a different tribunal, serving
a different function, and thus operates
pursuant to different procedures. The
150-year pedigree of the military
commission is itself sufficient to establish
that such tribunals are regularly
constituted court[s]. Art. 3, P 1(d), 6 U. S.
T., at 3320.
[**2848] Similarly, the procedures to be
employed by Hamdans commission afford

all the judicial guarantees which are
peoples. Neither the Court nor petitioner
disputes the Governments description of
those procedures.
Petitioner is entitled to appointed
military legal counsel, 32 C.F.R.
9.4(c)(2), and may retain a civilian
attorney (which he has done), 32
C.F.R. 9.4(c)(2)(iii)(B). Petitioner is
entitled to the presumption of
innocence, [*722] 32 C.F.R. 9.5(b),
proof beyond a reasonable doubt, 32
C.F.R. 9.5(c), and the right to remain
silent, 32 C.F.R. 9.5(f). He may

confront witnesses against him, 32
C.F.R. 9.5(i), and may subpoena his
own witnesses, if reasonably
available, 32 C.F.R. 9.5(h). Petitioner
may personally be present at every
stage of the trial unless he engages
in disruptive conduct or the
prosecution introduces classified or
otherwise protected information for
which no adequate substitute is
available and whose admission will
not deprive him of a full and fair
trial, 32 C.F.R. 9.5(k); Military
Commission Order No. 1 (Dept of
Defense Aug. 31, 2005) 6(B)(3)
and (D)(5)(b). If petitioner is found
guilty, the judgment will be reviewed
by a review panel, the Secretary of
Defense, and the President, if he
does not designate the Secretary as
the final decisionmaker. 32 C.F.R.
9.6(h). The final judgment is subject
to review in the Court of Appeals for
the District of Columbia Circuit and
ultimately in this Court. See DTA
1005(e)(3), 119 Stat. 2743; 28 U.S.C.
1254(1). Brief for Respondents 4.
Notwithstanding these provisions, which
in my judgment easily satisfy the nebulous
standards of Common [***834] Article 3,
20
the plurality concludes that Hamdans
commission is unlawful because of the
possibility that Hamdan will be barred
from proceedings and denied access to
20
Notably, a prosecutor before the Quirin military commission has described these procedures as a substantial improvement over
those in effect during World War II, further observing that [t]hey go a long way toward assuring that the trials will be full and
fair. National Institute of Military Justice, Procedures for Trials by Military Commissions of Certain Non-United States Citizens in
the War Against Terrorism, p x (2002) (foreword by Lloyd N. Cutler).
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evidence that may be used to convict him.

Ante, at 633-635, 165 L. Ed. 2d, at 778-780.
But, under the commissions rules, the
Government may not impose such bar or
denial on Hamdan if it would render his
trial unfair, [*723] a question that is
clearly within the scope of the appellate
review contemplated by regulation and
statute.
Moreover, while the Executive is surely
not required to offer a particularized
defense of these procedures prior to their
application, the procedures themselves
make clear that Hamdan would only be
excluded (other than for disruption) if it
were necessary to protect classified (or
classifiable) intelligence, Dept. of Defense,
Military Commission Order No. 1,
6(B)(3) (Aug. 31, 2005), including the
sources and methods for gathering such
intelligence. The Government has
explained that we want to make sure that
these proceedings, which are going on in
the middle of the war, do not interfere with
our war effort and . . . because of the way
we would be able to handle interrogations
and intelligence information, may actually
assist us in promoting our war aims.
News Briefing (remarks of Douglas J.
Feith, Under Secretary of Defense for
Policy). And this Court has concluded, in
the very context of a threat to reveal our
Nations intelligence gathering sources and
methods, that [i]t is obvious and
unarguable that no governmental interest
[**2849] is more compelling than the
security of the Nation, Haig, 453 U.S., at
307, 101 S. Ct. 2766, 69 L. Ed. 2d 640
(quoting Aptheker v. Secretary of State,
378 U.S. 500, 509, 84 S. Ct. 1659, 12 L.

Ed. 2d 992 (1964)), and that [m]easures
to protect the secrecy of our Governments
foreign intelligence operations plainly serve
these interests, Haig, supra, at 307, 101
S. Ct. 2766, 69 L. Ed. 2d 640. See also
Snepp v. United States, 444 U.S. 507, 509,
n. 3, 100 S. Ct. 763, 62 L. Ed. 2d 704
(1980) (per curiam) (The Government
has a compelling interest in protecting
both the secrecy of information important
to our national security and the appearance
of confidentiality so essential to the
effective operation of our foreign
intelligence service); Curtiss-Wright, 299
U.S., at 320, 57 S. Ct. 216, 81 L. Ed. 255.
This interest is surely compelling here.
According to the Government, [b]ecause
al Qaeda operates as a clandestine force
relying on sleeper agents to mount surprise
attacks, one of the most critical fronts in
the current war involves gathering
intelligence about future terrorist attacks
and how the terrorist network [*724]
operates-- identifying where its operatives
are, how it plans attacks, who directs
operations, and how they communicate.
Brief for United States in No. 03-4792,
United States v. Moussaoui (CA4), p 9. We
should not rule out the possibility that this
compelling interest can be protected, while
at the same time affording Hamdan (and
others like him) a fair trial.
[***835] In these circumstances, civilized
peoples would take into account the

context of military commission trials
against unlawful combatants in the war on
terrorism, including the need to keep certain
information secret in the interest of
Angelo Tannuzzo
Page 129 of 136

548 U.S. 557, *724; 126 S. Ct. 2749, **2849; 165 L. Ed. 2d 723, ***835
preventing future attacks on our Nation

and its foreign installations so long as it
did not deprive the accused of a fair trial.
Accordingly, the Presidents understanding
of the requirements of Common Article 3
is entitled to great weight. See supra, at
718, 165 L. Ed. 2d, at 831.
4
See Prize Cases, 67 U.S. 635, 2 Black, at

670, 17 L. Ed. 459.
***
For these reasons, I would affirm the
judgment of the Court of Appeals. Justice
Alito, with whom Justice Scalia and Justice
Thomas join in Parts I-III, dissenting.
For the reasons set out in Justice Scalias

dissent, which I join, I would hold that we
lack jurisdiction. On the merits, I join
Justice Thomas dissent with the [**2850]
exception of Parts I, II-C-1, and III-B-2,
which concern matters that I find
unnecessary to reach. I add the following
comments to provide a further explanation
of my reasons for disagreeing with the
Article 2 of the Convention provides that holding of the Court.
the present Convention shall apply to all I
cases of declared war or of any other
armed conflict which may arise between The holding of the Court, as I understand
two or more of the High Contracting it, rests on the following reasoning. A
Parties. 6 U. S. T., at 3318. Pursuant to military commission is lawful only if it is
[his] authority as Commander in Chief and authorized by 10 U.S.C. 821; this
Chief Executive of the United States, the provision permits the use of a commission
President has determined that the to try offenders or offenses that by
Convention is inapplicable here, explaining statute or by the law of war may be tried
that none of the provisions of Geneva by such a commission; because no statute
apply to our conflict with al Qaeda in provides that an offender such as petitioner
Afghanistan or elsewhere throughout the or an offense such as the one with which
world because, among other reasons, al he is charged may be tried by a military
Qaeda is not a High Contracting Party. commission, he may be tried by military
App. 35. The Presidents findings about commission only if the trial is authorized
the nature of the present conflict with by the law of war; the Geneva
respect to members of al Qaeda operating Conventions are part of the law of war; and
in Afghanistan represents a core [*725] Common Article 3 of the Conventions
exercise of his Commander in Chief prohibits petitioners trial because the
authority that this Court is bound to respect. commission before which he would be
In addition to Common Article 3, which
applies to conflicts not of an international
character, Hamdan also claims that he is
entitled to the protections of the Third
Geneva Convention, which applies to
conflicts between two or more High
Contracting Parties. There is no merit to
Hamdans claim.
Angelo Tannuzzo
Page 130 of 136

548 U.S. 557, *725; 126 S. Ct. 2749, **2850; 165 L. Ed. 2d 723, ***835
tried is not a regularly constituted court,

Third Geneva Convention, Art. 3, P 1(d),
Relative to the Treatment of [***836]
Prisoners of War, Aug. 12, 1949, [1955] 6
U. S. T. 3316, 3320, T. I. A. S. No. 3364.
I disagree with this holding because
petitioners commission is a regularly
constituted court.
[*726]
Common Article 3 provides as
follows:
In the case of armed conflict not of
an international character occurring
in the territory of one of the High
Contracting Parties, each Party to
the conflict shall be bound to apply,
as a minimum, the following
provisions:
(1) . . . [T]he following acts are and
shall remain prohibited . . .:
(d) [T]he passing of sentences and
the carrying out of executions
without
previous
judgment
pronounced
by
a
regularly
constituted court affording all the
judicial guarantees which are
recognized as indispensable by
civilized peoples. Id., at 3318-3320
(emphasis added).
requirements. The first requirement is

largely self-explanatory, and, with respect
to the third, I note only that on its face it
imposes a uniform international standard
that does not vary from signatory to
signatory.
The
second
element
(regularly
constituted) is the one on which the Court
relies, and I interpret this element to require
that the court be appointed or established
in accordance with the appointing countrys
domestic law. I agree with the Court, see
ante, at 632, n 64, 165 L. Ed. 2d, at 778,
that, as used in Common Article 3, the
term regularly is synonymous with
properly. The term constitute means
appoint, set up, or establish,
Websters Third New International
Dictionary 486 (1961), and therefore
regularly constituted means properly
appointed, set up, or established. Our cases
repeatedly use the phrases regularly
constituted and properly constituted in
this sense. See, e.g., Hamdi v. [*727]
Rumsfeld, 542 U.S. 507, 538, 124 S. Ct.
2633, 159 L. Ed. 2d 578 (2004) (plurality
opinion of OConnor, J.); Nguyen v. United
States, 539 U.S. 69, 83, 123 S. Ct. 2130,
156 L. Ed. 2d 64 (2003); Ryder v. United
States, 515 U.S. 177, 187, 115 S. Ct. 2031,
132 L. Ed. 2d 136 (1995); Williams v.
Bruffy, 96 U.S. 176, 185, 24 L. Ed. 716
(1878).
Common Article 3 thus imposes three

requirements. Sentences may be imposed
only by (1) a court (2) that is regularly
constituted and (3) that affords all the
judicial guarantees which are recognized [**2851] In order to determine whether a
as indispensable by civilized peoples. Id., court has been properly appointed, set up,
at 3320.
or established, it is necessary to refer to a
I see no need here to comment extensively body of law that governs such matters. I
on the meaning of the first and third interpret Common Article 3 as looking to
Angelo Tannuzzo
Page 131 of 136

548 U.S. 557, *727; 126 S. Ct. 2749, **2851; 165 L. Ed. 2d 723, ***836
the domestic law of the appointing country

because I am not aware of any international
law standard regarding the way in which
such a court must be appointed, set up, or
established, and because different countries
with different government structures handle
this matter differently. Accordingly, a
regularly constituted court is a court that
has been appointed, set up, or established
in accordance with the domestic law of the
appointing country.
II
In contrast to this interpretation, the
opinions supporting the judgment today
hold that the military commission [***837]
before which petitioner would be tried is
not a regularly constituted court (1)
because no evident practical need
explains why its structure and
composition . . . deviate from conventional
court-martial standards, ante, at 647, 165
L. Ed. 2d, at 787 (Kennedy, J., concurring
in part); see also ante, at 632-633, 165 L.
Ed. 2d, at 778 (opinion of the Court); and
(2) because, contrary to 10 U.S.C. 836(b),
the procedures specified for use in the
proceeding before the military commission
impermissibly differ from those provided
under the Uniform Code of Military Justice
(UCMJ) for use by courts-martial, ante, at
615-625, 165 L. Ed. 2d, at 768-774
(opinion of the Court); ante, at 651-653,
165 L. Ed. 2d, at 789-791 (Kennedy, J.,
concurring in part). I do not believe that
either of these grounds is sound.
as a regularly constituted court unless it

is similar in structure and composition to a
[*728] regular military court or unless
there is an evident practical need for the
divergence. There is no reason why a court
that differs in structure or composition
from an ordinary military court must be
viewed as having been improperly
constituted.
Tribunals
that
vary
significantly in structure, composition, and
procedures may all be regularly or
properly constituted. Consider, for
example, a municipal court, a state trial
court of general jurisdiction, an Article I
federal trial court, a federal district court,
and an international court, such as the
International Criminal Tribunal for the
former Yugoslavia. Although these courts
are differently constituted and differ
substantially in many other respects, they
are all regularly constituted.
If Common Article 3 had been meant to

require trial before a countrys military
courts or courts that are similar in structure
and composition, the drafters almost
certainly would have used language that
expresses that thought more directly. Other
provisions of the Convention Relative to
the Treatment of Prisoners of War refer
expressly to the ordinary military courts
and expressly prescribe the uniformity
principle that Justice Kennedy sees in
Common Article 3, see ante, at 643-644,
165 L. Ed. 2d, at 785-786. Article 84
provides that [a] prisoner of war shall be
tried only by a military court, unless the
A
existing laws of the Detaining Power
I see no basis for the Courts holding that expressly permit the civil courts to try a
a military commission cannot be regarded member of the armed forces of the
Angelo Tannuzzo
Page 132 of 136

548 U.S. 557, *728; 126 S. Ct. 2749, **2851; 165 L. Ed. 2d 723, ***837
Detaining Power in respect of the particular

offence alleged to have been committed by
the prisoner of war. 6 U. S. T., at 3382.
Article 87 states that [p]risoners of war
may not be sentenced by the military
authorities and courts of the Detaining
Power to any penalties except those
provided for in respect of members of the
armed forces of the said Power who have
committed the same acts. Id., at 3384.
Similarly, Article 66 of the Geneva
[**2852]
Convention Relative to the
Protection of Civilian Persons in Time of
War--a provision to which the Court looks
for guidance in interpreting Common
Article 3, see ante at 632, 165 L. Ed. 2d, at
778--expressly provides that civilians
[*729] charged with committing crimes in
occupied territory may be handed over by
the occupying power to its properly
constituted, non-political military courts,
on condition that the said courts sit in the
occupied country. 6 U. S. T. 3516,
[***838] 3558-3560, T. I. A. S. No. 3365.
If Common Article 3 had been meant to
incorporate a uniformity principle, it
presumably would have used language like
that employed in the provisions noted
above. For these reasons, I cannot agree
with the Courts conclusion that the
military commission at issue here is not a
regularly constituted court because its
structure and composition differ from those
of a court-martial.
permits an occupying power to try civilians

in its properly constituted, non-political
military courts, 6 U. S. T., at 3558. The
commentary on this provision states:
The courts are to be regularly
constituted, This wording definitely
excludes all special tribunals. It is
the ordinary military courts of the
Occupying Power which will be
competent. 4 Intl Comm. of Red
Cross,
Commentary:
Geneva
Convention Relative to the
Protection of Civilian Persons in
Time of War 340 (J. Pictet gen. ed.
1958)
(hereinafter
GCIV
Commentary).
The Court states that this commentary

defines regularly constituted tribunals
to include ordinary military courts and
definitely exclud[e] all special tribunals.
Ante, at 632, 165 L. Ed. 2d, at 778
(alteration in original). This much is clear
from the commentary itself. Yet the mere
statement that a military court is a regularly
constituted tribunal is of no help in
addressing petitioners claim that his
commission is not such a tribunal. As for
the commentarys mention of special
tribunals, it is doubtful whether we should
take this gloss on Article 66--which
prohibits an occupying power from trying
civilians in courts set up specially for that
purpose--to tell [*730] us much about the
Contrary to the suggestion of the Court, very different context addressed by
see ante, at 632, 165 L. Ed. 2d, at 778, the Common Article 3.
commentary on Article 66 of the Fourth
Geneva Convention does not undermine But even if Common Article 3 recognizes
this conclusion. As noted, Article 66 this prohibition on special tribunals, that
Angelo Tannuzzo
Page 133 of 136

548 U.S. 557, *730; 126 S. Ct. 2749, **2852; 165 L. Ed. 2d 723, ***838
prohibition does not cover petitioners

tribunal. If special means anything in
contradistinction to regular, it would be
in the sense of special as relating to a
single thing, and regular as uniform in
course, practice, or occurrence. Websters
Third New International Dictionary 2186,
1913. Insofar as respondents propose to
conduct the tribunals according to the
procedures of Military Commission Order
No.
1
and
orders
promulgated
thereunder--and nobody has suggested
respondents intend otherwise--then it seems
that petitioners tribunal, like the hundreds
of others respondents propose to conduct,
is very much regular and not at all special.
statute requiring the federal district courts

to follow a procedure that is
unconstitutional, the statute would be
invalid, but the district courts would not.
Likewise, if some of the procedures that
may be used in military commission
proceedings are improper, the appropriate
remedy is to proscribe the use of those
particular procedures, not to outlaw [*731]
the commissions. I see no justification for
striking down the entire commission
structure simply because it is possible that
petitioners trial might involve the use of
some procedure that is improper.
Returning to the three elements of Common

Article 3--(1) a court, (2) that is appointed,
set up, and established in compliance with
domestic law, and (3) that respects
universally
recognized
fundamental
rights--I conclude that all of these elements
are satisfied in this case.
I also disagree with the Courts conclusion

that petitioners military commission is
illegal, ante, at 625, 165 L. Ed. 2d, at
774, because its procedures allegedly do
not comply with 10 U.S.C. 836. Even if
836(b), unlike Common Article 3, does
impose at least a limited uniformity
requirement amongst the tribunals
contemplated by the UCMJ, but see ante,
at 711-712, 165 L. Ed. 2d, at 827 (Thomas,
J., dissenting), and even if it is assumed for
the sake of argument that some of the
procedures
specified
in
Military
Commission Order No. 1 impermissibly
deviate from [**2853]
court-martial
procedures, it does not follow [***839]
that the military commissions created by
that order are not regularly constituted or
that trying petitioner before such a
commission would be inconsistent with
the law of war. If Congress enacted a
III
A
First, the commissions qualify as courts.
Second, the commissions were appointed,
set up, and established pursuant to an order
of the President, just like the commission
in Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 2,
87 L. Ed. 3 (1942), and the Court
acknowledges that Quirin recognized that
the statutory predecessor of 10 U.S.C.
821 preserved the Presidents power to
convene military commissions, ante, at
593, 165 L. Ed. 2d, at 754. Although
Justice Kennedy concludes that an
acceptable degree of independence from
Angelo Tannuzzo
Page 134 of 136

548 U.S. 557, *731; 126 S. Ct. 2749, **2853; 165 L. Ed. 2d 723, ***839
the Executive is necessary to render a

commission regularly constituted by the
standards of our Nations system of
justice, ante at 645, 165 L. Ed. 2d, at 786,
he offers no support for this proposition
(which in any event seems to be more
about fairness or integrity than regularity).
The commission in Quirin was certainly
no more independent from the Executive
than the commissions at issue here, and 10
U.S.C. 821 and 836 do not speak to this
issue. 1
Finally, the commission procedures, taken
as a whole, and including the availability
of review by a United States Court of
Appeals and by this Court, do not provide
a basis for
[*732]
deeming the
commissions to be illegitimate. The Court
questions the following two procedural
rules: the rule allowing the Secretary of
Defense to change the governing rules
from time to time (which does not rule
out midtrial changes), see ante, at 645, n
65, 165 L. Ed. 2d, at 778 (opinion of the
Court); ante, at 645, 165 L. Ed. 2d, at 786
(Kennedy, J., concurring in part), and the
rule that permits the admission of any
evidence that would have probative value
to a reasonable person (which departs
from our legal systems usual rules of
evidence), see ante, at 614-615, 623, 165
L. Ed. 2d, at 767, 773 (opinion of the
Court); ante, at 651-653, 165 L. Ed. 2d, at
789-791 (Kennedy, J., concurring in part).

2
[***840] Neither of these two [**2854]
rules undermines the legitimacy of the
commissions.
Surely the entire commission structure
cannot be stricken merely because it is
possible that the governing rules might be
changed during the course of one or more
proceedings. If a change is made and
applied during the course of an ongoing
proceeding and if the accused is found
guilty, the validity of that procedure can be
considered in the review proceeding for
that case. After all, not every midtrial
change will be prejudicial. A midtrial
change might amend the governing rules
in a way that is inconsequential or actually
favorable to the accused.
As for the standard for the admission of
evidence at commission proceedings, the
Court does not suggest that this rule
violates the international standard
incorporated into Common Article 3 (the
judicial guarantees which are recognized
as indispensable by civilized peoples, 6
U. S. T., at 3320). Rules of evidence differ
from country to country, and much of the
world does not follow aspects of our
evidence [*733] rules, such as the general
prohibition against the admission of
hearsay. See, e.g., Blumenthal, Shedding
Some Light on Calls for Hearsay Reform:
Section 821 looks to the law of war, not separation-of-powers issues. And 836, as Justice Kennedy notes, concerns
procedures, not structure, see ante, at 645, 65 L. Ed. 2d, at 786.
2
The plurality, but not Justice Kennedy, suggests that the commission rules are improper insofar as they allow a defendant to be
denied access to evidence under some circumstances. See, ante, at 633-635, 165 L. Ed. 2d, at 778-780. But here too, if this
procedure is used in a particular case and the accused is convicted, the validity of this procedure can be challenged in the review
proceeding in that case. In that context, both the asserted need for the procedure and its impact on the accused can be analyzed in
concrete terms.
Angelo Tannuzzo
Page 135 of 136

548 U.S. 557, *733; 126 S. Ct. 2749, **2854; 165 L. Ed. 2d 723, ***840
Civil Law Hearsay Rules in Historical and

Modern Perspective, 13 Pace Intl L. Rev.
93, 96-101 (2001). If a particular accused
claims to have been unfairly prejudiced by
the admission of particular evidence, that
claim can be reviewed in the review
proceeding for that case. It makes no sense
to strike down the entire commission
structure based on speculation that some
evidence might be improperly admitted in
some future case.
of justice with safeguards aimed at

eliminating the possibility of judicial
errors. The Convention has rightly
proclaimed that it is essential to do
this even in time of war. We must be
very clear about one point: it is only
summary justice which it is
intended to prohibit. No sort of
immunity is given to anyone under
this provision. There is nothing in it
to prevent [*734] a person presumed
to be guilty from being arrested and
so placed in a [***841] position
where he can do no further harm;
and it leaves intact the right of the
State to prosecute, sentence and
punish according to the law. GCIV
Commentary 39 (emphasis added).
In sum, I believe that Common Article 3 is

satisfied here because the military
commissions (1) qualify as courts, (2) that
were appointed and established in
accordance with domestic law, and (3) any
procedural improprieties that might occur
in particular cases can be reviewed in
It seems clear that the commissions at
those cases.
issue here meet this standard. Whatever
B
else may be said about the system that was
The commentary on Common Article 3 created by Military Commission Order No.
supports
this
interpretation.
The 1 and augmented by the Detainee Treatment
commentary on Common Article 3, P 1(d), Act, 1005(e)(1), 119 Stat. 2742, this
system--which features formal [**2855]
in its entirety states:
trial procedures, multiple levels of
[A]lthough
[sentences
and
administrative review, and the opportunity
executions without a proper trial]
for review by a United States Court of
were common practice until quite
Appeals and by this Court--does not
recently, they are nevertheless
dispense summary justice.
shocking to the civilized mind. . . .
***
Sentences and executions without
previous trial are too open to error.
For these reasons, I respectfully dissent.
Summary justice may be effective
on account of the fear it arouses . . .,
References
but it adds too many further innocent
victims to all the other innocent
74 Am Jur 2d, Treaties 11, 19, 30-32;
victims of the conflict. All civilized
78 Am Jur 2d, War 35 10 U.S.C.S. 801
nations surround the administration
et seq. Military Rules of Evidence Manual
Angelo Tannuzzo
Page 136 of 136

548 U.S. 557, *734; 126 S. Ct. 2749, **2855; 165 L. Ed. 2d 723, ***841
101.03, 305.05 (Matthew Bender) L Ed

Digest, Treaties 20; War 31 L Ed Index,
Courts-Martial; Geneva Convention
Annotation ReferencesSupreme Courts
views as to whether enactment,
amendment, or repeal of statute pending
appeal applies to such appeal. 108 L. Ed.

2d 1061. Retroactive application of federal
legislation as violating due process clause
of
Federal
Constitutions
Fifth
Amendment--Supreme Court cases. 107 L.
Ed. 2d 1105.
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User Name: Angelo Tannuzzo

Date and Time: Oct 15, 2014

10:13 p.m. EDT

Job Number: 13759589

Hamdan v. Rumsfeld, 548 U.S. 557

As of: October 15, 2014 10:13 PM EDT

SALIM AHMED HAMDAN, Petitioner v. cases, provisions, plurality, offenses,

convened to try him was not part of the

HN1 See Pub. L. No. 109-148, 1005(e),

HN2 Pub. L. No. 109-148, 1005(e)(2),

HN3 Pub. L. No. 109-148, 1005(e)(3)(A),

that Congress struck between military

which is the United States Court of Military

II, 2, cl. 1, but vests in Congress the

in the President. Both powers imply many

Constitutional Law > The Judiciary >

includes all authorities essential to its due

proper authority of Congress, nor Congress

HN9 Exigency alone will not justify the

Constitutional Law > The Presidency >

Military & Veterans Law > Military

HN10 The United States Constitution

HN13 Judicial precedent recognizes that

HN14 Neither the Authorization for Use of

acknowledge a general Presidential

HN16 The Uniform Code of Military

HN17 See Unif. Code Mil. Justice art.

HN18 The uniformity principle is not an

Military & Veterans Law > Military

HN15 Together, the Uniform Code of

Military & Veterans Law > Military to

HN20 Unif. Code Mil. Justice art. 36, 10

Military & Veterans Law > Military

HN22 Regardless of the nature of the

HN23 Article 3, often referred to as

HN21 Unif. Code Mil. Justice art. 36(b),

contradistinction to a conflict between

scope of the article must be as wide as

HN26 Common article 3 of the Geneva

HN27 At a minimum, a military

requirements are general ones, crafted to

commit offenses triable by military

and Breyer, JJ., and which constituted the

Also, Stevens, J., joined by Souter,

Supreme Courts DTA conclusion in the

(b) that was appointed, set up, and

decided, on the basis of any of several

Non-Citizens in the War Against

(3) The UCMJ conditioned the Presidents

(3) The commissions procedures did not Circuit, exclusive jurisdiction to

determine the validity of any final decision

DTAs legislative history; and (b) otherwise LEdHN[6] [6]

LEdHN[7A] [7A]LEdHN[7B] [7B]

LEdHN[5A] [5A]LEdHN[5B] [5B]

case, for (a) the detainee was not a member

LEdHN[8A] [8A]LEdHN[8B] [8B]

COURTS-MARTIAL 11 > -- civilian

Abstention by the United States Supreme