OPINION OF THE COURT HAMDAN V. RUMSFELD 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-184 SALIM AHMED HAMDAN, PETITIONER v. DONALD
H. RUMSFELD, SECRETARY OF DEFENSE, et al.

															on writ of certiorari to the united states court of
appeals for the district of columbia circuit

															[June 29, 2006]

															   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.

															   Petitioner Salim Ahmed Hamdan, a
Yemeni national, is in custody at an American prison in Guantanamo
Bay, Cuba. In 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.

															   Hamdan filed petitions for writs
of habeas corpus and mandamus to challenge the Executive Branch’s
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.

															   The District Court granted Hamdan’s request
for a writ of habeas corpus. 344 F. Supp. 2d 152 (DC 2004). The
Court of 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 extraordinary measure
raising important questions about the balance of powers in our
constitutional structure, Ex parte Quirin, 317 U. S.
1 , 19 (1942), we granted certiorari. 546 U. S. ___ (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 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 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 “use all necessary
and appropriate force against those nations, organizations, or
persons he determines planned, authorized, 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 imprisonment or death.” Ibid. The November 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. Altenberg, 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 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 commission’s
jurisdiction—namely, the November 13 Order and the President’s July
3, 2003, declaration that Hamdan is eligible for trial by military
commission. The next nine paragraphs, collectively entitled
“General Allegations,” describe al Qaeda’s activities from its
inception in 1989 through 2001 and identify Osama bin Laden as the
group’s 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 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 Osama bin Laden’s “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
Laden’s 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 Hamdan’s 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 Hamdan’s
continued detention at Guantanamo Bay was warranted because he was
an “enemy combatant.”[ Footnote
1 ] Separately, proceedings before the military commission
commenced.

															   On November 8, 2004, however, the District
Court granted Hamdan’s petition for habeas corpus and stayed the
commission’s proceedings. It concluded that the President’s
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) 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 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 Government’s invitation to abstain
from considering Hamdan’s challenge. Cf. Schlesinger v. Councilman, 420
U. S. 738 (1975). On the merits, the panel rejected the
District Court’s 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 objection to
the military commission’s jurisdiction, and held that Hamdan’s
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

															   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. ___ (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 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.

															   Subsection (e) of §1005, which is entitled
“Judicial Review of Detention of Enemy Combatants,” supplies the
basis for the Government’s jurisdictional argument. The subsection
contains three numbered paragraphs. The first paragraph amends the
judicial code as follows:

															   “(1) In general.—Section 2241 of
title 28, United States Code, is amended by adding at the end the
following:

															.     .     .     .     .

															   “ ‘(e) Except as provided in
section 1005 of the Detainee Treatment Act of 2005, no court,
justice, or judge shall have jurisdiction to hear or consider—

															   “ ‘(1) 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; or

															   “ ‘(2) any other action against the
United States or its agents relating to any aspect of the detention
by the Department of Defense of an alien at Guantanamo Bay, Cuba,
who—

															   “ ‘(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 have been properly detained as an
enemy combatant.’ ” §1005(e), id. , at 2741–2742.

															   Paragraph (2) of subsection (e)
vests in the Court of Appeals for the District of Columbia Circuit
the “exclusive jurisdiction to determine the validity of any final
decision of a [CSRT] that an alien is properly designated as an
enemy combatant.” Paragraph (2) also delimits the scope of that
review. See §§1005(e)(2)(C)(i)–(ii), id. , at 2742.

															   Paragraph (3) mirrors paragraph (2) in
structure, but governs judicial review of final decisions of
military commissions, not CSRTs. It vests in the Court of Appeals
for the District of Columbia Circuit “exclusive jurisdiction to
determine the validity of any final decision rendered pursuant to
Military Commission Order No. 1, dated August 31, 2005 (or any
successor military order).” §1005(e)(3)(A), id. , at
2743.[ Footnote 2 ] 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:

															   “(i) whether the final decision
[of the military commission] was consistent with the standards and
procedures specified in the military order referred to in
subparagraph (A); and

															   “(ii) 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.”
§1005(e)(3)(D), ibid .

															   Finally, §1005 contains an
“effective date” provision, which reads as follows:

															   “(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.[ Footnote 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 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 Government’s preferred reading
raises grave questions about Congress’ authority to impinge upon
this Court’s appellate jurisdiction, particularly in habeas cases.
Support for this argument is drawn from Ex parte Yerger, 8
Wall. 85 (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, 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; see also Felker v. Turpin, 518 U. S. 651 (1996); Durousseau v. United States, 6 Cranch 307, 314
(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, 13 Wall. 128 (1872). Cf. Ex parte
McCardle, 7 Wall. 506, 514 (1869) (holding that Congress had
validly foreclosed one avenue of appellate review where its repeal
of habeas jurisdiction, reproduced in the margin,[ Footnote 4 ] could not have been “a plainer
instance of positive exception”). Hamdan also suggests that, if the
Government’s 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 the Government’s 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.

															   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 (1994) (citing Bruner v. United States, 343 U. S. 112 (1952); Hallowell v. Commons, 239 U. S. 506 (1916)); see Republic of Austria v. Altmann, 541 U. S. 677 , 693 (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.[ Footnote 5 ] If a
statutory provision “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. We have explained, however,
that, unlike other intervening changes in the law, a
jurisdiction-conferring or jurisdiction&nbhyph;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. 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 party’s
liability for past conduct, or impose new duties with respect to
transactions already completed.” Landgraf , 511 U. S., at
280.[ Footnote 6 ] And if a new
rule has no retroactive effect, the presumption against
retroactivity will not prevent its application to a case that was
already pending when the new rule was enacted.

															   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.[ Footnote
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 (1997).[ Footnote 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; see also, e.g. , Russello v. United States, 464 U. S. 16 , 23
(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 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 statute’s 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. That contrast, combined with
the fact that the amendments at issue “affect[ed] substantive
entitlement to relief,” id. , at 327, warranted drawing a
negative inference.

															   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 intent that the latter
[section] not be applied to the general run of pending cases.” Id. , at 329. If anything, the evidence of deliberate
omission is stronger here than it 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. 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; see also Field v. Mans, 516 U. S. 59 , 75
(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).[ Footnote 9 ] Congress’ rejection of the very
language that would have achieved the result the Government urges
here weighs heavily against the Government’s interpretation. See Doe v. Chao, 540 U. S. 614 , 621–623
(2004).[ Footnote 10 ]

															   The Government nonetheless offers two reasons
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
(1999), the Government argues, Congress’ different treatment of
them is of no significance.

															   This argument must fail because it rests on a
false distinction between the “jurisdictional” nature of subsection
(e)(1) and the “procedural” character of subsections (e)(2) and
(e)(3). 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 (3) vest
exclusive,[ Footnote 11 ] but
limited, jurisdiction in the 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 contrary, maintains that Congress
had “ample reason” to provide explicitly for application of
subsections (e)(2) and (e)(3) to pending cases because
“jurisdiction-stripping” provisions like subsection (e)(1) have
been treated differently under our retroactivity jurisprudence than
“jurisdiction-conferring” ones like subsections (e)(2) and (e)(3). Post , at 8 (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,” post , at 8
(emphasis in original); but see Rasul v. Bush, 542 U. S. 466 (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 8,[ Footnote 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.[ Footnote 13 ]
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 Government’s 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 District
of Columbia 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” 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 the scope of subsection (e)(2) or (e)(3). There is,
then, no absurdity.[ Footnote
14 ]

															   The Government’s more general suggestion that
Congress can have had no good reason for preserving habeas
jurisdiction over cases that had been brought by detainees prior to
enactment of the DTA not only is belied by the legislative history,
see n. 10, supra , but is otherwise without merit. There is
nothing absurd about a scheme under which pending habeas
actions—particularly those, like this one, that challenge the very
legitimacy of the tribunals whose judgments Congress would like to
have reviewed—are preserved, and more routine challenges to final
decisions rendered by those tribunals are carefully channeled to a
particular court and through a particular lens of review.

															   Finally, we cannot leave unaddressed Justice
Scalia’s contentions that the “meaning of §1005(e)(1) is entirely
clear,” post , at 6, and 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,” post , at 3 (emphasis in
original). Only by treating the Bruner rule as an
inflexible trump (a thing it has never been, see n. 7, supra ) and ignoring both the rest of §1005’s text and its
drafting history can one conclude as much. Congress here expressly
provided that subsections (e)(2) and (e)(3) applied to pending
cases. It chose not to so provide—after having been presented with
the option—for subsection (e)(1). The omission is an integral part
of the statutory scheme that muddies whatever “plain meaning” may
be discerned from blinkered study of subsection (e)(1) alone. The
dissent’s speculation about what Congress might have intended by
the omission not only is counterfactual, cf. n. 10, supra (recounting legislative history), but rests on both a
misconstruction of the DTA and an erroneous view our precedents,
see supra , at 17, and n. 12.

															   For these reasons, we deny the Government’s
motion to dismiss.[ Footnote
15 ]

															III

															   Relying on our decision in Councilman, 420
U. S. 738 , the Government argues that, even if we have
statutory jurisdiction, we should 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.”
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 for trial on
charges that he violated the UCMJ by selling, transferring, and
possessing marijuana. 420 U. S., at 739–740. Objecting that the
alleged offenses were not “ ‘service connected,’ ” id. , at 740, 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. See id. , at
741, 759. The District Court granted his request for injunctive
relief, and the Court of Appeals affirmed.

															   We granted certiorari and reversed. Id. , at 761. 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, as a matter of comity, federal courts
should normally abstain from intervening in pending court-martial
proceedings against members of the Armed Forces,[ Footnote 16 ] and further that there was
nothing in the particular circumstances of the officer’s case to
displace that general rule. See id. , at 740, 758. Councilman identifies two
considerations of comity that together favor abstention pending
completion of ongoing court-martial proceedings against service
personnel. See New v. Cohen , 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. 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
persuasion … .’ ” Id. , at 758 (quoting
H. R. Rep. No. 491, 81st Cong., 1st Sess., p. 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 servicemen’s constitutional
rights,” 420 U. S., at 758. See id. , at 755–758.[ Footnote 17 ]

															   The same cannot be said here; 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 Nation’s 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 judges of the
Court of Military Appeals (now called the United States Court of
Appeals for the Armed Forces, see Pub. L. 103–337, 108 Stat. 2831).
Instead, under Dept. of Defense Military Commission Order No. 1
(Commission Order No. 1), which was issued by the President on
March 21, 2002, and amended most recently on August 31, 2005, and
which governs the procedures for Hamdan’s commission, any
conviction would be reviewed by a panel consisting of three
military officers designated by the Secretary of Defense.
Commission Order No. 1 §6(H)(4). Commission Order No. 1 provides
that appeal of a review panel’s decision may be had only to the
Secretary of Defense himself, §6(H)(5), and then, finally, to the
President, §6(H)(6).[ Footnote
18 ]

															   We have no doubt that the various 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 Armed Forces, and thus
bear insufficient conceptual similarity to state courts to warrant
invocation of abstention principles.[ Footnote 19 ]

															   In sum, neither of the two comity
considerations underlying our decision to abstain in Councilman applies to the circumstances of this case.
Instead, this Court’s decision in Quirin is the most
relevant precedent. In Quirin , seven German saboteurs were
captured upon arrival by submarine in New York and Florida. 317 U.
S., at 21. The President convened a military commission to try the
saboteurs, who then filed habeas corpus petitions in the United
States District Court for the District of Columbia challenging
their trial by commission. We granted the saboteurs’ petition for
certiorari to the Court of Appeals before judgment. See id. , at 19. Far from abstaining pending the conclusion of
military proceedings, which were ongoing, we convened a special
Term to hear the case and expedited our review. That course of
action was warranted, we explained, “[i]n view of the public
importance of the questions raised by [the cases] and of the duty
which rests on the courts, in time of war as well as in time of
peace, to preserve unimpaired the constitutional safeguards of
civil liberty, and because in our opinion the public interest
required that we consider and decide those questions without any
avoidable delay.” Ibid .

															   As the Court of Appeals here recognized, Quirin “provides a compelling historical precedent for the
power of civilian courts to entertain challenges that seek to
interrupt the processes of military commissions.” 415 F. 3d,
at 36.[ Footnote 20 ] The
circumstances of this case, like those in Quirin , simply
do not implicate the “obligations of comity” that, under
appropriate circumstances, justify abstention. Quackenbush v. Allstate Ins. Co., 517 U. S. 706 , 733
(1996) (Kennedy, J., concurring).

															   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 (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 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 Hamdan’s challenge.

															IV

															   The military commission, a
tribunal neither mentioned in the Constitution nor created by
statute, was born of military necessity. See W. Winthrop, Military
Law and Precedents 831 (rev. 2d ed. 1920) (hereinafter Winthrop).
Though foreshadowed in some respects by earlier tribunals like the
Board of General Officers that General Washington convened to try
British Major John André for spying during the Revolutionary War,
the commission “as such” was inaugurated in 1847. Id. , at
832; G. Davis, A Treatise on the Military Law of the United States
308 (2d ed. 1909) (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
(emphases 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 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).

															   Exigency alone, of course, will not justify
the establishment 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 , 4 Wall. 2, 121 (1866)
(“Certainly no part of the judicial power of the country was
conferred on [military commissions]”); Ex parte
Vallandigham, 1 Wall. 243, 251 (1864); see also Quirin , 317 U. S., at 25 (“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; In re
Yamashita , 327 U. S.
1 , 11 (1946).

															   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: “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 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 indemnity from the justice of
the legislature.” 4 Wall., at 139–140.[ Footnote 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 (“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,[ Footnote 22 ] reads as follows:

															“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.

															   We have no occasion to revisit Quirin ’s 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 Government’s 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, 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.[ Footnote 23 ] That
much is evidenced by the Court’s 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. The Government would have us dispense with the
inquiry that the Quirin 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. Neither of these
congressional Acts, however, expands the President’s authority to
convene military commissions. First, while we assume that the AUMF
activated the President’s war powers, see Hamdi v. Rumsfeld , 542 U. S. 507 (2004)
(plurality opinion), and that those powers include the authority to
convene military commissions in appropriate circumstances, see id. , at 518; Quirin , 317 U. S., at 28–29; see
also Yamashita , 327 U. S., at 11, 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 (“Repeals by
implication are not favored”).[ Footnote 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 Hamdan’s
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. 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, the task of this Court is, as
it was in Quirin , to decide whether Hamdan’s 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
situations. See Bradley & Goldsmith, Congressional
Authorization and the War on Terrorism, 118 Harv. L. Rev.
2048, 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 Duncan v. Kahanamoku, 327 U. S. 304 (1946); Milligan , 4 Wall., at 121–122, but is well
recognized.[ Footnote 25 ] 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 enemy where
civilian government cannot and does not function.” Duncan ,
327 U. S., at 314; see Milligan , 4 Wall., at 141–142
(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
(1952).[ Footnote 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, 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).[ Footnote 27 ]
Not only is its jurisdiction limited to offenses cognizable during
time of war, but its role is primarily a factfinding one—to
determine, typically on the battlefield 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
Roosevelt’s use of such a tribunal to try Nazi saboteurs captured
on American soil during the War. 317 U. S.
1 . 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 . 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.

															   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 (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 offenses committed within the field of the
command of the convening commander.” Winthrop 836. The “field of
command” in these circumstances means the “theatre of war.” Ibid. Second, the offense charged “must have been
committed within the period of the war.”[ Footnote 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 only
“[i]ndividuals of the enemy’s army who have been guilty of
illegitimate warfare or other offences in violation of the laws of
war” and members of one’s 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.[ Footnote 29 ]

															   All parties agree that Colonel Winthrop’s
treatise accurately describes the common law governing military
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 Hamdan’s 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.

															   The charge against Hamdan, described in detail
in Part I, supra , alleges a conspiracy extending over a
number of years, from 1996 to November 2001.[ Footnote 30 ] All but two months of that more
than 5-year-long period preceded the attacks of 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.[ Footnote 31 ] Neither the purported agreement
with Osama bin Laden and others to commit war crimes, nor a single
overt act, is alleged to 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.

															   These facts alone cast doubt on the legality
of the charge and, hence, the commission; as Winthrop makes plain,
the offense alleged must have been committed both in a theater of
war and during , not before, the relevant conflict. But the
deficiencies in the time and place allegations also
underscore—indeed are symptomatic of—the most serious defect of
this charge: The offense it alleges is not triable by law-of-war
military commission. See Yamashita , 327 U. S., at 13
(“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 the law of
war”).[ Footnote 32 ]

															   There is no suggestion that Congress has, in
exercise of its constitutional authority to “define and punish . .
. Offences against the Law of Nations,” U. S. Const., Art. I,
§8, cl. 10, positively identified “conspiracy” as a war
crime.[ Footnote 33 ] As we
explained in Quirin , that is not necessarily fatal to the
Government’s claim of authority to try the alleged offense by
military 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. 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
(1996) (acknowledging that Congress “may not delegate the power to
make laws”); Reid, 354 U. S., at 23–24 (“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”).[ Footnote 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 as
an offense against the law of war. 317 U. S., at 30; see id. , at 35–36 (“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
(stating that the provisions 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 (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 as such in this
country by any law-of-war military commission not exercising some
other form of jurisdiction,[ Footnote 35 ] and does not appear in either the Geneva
Conventions or the Hague Conventions—the major treaties on the law
of war.[ Footnote 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 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 little support to the
Government’s 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 of relieving or attempting to relieve, or corresponding
with or giving intelligence to, the enemy.

															“[III.] Violation of Article 82, defining the offense of
spying.

															“[IV.] Conspiracy to commit the offenses alleged in charges [I,
II, and III].” 317 U. S., at 23.

															The Government, defending its charge, argued that
the conspiracy alleged “constitute[d] an additional violation of
the law of war.” Id. , at 15. The saboteurs disagreed; they
maintained that “[t]he charge of conspiracy can not stand if the
other charges fall.” Id. , at 8. The Court, however,
declined to resolve the dispute. It concluded, first, that the
specification supporting Charge I adequately alleged a “violation
of the law of war” that was not “merely colorable or without
foundation.” Id. , at 36. The facts the Court deemed
sufficient for this purpose were that the defendants, admitted
enemy combatants, entered upon U. S. territory in time of war
without uniform “for the purpose of destroying property used or
useful in prosecuting the war.” That act was “a hostile and
warlike” one. Id. , at 36, 37. The Court was careful in its
decision to identify an overt, “complete” act. Responding to the
argument that the saboteurs had “not actually committed or
attempted to commit any act of depredation or entered the theatre
or zone of active military 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
those lines, in civilian dress and with hostile purpose.” Id. , at 38. “The offense was complete when with that
purpose they entered—or, having so entered, they remained upon—our
territory in time of war without uniform or other appropriate means
of identification.” Ibid. Turning to the other charges alleged, the
Court explained that “[s]ince the first specification of Charge I
sets forth a violation of the law of war, we have no occasion to
pass on the adequacy of the second specification of Charge I, or to
construe the 81st and 82nd Articles of War for the purpose of
ascertaining whether the specifications under Charges II and III
allege violations of those Articles or whether if so construed they
are constitutional.” Id. , at 46. No mention was made at
all of Charge IV—the conspiracy charge.

															   If anything, Quirin supports Hamdan’s
argument that conspiracy is not a violation of the law of war. Not
only did the Court pointedly omit any discussion of the conspiracy
charge, but its analysis of Charge I placed special emphasis on the completion of an offense; it took seriously the saboteurs’
argument that there can be no violation of a law of war—at least
not one triable by military commission—without the actual
commission of or attempt to commit a “hostile and warlike act.” Id. , at 37–38.

															   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., p. 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-À-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 President’s 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 (emphasis added).

															   Winthrop and Howland are only 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 “offenses against
the laws and usages of war” “passed upon and punished by military
commissions.” Howland 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 ibid. (citing Record Books of the Judge
Advocate General Office, R. 2, 144; R. 3, 401, 589, 649; R. 4, 320;
R. 5, 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.

															   As we have seen, the military commissions
convened during the Civil War functioned at once as martial law or
military government tribunals and as law-of-war commissions. See n.
27, supra . Accordingly, they regularly tried war crimes
and ordinary crimes together. Indeed, as Howland observes, “[n]ot
infrequently 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. Winthrop’s
conspiracy “of the first and second classes combined” is, like
Howland’s 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 (emphasis in original) (citing W. Finlason, Martial Law 130
(1867)).

															   Justice Thomas cites as evidence 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] to injure the health
and destroy the lives of 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 24–25 (dissenting
opinion) (quoting H. R. Doc. No. 314, 55th Cong., 3d Sess.,
785 (1865); 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
result. Id. , at 789–790. Crucially, Judge Advocate General
Holt determined that one of Wirz’s 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 (emphases
added).[ Footnote 37 ]

															   Finally, international sources confirm that
the crime charged here is not a recognized violation of the law of
war.[ Footnote 38 ] As
observed above, see supra , at 40, 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). The
International Military Tribunal at Nuremberg, over the
prosecution’s 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,[ Footnote 39 ] and convicted only Hitler’s most senior
associates of conspiracy to wage aggressive war, see S. Pomorski,
Conspiracy 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 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’ ”).[ Footnote
40 ]

															   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 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. Because the charge does not support the
commission’s jurisdiction, the commission lacks authority to try
Hamdan.

															   The charge’s shortcomings are not merely
formal, but are indicative of a broader inability on the
Executive’s part here to satisfy the most basic precondition—at
least in the absence of specific congressional authorization—for
establishment of military commissions: military necessity. Hamdan’s
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 (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,[ Footnote 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 stretch of the historical evidence
or this Court’s precedents, a military commission established by
Executive Order under the authority of Article 21 of the UCMJ may
lawfully try a person and subject him to punishment.

															VI

															   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. The
UCMJ conditions the President’s 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,” Quirin ,
317 U. S., at 28—including, inter alia , the four Geneva
Conventions signed in 1949. See Yamashita , 327 U. S., at
20–21, 23–24. The procedures that the Government has decreed will
govern Hamdan’s trial by commission violate these laws.

															A

															   The commission’s procedures are
set forth in Commission Order No. 1, which was amended most
recently on

															August 31, 2005—after Hamdan’s 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 officer’s 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 other rights typically afforded criminal defendants in
civilian courts and courts-martial. See §§5(A)–(P). These rights
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).[ Footnote
42 ] Appointed military defense counsel must be privy to these
closed sessions, but may, at the presiding officer’s discretion, be
forbidden to reveal to his or her client what took place therein. Ibid. Another striking feature of the rules
governing Hamdan’s 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 sworn. See
§§6(D)(2)(b), (3). Moreover, the accused and his civilian counsel
may be denied access to evidence 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 accused’s knowledge would not “result in
the denial of a full and fair trial.” §6(D)(5)(b).[ Footnote 43 ] Finally, a presiding
officer’s determination that evidence “would not have probative
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
accused’s 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 commission’s 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 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. 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 , precludes pre-enforcement review of procedural
rules, (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 commission’s “final
decision”[ Footnote 44 ]
before a federal court under the DTA. See §1005(e)(3), 119 Stat.
2743. Second, contrary to the Government’s assertion, there is a “basis to presume” that the procedures employed
during Hamdan’s 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
Hamdan’s complaints is that he will be, and indeed already has
been , excluded 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
the President under the DTA—is appropriate. We turn, then, to
consider the merits of Hamdan’s procedural challenge.

															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—confirm as much.[ Footnote
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, Antiterrorism Military Commissions: Courting
Illegality, 23 Mich. J. Int’l L. 1, 3–5 (2001–2002).

															   There is a glaring historical
exception to this general rule. The procedures and evidentiary
rules used to try General Yamashita near the end of World War II
deviated in significant respects from those then governing
courts-martial. See 327 U. S.
1 . The force of that precedent, however, has been seriously
undermined by post-World War II developments.

															   Yamashita, from late 1944 until September
1945, was Commanding General of the Fourteenth Army Group of the
Imperial Japanese Army, which had exercised control over the
Philippine Islands. On September 3, 1945, after American forces
regained control of the Philippines, Yamashita surrendered. Three
weeks later, he was charged with violations of the law of war. A
few weeks after that, he was arraigned before a military commission
convened in the Philippines. He pleaded not guilty, and his trial
lasted for two months. On December 7, 1945, Yamashita was convicted
and sentenced to hang. See id. , at 5; id. , at
31–34 (Murphy, J., dissenting). This Court upheld the denial of his
petition for a writ of habeas corpus.

															   The procedures and rules of evidence employed
during Yamashita’s trial departed so far from those used in
courts-martial that they generated an unusually long and vociferous
critique from two Members of this Court. See id. , at 41–81
(Rutledge, J., joined by Murphy, J., dissenting).[ Footnote 46 ] Among the dissenters’ primary
concerns was that the commission had free rein to consider all
evidence “which in the commission’s opinion ‘would be of assistance
in proving or disproving the charge,’ without any of the usual
modes of authentication.” Id. , at 49 (Rutledge, J.).

															   The majority, however, did not pass on the
merits of Yamashita’s procedural challenges because it concluded
that his status disentitled him to any protection under the
Articles of War (specifically, those set forth in Article 38, which
would become Article 36 of the UCMJ) or the Geneva Convention of
1929, 47 Stat. 2021 (1929 Geneva Convention). The Court explained
that Yamashita was neither a “person made subject to the Articles
of War by Article 2” thereof, 327 U. S., at 20, nor a protected
prisoner of war being tried for crimes committed during his
detention, id. , at 21.

															   At least partially in response to subsequent
criticism of General Yamashita’s trial, the UCMJ’s codification of
the Articles of War after World War II expanded the category of
persons subject thereto to include defendants in Yamashita’s (and
Hamdan’s) position,[ Footnote
47 ] and the Third Geneva Convention of 1949 extended
prisoner-of-war protections to individuals tried for crimes
committed before their capture. See 3 Int’l Comm. of Red
Cross,[ Footnote 48 ]
Commentary: Geneva Convention Relative to the Treatment of
Prisoners of War 413 (1960) (hereinafter GCIII Commentary)
(explaining that Article 85, which extends the Convention’s
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 Convention,
including this Court’s decision in Yamashita ). The most
notorious exception to the principle of uniformity, then, has been
stripped of its precedential value.

															   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:

															   “(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.

															   Article 36 places two
restrictions on the President’s 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 those
applied to courts-martial unless such uniformity proves
impracticable.

															   Hamdan argues that Commission Order No. 1
violates both of these restrictions; he maintains that the
procedures described in the Commission Order are inconsistent with
the UCMJ and that the Government has offered no explanation for
their deviation from the procedures governing courts-martial, which
are set forth in the Manual for Courts-Martial, United States (2005
ed.) (Manual for Courts-Martial). Among the inconsistencies Hamdan
identifies is that between §6 of the Commission Order, which
permits exclusion of the accused from proceedings and denial of his
access to evidence in certain circumstances, and the UCMJ’s
requirement that “[a]ll … proceedings” other than votes and
deliberations by courts-martial “shall be made a part of the record
and shall be in the presence of the accused.” 10 U. S. C. A.
§839(c) (Supp. 2006). Hamdan also observes that the Commission
Order dispenses with virtually all evidentiary rules applicable in
courts-martial.

															   The Government has three responses. First, it
argues, only 9 of the UCMJ’s 158 Articles—the ones that expressly
mention “military commissions”[ Footnote 49 ]—actually apply to commissions, and
Commission Order No. 1 sets forth no procedure that is “contrary to
or inconsistent with” those 9 provisions. Second, the Government
contends, military commissions would be of no use if the President
were hamstrung by those provisions of the UCMJ that govern
courts-martial. Finally, the President’s determination that “the
danger to the safety of the United States and the nature of
international terrorism” renders it impracticable “to apply in
military commissions … the principles of law and rules of evidence
generally recognized in the trial of criminal cases in the United
States district courts,” November 13 Order §1(f), is, in the
Government’s view, explanation enough for any deviation from
court-martial procedures. See Brief for Respondents 43–47, and n.
22.

															   Hamdan has the better of this argument.
Without reaching the question whether any provision of Commission
Order No. 1 is strictly “contrary to or inconsistent with” other
provisions of the UCMJ, we conclude that the “practicability”
determination the President has made is insufficient to justify
variances from the procedures governing courts-martial. Subsection
(b) of 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.[ Footnote
50 ]

															   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 Hamdan’s 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.[ Footnote 51 ]
And even if subsection (b)’s requirements may be satisfied without
such an official determination, the requirements of that subsection
are not satisfied here.

															   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
President’s 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.[ Footnote 52 ] Without for one moment underestimating
that danger, it is not evident to us why it should require, in the
case of Hamdan’s 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. A. §839(c) (Supp. 2006). 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 Government’s 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. That history explains why the military
commission’s 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, does
not detract from the force of this history;[ Footnote 53 ] 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 with here, the rules
specified for Hamdan’s trial are illegal.[ Footnote 54 ]

															D

															   The procedures adopted to try
Hamdan also violate the Geneva Conventions. The Court of Appeals
dismissed Hamdan’s Geneva Convention challenge on three independent
grounds: (1) the Geneva Conventions are not judicially enforceable;
(2) Hamdan in any event is not entitled to their protections; and
(3) even if he is entitled to their protections, Councilman abstention is appropriate. Judge Williams,
concurring, rejected the second ground but agreed with the majority
respecting the first and the last. As we explained in Part III, supra , the abstention rule applied in Councilman , 420
U. S. 738 , is not applicable here.[ Footnote 55 ] And for the reasons that follow, we hold
that neither of the other grounds the Court of Appeals gave for its
decision is persuasive.

															i

															   The Court of Appeals relied on Johnson v. Eisentrager, 339 U. S. 763 (1950), to
hold that Hamdan could not invoke the Geneva Conventions to
challenge the Government’s plan to prosecute him in accordance with
Commission Order No. 1. Eisentrager involved a challenge
by 21 German nationals to their 1945 convictions for war crimes by
a military tribunal convened in Nanking, China, and to their
subsequent imprisonment in occupied Germany. The petitioners
argued, inter alia , that the 1929 Geneva Convention
rendered illegal some of the procedures employed during their
trials, which they said deviated impermissibly from the procedures
used by courts-martial to try American soldiers. See id. ,
at 789. We rejected that claim on the merits because the
petitioners (unlike Hamdan here) had failed to identify any
prejudicial disparity “between the Commission that tried [them] and
those that would try an offending soldier of the American forces of
like rank,” and in any event could claim no protection, under the
1929 Convention, during trials for crimes that occurred before
their confinement as prisoners of war. Id. , at
790.[ Footnote 56 ]

															   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:

															“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.

															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
Convention,[ Footnote 57 ] and
even that that scheme would, absent some other provision of law,
preclude Hamdan’s invocation of the Convention’s provisions as an
independent source of law binding the Government’s actions and
furnishing petitioner with any enforceable right.[ Footnote 58 ] For, regardless of the nature
of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U. S. 407 (1886),
they are, as the Government does not dispute, part of the law of
war. See Hamdi, 542 U. S., at 520–521 (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 of that condition was no bar to Hamdan’s 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 Executive’s 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 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 Parties.” 6 U. S.
T., at 3318.[ Footnote 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
protections of those Conventions are not, it is argued, applicable
to Hamdan.[ Footnote 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.[ Footnote 61 ]
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[ Footnote 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 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 court affording all the judicial
guarantees which are recognized as indispensable by civilized
peoples.” Ibid .

															   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. The term “conflict not of an international
character” is used here in contradistinction to a conflict between
nations. So much is demonstrated by the “fundamental logic [of] the
Convention’s provisions on its 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, ¶1). High
Contracting Parties (signatories) also must abide by all terms of
the Conventions vis-À-vis one another even if one party to the
conflict is a nonsignatory “Power,” and must so abide vis-À-vis the
nonsignatory if “the latter accepts and applies” those terms. Ibid. (Art. 2, ¶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. 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”); 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”).

															   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 the Article must be
as wide as possible,” id. , at 36.[ Footnote 63 ] In fact, limiting language that
would have rendered Common Article 3 applicable “especially [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 application with a narrower range of rights than
did earlier proposed iterations. See GCIII Commentary 42–43.

															iii

															   Common Article 3, then, is
applicable here and, as indicated above, requires that Hamdan be
tried by a “regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized
peoples.” 6 U. S. T., at 3320 (Art. 3, ¶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
tribunals.” GCIV Commentary 340 (defining the term “properly
constituted” in Article 66, which the commentary treats as
identical to “regularly constituted”);[ Footnote 64 ] see also Yamashita , 327 U. S.,
at 44 (Rutledge, J., dissenting) (describing military commission as
a court “specially constituted for a 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 and procedures already in force in a
country.” Int’l Comm. of Red Cross, 1 Customary International
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 Hamdan’s 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 8
(opinion concurring in part). At a minimum, a military commission
“can be ‘regularly constituted’ by the standards of our military
justice system only if some practical need explains deviations from
court-martial practice.” Post , at 10. As we have
explained, see Part VI–C, supra , no such need has been
demonstrated here.[ Footnote
65 ]

															iv

															   Inextricably intertwined with the
question of regular constitution is the evaluation of the
procedures governing the tribunal and whether they afford “all the
judicial guarantees which are recognized as indispensable by
civilized peoples.” 6 U. S. T., at 3320 (Art. 3, ¶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 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.
Int’l L. 319, 322 (2003). Among the rights set forth in Article 75
is the “right to be tried in [one’s] presence.” Protocol I, Art.
75(4)(e).[ Footnote 66 ]

															   We agree with Justice Kennedy
that the procedures adopted to try Hamdan deviate from those
governing courts-martial in ways not justified by any “evident
practical need,” post , at 11, and for that reason, at
least, fail to afford the requisite guarantees. See post ,
at 8, 11–17. 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).[ Footnote 67 ]
That the Government has a compelling interest in denying Hamdan
access to certain sensitive information is not doubted. Cf. post , at 47–48 (Thomas, J., dissenting). But, at least
absent express statutory provision to the contrary, information
used to convict a person of a crime must be disclosed to him.

															v

															   Common Article 3 obviously
tolerates 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

															   We have assumed, as we must, that
the allegations made in the Government’s 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 Government’s 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.

															   The judgment of the Court of
Appeals is reversed, and the case is remanded for further
proceedings.

															It is so ordered.

															   The Chief Justice took no part in
the consideration or decision of this case. Footnote 1 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 (Jul. 7, 2004), available at http://www.defense
link.mil/news/Jul2004/d20040707review.pdf (all Internet materials
as visited June 26, 2006, and available in Clerk of Court’s case
file). Footnote 2 The military order referenced in this section
is discussed further in Parts III and VI, infra . Footnote 3 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). Footnote 4 “ ‘ 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.’ ” 7 Wall., at
508. Footnote 5 See Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939 , 951 (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 …”). Footnote 6 Cf. Hughes Aircraft , 520 U. S., at
951 (“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)). Footnote 7 In his insistence to the contrary, Justice
Scalia reads too much into Bruner v. United
States , 343 U. S. 112 (1952), Hallowell v. Commons, 239 U. S. 506 (1916), and Insurance Co. v. Ritchie, 5 Wall. 541 (1867). See post , at 2–4 (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
13–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, 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, ibid. , n. 7. Footnote 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
AEDPA’s enactment. We held that they did not. At the outset, we
rejected the State’s 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. Footnote 9 That paragraph (1), along with paragraphs (2)
and (3), is to “take effect on the date of 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 (2001) (quoting Landgraf v. USI Film
Products, 511 U. S. 244 , 257 (1994)). Certainly,
the “effective date” provision cannot bear the weight Justice
Scalia would place on it. See post , at 5, 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 17, and n. 12, that attempt
fails. Footnote 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 Act’s “effective date” provision that would have
made subsection (e)(1) applicable to pending cases. See, e.g. , 151 Cong. Rec. S12667 (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 DTA’s 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 14
(Scalia, J., dissenting).)

															   While statements attributed to the final
bill’s two other sponsors, Senators Graham and Kyl, arguably
contradict Senator Levin’s 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
Levin’s 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 12, n. 4 (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
Senator’s “assumption that pending cases are covered,” post , at 12, 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] cases.” Id. , at S12755. Footnote 11 The District of Columbia Circuit’s
jurisdiction, while “exclusive” in one sense, would not bar this
Court’s 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 Circuit’s decisions,
Section 1005(e)(2) and (3) … do not remove this Court’s
jurisdiction over such decisions under 28 U. S. C. §1254(1)”). Footnote 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 (2004), and Hughes
Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939 (1997). See post , at 8. 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; Hughes
Aircraft , 520 U. S., at 951, we have applied the same analysis
to statutes that have jurisdiction-stripping effect, see Lindh v. Murphy , 521 U. S. 320 , 327–328 (1997); id. , at 342–343 (Rehnquist, C. J., dissenting) (construing
AEDPA’s amendments as “ousting jurisdiction”). Footnote 13 See Landgraf , 511 U. S., at 271, n.
25 (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 (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”). Footnote 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 District of
Columbia Circuit. Footnote 15 Because we conclude that §1005(e)(1) does not
strip federal courts’ jurisdiction over cases pending on the date
of the DTA’s enactment, we do not decide whether, if it were
otherwise, this Court would nonetheless retain jurisdiction to hear
Hamdan’s appeal. Cf. supra , at 10. 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 (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”). Footnote 16 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 (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
(quoting Noyd v. Bond, 395 U. S. 683 , 696,
n. 8 (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. Footnote 17 See also Noyd , 395 U. S., at 694–696
(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 Captain’s 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 petitioner’s arguments”). Cf. Parisi v. Davidson, 405 U. S. 34 , 41–43
(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”). Footnote 18 If he chooses, the President may delegate
this ultimate decisionmaking authority to the Secretary of Defense.
See §6(H)(6). Footnote 19 Justice Scalia chides us for failing to
include the District of Columbia Circuit’s review powers under the
DTA in our description of the review mechanism erected by
Commission Order No. 1. See post , at 22. 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 52; §1005(e)(3), 119 Stat. 2743. Footnote 20 Having correctly declined to abstain from
addressing Hamdan’s 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 Hamdan’s 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 (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. Footnote 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)). Footnote 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
re-enacted 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 (1942)).” S. Rep. No. 486, 81st Cong., 1st Sess., 13
(1949). Footnote 23 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 (1952) (Jackson, J., concurring). The Government does not argue
otherwise. Footnote 24 On this point, it is noteworthy that the
Court in Ex parte Quirin , 317 U. S.
1 (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. Justice Thomas’ assertion that we
commit “error” in reading Article 21 of the UCMJ to place
limitations upon the President’s use of military commissions, see post , at 5 (dissenting opinion), ignores the reasoning in Quirin . Footnote 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 (emphases in original). Footnote 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, which may in some cases
extend beyond the “cessation of hostilities,” id. , at
348. Footnote 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, 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. Footnote 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. Footnote 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 ; In re Yamashita, 327 U. S.
1 (1946). Footnote 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). Footnote 31 Justice Thomas would treat Osama bin Laden’s
1996 declaration of jihad against Americans as the inception of the
war. See post , at 7–10 (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 President’s 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 8,
n. 3. 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 (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 Green’s 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. Int’l L.
832, 848 (1948) (emphases added) (cited post , at 9–10).
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 President’s
deployment of military force—the AUMF. Because we do not question
the Government’s position that the war commenced with the events of
September 11, 2001, the Prize Cases, 2 Black 635 (1863)
(cited post , at 2, 7, 8, and 10 (Thomas, J., dissenting)),
are not germane to the analysis.

															   Finally, Justice Thomas’ assertion that Julius
Otto Kuehn’s 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 Hamdan’s trial by commission, post , at 9, misses the mark in three critical respects.
First, Kuehn was tried for the 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 supra ,
n. 28), not a commission established exclusively to try
violations of the law of war. See ibid. 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 (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”). Footnote 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
guerilla,’ ” and aiding the enemy. See post , at
16–21, 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 15,
n. 7 (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 21, 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 guerilla,’ ” cf. post , at
18, n. 9 (citation omitted), a label alone does not render a
person susceptible to execution or other criminal punishment; the
charge of “ ‘being a guerilla’ ” 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 guerilla’ ” 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 18, n. 9.

															   Likewise, the suggestion that the Nuremberg
precedents support Hamdan’s conviction for the (uncharged) crime of
joining a criminal organization must fail. Cf. post , at
19–21. 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 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). Footnote 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 Appropriations Act, 1998, §583, 111 Stat.
2436 (same). Footnote 34 While the common law necessarily is
“evolutionary in nature,” post , at 13 (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. , R. v. Rimmington ,
[2006] 2 All E. R. 257, 275–279 (House of Lords); id. , at
279 (while “some degree of vagueness is inevitable and development
of the law is a recognised 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
(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. Footnote 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 23, n. 14
(Thomas, J., dissenting)) with “maliciously, unlawfully, and
traitorously murdering the said Abraham Lincoln.” H. R. Doc.
No. 314, 55th Cong., 1st 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). Footnote 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 Yamshita , 327 U. S., at
15–16. Footnote 37 The other examples Justice Thomas offers are
no more availing. The Civil War indictment against Robert Louden,
cited post , at 25, 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
Lenger 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 in civilian courts (like
treason) and violations of the law of war. Judge Advocate General
Holt, in recommending that Grenfel’s 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. Footnote 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. We need not test the validity of
that assumption here because the international sources only
corroborate the domestic ones. Footnote 39 Accordingly, the Tribunal determined to
“disregard the charges … that the defendants conspired to
commit War Crimes and Crimes against Humanity.” 22 Trial of the
Major War Criminals Before the International Military Tribunal 469
(1947); see also ibid . (“[T]he Charter does not define as
a separate crime any conspiracy except the one to commit acts of
aggressive war”). Footnote 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. Tadiæ , Judgment, Case
No. IT–94–1–A (ICTY App. Chamber, July 15, 1999); see also Prosecutor v. Milutinoviæ , Decision on Dragoljub
Ojdaniæ’s Motion Challenging Jurisdiction—Joint Criminal
Enterprise, Case No. IT–99–37–AR72, ¶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”). Footnote 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 8, n. 3; 28–30. 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 29. Footnote 42 The accused also may be excluded from the
proceedings if he “engages in disruptive conduct.” §5(K). Footnote 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 witness’s 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). Footnote 44 Any decision of the commission is not “final”
until the President renders it so. See Commission Order No. 1
§6(H)(6). Footnote 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. Coppée, Field Manual of
Courts-Martial, p. 104 (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.”). Footnote 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 (footnotes omitted). Footnote 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.

															   “(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 (2004). Footnote 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. Footnote 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). Footnote 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 35. 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 President’s determination of impracticability, to
courts-martial, provost courts, and military commissions alike) and subsection (b) (which imposes the uniformity
requirement). Footnote 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 5 (opinion concurring in
part), however, the level of deference accorded to a determination
made under subsection (b) presum- ably would not be as high as that
accorded to a determination under subsection (a). Footnote 52 Justice Thomas looks not to the President’s
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 36–38 (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
as Justice Kennedy elaborates in his separate opinion, the
structural and procedural defects of Hamdan’s commission extend far
beyond rules preventing access to classified information. Footnote 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 30, 31, 33, n. 16, 34, and 45. 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 petitioner’s trial, see 343 U. S., at 345, n. 6, and (3)
the procedures used to try the petitioner actually afforded more protection than those used in courts-martial, see id. , at 358–360; see also id. , at 358 (“[T]he
Military Government Courts for Germany . . . have had a less
military character than that of courts-martial”). Footnote 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
30–31, n. 16 (Thomas, J., dissenting) (quoting Winthrop 841).
Article 36(b), however, imposes a statutory command that must be
heeded. Footnote 55 Justice Thomas makes the different argument
that Hamdan’s Geneva Convention challenge is not yet “ripe” because
he has yet to be sentenced. See post , at 43–45. 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. Footnote 56 As explained in Part VI–C, supra ,
that is no longer true under the 1949 Conventions. Footnote 57 But see, e.g. , 4 Int’l Comm. of Red
Cross, Commentary: Geneva Convention Relative to the Protection of
Civilian Persons in Time of War 21 (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 in
prisoners of war was affirmed”). Footnote 58 But see generally Brief for Louis Henkin
et al. as Amici Curiae; 1 Int’l Comm. for the 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
a violation”); GCII Commentary 92; GCIV Commentary 79. Footnote 59 For convenience’s sake, we use citations to
the Third Geneva Convention only. Footnote 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 (hereinafter White House
Memorandum). Footnote 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. Footnote 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. Footnote 63 See also GCIII Commentary 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 General’s Legal Center
and School, Dept. of the Army, Law of War Handbook 144 (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, ¶218, 25 I. L. M. 1023)); Prosecutor v. Tadiæ , Case No. IT–94–1, Decision
on the Defence Motion for Interlocutory Appeal on Jurisdiction,
¶102 (ICTY App. Chamber, Oct. 2, 1995) (stating that “the character
of the conflict is irrelevant” in deciding whether Common Article 3
applies). Footnote 64 The commentary’s 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 “régulièrement
constitués” in place of “properly constituted.” Footnote 65 Further evidence of this tribunal’s 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”). Footnote 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, ¶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 30 (trial of Sergeant-Major Shigeru Ohashi), 75 (trial
of General Tanaka Hisakasu). Footnote 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 (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 (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
(1892) (exclusion of defendant from part of proceedings is
“contrary to the dictates of humanity” (internal quotation marks
omitted)); Joint Anti&nbhyph;Fascist Refugee Comm. v. McGrath, 341 U. S. 123 , 170,
n. 17, 171 (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. KENNEDY, J., CONCURRING IN PART HAMDAN V. RUMSFELD 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-184 SALIM AHMED HAMDAN, PETITIONER v. DONALD
H. RUMSFELD, SECRETARY OF DEFENSE, et al.

															on writ of certiorari to the united states court of
appeals for the district of columbia circuit

															[June 29, 2006]

															   Justice Kennedy, with whom
Justice Souter, Justice Ginsburg, and Justice Breyer join as to
Parts I and II, concurring in part.

															   Military Commission Order No. 1,
which governs the military commission established to try petitioner
Salim Hamdan for war crimes, exceeds limits that certain statutes,
duly enacted by Congress, have placed on the President’s 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 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 President’s
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 crisis. The Constitution is best preserved 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 69—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 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.

															   I join the Court’s opinion, save Parts V and
VI–D–iv. To state my reasons for this reservation, and to show my
agreement with the remainder of the Court’s analysis by identifying
particular deficiencies in the military commissions at issue, this
separate opinion seems appropriate.

															I

															   Trial by military commission
raises separation-of-powers concerns of the highest order. Located
within a single branch, these courts carry the risk that offenses
will be defined, prosecuted, and adjudicated by executive officials
without independent review. Cf. Loving v. United
States, 517 U.
S. 748 , 756–758, 760 (1996). Concentration of power puts
personal liberty in peril of arbitrary action by officials, an
incursion the Constitution’s three-part system is designed to
avoid. It is imperative, then, that when military tribunals are
established, full and proper authority exists for the Presidential
directive.

															   The proper framework for
assessing whether Executive actions are authorized is the
three-part scheme used by Justice Jackson in his opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). “When the President acts pursuant to an express or implied
authorization of Congress, his authority is at its maximum, for it
includes all that he possesses in his own right plus all that
Congress can delegate.” Id. , at 635. “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. And “[w]hen the President takes measures
incompatible with the expressed or implied will of Congress, his
power is at its lowest ebb.” Ibid. In this case, as the Court observes, the
President has acted in a field with a history of congressional
participation and regulation. Ante , at 28–30, 55–57. In
the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq. , which Congress enacted, building on earlier
statutes, in 1950, see Act of May 5, 1950, ch. 169, 64 Stat. 107,
and later amended, see, e.g., Military Justice Act of
1968, 82 Stat. 1335, Congress has set forth governing principles
for military courts. The UCMJ as a whole establishes an intricate
system of military justice. It authorizes courts-martial in various
forms, 10 U. S. C. §§816–820 (2000 ed. and Supp. III); it
regulates the organization and procedure of those courts, e.g., §§822–835, 851–854; it defines offenses, §§877–934,
and rights for the accused, e.g., §§827(b)–(c), 831, 844,
846, 855 (2000 ed.); and it provides mechanisms for appellate
review, §§859–876b (2000 ed. and Supp. III). As explained below,
the statute further recognizes that special military commissions
may be convened to try war crimes. See infra , at 5–6; §821
(2000 ed.). While these laws provide authority for certain forms of
military courts, they also 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 Jackson’s third
category, not the second or first.

															   One limit on the President’s authority is
contained in §836 of the UCMJ. That section provides:

															“(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.).

															In this provision the statute allows the President
to implement and build on the UCMJ’s framework by adopting
procedural regulations, subject to three requirements: (1)
Procedures for military 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 unless such uniformity
is impracticable, ante , at 57, 59, and n. 50.

															   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 57–59—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 59–62. Although we can assume the President’s
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 59–60.
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
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 60, 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.”
Webster’s 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.

															   In addition to §836, a second UCMJ provision,
10 U. S. C. §821, requires us to compare the commissions at
issue to courts-martial. This provision states:

															“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.”

															   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 President’s authority to convene military
commissions 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
28–29. 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 (1942),
derives from “rules and precepts of the law of nations”; it is the
body of international law governing armed conflict. Id. ,
at 28. 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 commission.

															   The Court is correct to concentrate on one
provision of the law of war that is applicable to our Nation’s
armed conflict with al Qaeda in Afghanistan and, as a result, to
the use of a military commission to try Hamdan. Ante , at
65–70; see also 415 F. 3d 33, 44 (CADC 2005) (Williams, J.,
concurring). That provision is Common Article 3 of the four Geneva
Conventions of 1949. It prohibits, as relevant here, “[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.” 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 (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.
As the Court explains, ante , at 63–65, 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, 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
commissions. Ante , at 66–67. Consistent with that 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.

															   In another military commission case, In re
Yamashita, 327 U.
S. 1 (1946), the Court likewise considered on the
merits—without any caveat about 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. 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 3’s requirement of a
“regularly constituted court affording all the judicial guarantees
which are recognized as indispensable by civilized peoples,” 6 U.
S. T., at 3318. The terms of this general standard are yet to
be elaborated and further defined, but Congress has required
compliance with it 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 3’s standard of a “regularly
constituted court affording all the judicial guarantees which are
recognized as indispensable by civilized 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 69–70; 1 Int’l Committee of the
Red Cross, Customary International 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 and procedures already in force in a country”).

															   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
United Nations 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
53–57; post , at 31, n. 15 (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,
and n. 6 (1952); Yamashita , supra, at 5; Quirin, 317 U. S., at 23—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
“regularly constituted” under United States law.

															   In addition, whether or not the possibility,
contemplated by the regulations here, of midtrial procedural
changes could by itself render a military commission impermissibly
irregular, ante , at 70, n. 65; see also Military
Commission Order No. 1, §11 (Aug. 31, 2005), App. to Brief for
Petitioner 46a–72a (hereinafter MCO), an acceptable degree of
independence from the Executive is necessary to render a commission
“regularly constituted” by the standards of our Nation’s system of
justice. And any suggestion of Executive power to interfere with an
ongoing judicial process raises concerns about the proceedings’
fairness. Again, however, courts-martial provide the relevant
benchmark. Subject to constitutional limitations, see Ex parte
Milligan, 4 Wall. 2 (1866), Congress has the power and
responsibility to determine the necessity for military courts, and
to provide the jurisdiction and procedures applicable to them. The
guidance Congress has provided with respect to courts-martial
indicates the level of independence and procedural rigor that
Congress has deemed necessary, at least as a general matter, in the
military context.

															   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 justice system only if some practical need explains
deviations from court-martial practice. In this regard the standard
of Common Article 3, applied here in conformity with §821,
parallels the practicability standard of §836(b). Section 836,
however, is limited by its terms to matters properly characterized
as procedural—that is, “[p]retrial, trial, and post-trial
procedures”—while Common Article 3 permits broader consideration of
matters of structure, organization, and mechanisms to promote the
tribunal’s insulation from command influence. Thus the combined
effect of the two statutes discussed here—§§836 and 821—is that
considerations of practicability must support departures from
court-martial practice. Relevant concerns, as noted earlier, relate
to logistical constraints, accommodation of witnesses, security of
the proceedings, and the like, not mere expedience or convenience.
This determination, of course, must be made with due regard for the
constitutional principle that congressional statutes can be
controlling, including the congressional direction that the law of
war has a bearing on the determination.

															   These principles provide the framework for an
analysis of the specific military commission at issue here.

															II

															   In assessing the validity of
Hamdan’s military commission the precise circumstances of this case
bear emphasis. The allegations against Hamdan are undoubtedly
serious. Captured in Afghanistan during our Nation’s 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 Osama bin Laden’s
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 Hamdan’s 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 62, 69–70, 72. The following analysis, which
expands on the Court’s discussion, explains my reasons for reaching
this conclusion.

															   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
Military Commission Order No. 1 an “ ‘Appointing
Authority’ ”—either the Secretary of Defense or the
Secretary’s “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 Defense). See MCO No. 1,
§§4(A)(2), 5(H), 6(A)(4), 7(A); Military Commission Instruction No.
3, §5(C) (July 15, 2005) (hereinafter MCI), available at www.
defenselink.mil/news/Aug2005/d20050811MC13.pdf; MCI No. 4, §5(C)
(Sept. 16, 2005), available at www.
defenselink.mil/news/Oct2005/d20051003MCI4.pdf MCI No. 6, §3(B)(3)
(April 15, 2004), available at www.
defenselink.mil/news/Apr2004/d20040420ins6.pdf (all Internet
materials as visited June 27, 2006, and available in Clerk of
Court’s case file).

															   Against the background of these significant
powers for the Appointing Authority, which in certain respects at
least conform to ordinary court-martial standards, the regulations
governing the commissions at issue make several noteworthy
departures. At a general court-martial—the only type authorized to
impose penalties of more than one year’s incarceration or to
adjudicate offenses against the law of war, 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
officer’s Armed Service. R. C. M. 502(c); 10 U.
S. C. §826(b). To protect their independence, military judges
at general courts-martial are “assigned and directly responsible to
the Judge Advocate General or the Judge Advocate General’s
designee.” R. C. M. 502(c). They must be detailed to the
court, in accordance with applicable regulations, “by a person
assigned as a military judge and directly responsible to the Judge
Advocate General or the Judge Advocate General’s designee.”
R. C. M. 503(b); see also 10 U. S. C. §826(c); see
generally Weiss v. United States, 510 U. S. 163 , 179–181
(1994) (discussing provisions that “insulat[e] military judges from
the effects of command influence” and thus “preserve judicial
impartiality”). Here, by contrast, the Appointing Authority selects
the presiding officer, MCO No. 1, §§4(A)(1), (A)(4); and that
officer need only be a judge advocate, that is, a military lawyer,
§4(A)(4).

															   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. 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 military’s
intermediate appeals court; it is established by the Judge Advocate
General for each Armed Service and composed of appellate military
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 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 prosecution’s 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 issues
in the middle of the trial—raise concerns that the commission’s
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 Government’s 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 8–9, and the review is not automatic if
the defendant’s sentence is under 10 years, §1005(e)(3)(B), ibid . 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 judge’s 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). 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 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
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 51, 61, the Military Commission Order 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 value to a reasonable person,” MCO No. 1,
§6(D)(1). Although it is true some military commissions applied 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 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 58. 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).

															   The rule here could permit admission of
multiple hearsay and other forms of evidence generally prohibited
on grounds of unreliability. Indeed, the commission regulations
specifically contemplate admission of unsworn written statements,
MCO No. 1, §6(D)(3); and they make no provision for exclusion of
coerced declarations save those “established to have been made as a
result of torture,” MCI No. 10, §3(A) (Mar. 24, 2006), available at
www. defenselink.mil/news/Mar2006/d20060327MCI10.pdf; cf. Military
Rule Evid. 304(c)(3) (generally barring use of statements obtained
“through the use of coercion, unlawful influence, or unlawful
inducement”); 10 U. S. C. §831(d) (same). Besides, even if
evidence is deemed nonprobative by the presiding officer at
Hamdan’s trial, the military-commission members still may view it.
In another departure from court-martial practice the military
commission members may object to the presiding officer’s 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 59–61; nor is any such
need self-evident. For all the Government’s regulations and
submissions reveal, it would be feasible for most, if not all, of
the conventional military evidence rules and procedures to be
followed.

															   In sum, as presently structured, Hamdan’s
military commission exceeds the bounds Congress has placed on the
President’s authority in §§836 and 821 of the UCMJ. Because
Congress has prescribed these limits, Congress can change them,
requiring a new analysis consistent with the Constitution and other
governing laws. At this time, however, we must apply the standards
Congress has provided. By those standards the military commission
is deficient.

															III

															   In light of the conclusion that
the military commission here is unauthorized under 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.

															   First, I would not decide whether
Common Article 3’s standard—a “regularly constituted court
affording all the judicial guarantees which are recognized as
indispensable by civilized peoples,” 6 U. S. T., at 3320
(¶(1)(d))—necessarily requires that the accused have the right to
be present at all stages of a criminal trial. As Justice Stevens
explains, Military Commission Order 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
50. 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 71–72, n. 67 (collecting
cases); see also In re Oliver, 333 U. S. 257 , 277
(1948) (finding “no support for sustaining petitioner’s conviction
of contempt of court upon testimony given in petitioner’s
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
47. 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 Military Commission Order No. 1). The evidentiary
proceedings at Hamdan’s 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 70, 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 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 36–49; post , at 12–28. In light of the conclusion that the
military commissions at issue are unauthorized 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
(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 31–36, 48–49; post , at 6–12.

															   With these observations I join the Court’s
opinion with the exception of Parts V and VI–D–iv. 548 U. S. ____ (2006) 548 U. S. ____ (2006) 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-184 SALIM AHMED HAMDAN, PETITIONER v. DONALD
H. RUMSFELD, SECRETARY OF DEFENSE, et al.

															on writ of certiorari to the united states court of
appeals for the district of columbia circuit

															[June 29, 2006]

															   Justice Breyer, with whom Justice
Kennedy, Justice Souter, and Justice Ginsburg join, concurring.

															   The dissenters say that today’s
decision would “sorely hamper the President’s ability to confront
and defeat a new and deadly enemy.” Post , at 29 (opinion
of Thomas, J.). They suggest that it undermines our Nation’s
ability to “preven[t] future attacks” of the grievous sort that we
have already suffered. Post , at 48. That claim leads me to
state briefly what I believe the majority sets forth both
explicitly and implicitly at greater length. The Court’s 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 (2004) (plurality opinion). Indeed, Congress has denied the
President the legisla- tive 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.

															   Where, as here, no emergency prevents
consultation with Congress, judicial insistence upon that
consultation does not weaken our Nation’s ability to deal with
danger. To the contrary, that insistence strengthens the Nation’s
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. SCALIA, J., DISSENTING HAMDAN V. RUMSFELD 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-184 SALIM AHMED HAMDAN, PETITIONER v. DONALD
H. RUMSFELD, SECRETARY OF DEFENSE, et al.

															on writ of certiorari to the united states court of
appeals for the district of columbia circuit

															[June 29, 2006]

															   Justice Scalia, with whom Justice
Thomas and Justice Alito join, dissenting.

															   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 statute’s 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.

															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 (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 petitioner’s 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 (1952), we
granted certiorari to consider whether the Tucker Act’s 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.
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, we held that it clearly ousted
jurisdiction over them. Summarizing centuries of practice, we said:
“This rule—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. See also Landgraf v. USI
Film Products , 511 U. S. 244 , 274 (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
today’s opinion for the Court would have it, a judge-made
“presumption against jurisdiction,” ante , at 11, that we
have invented to resolve an ambiguity in the statutes. It is simple
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 , 7 Wall. 506, 514 (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 as to
pending cases.” 343 U. S., at 116–117; see also id. , at
115 (“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 (1916),
Justice Holmes relied on the fact that the jurisdiction-ousting
provision “made no exception for pending litigation, but purported
to be universal,” id. , at 508. And in Insurance
Co. v. Ritchie , 5 Wall. 541 (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. As
in Bruner , Hallowell , and Ritchie , the
DTA’s 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
(1879).

															   The Court claims that I “rea[d] too much into”
the Bruner line of cases, ante , at 12, n. 7,
and that “the Bruner rule” has never been “an inflexible
trump,” ante , at 19. But the Court sorely misdescribes Bruner —as if it were a kind of early-day Lindh v. Murphy , 521
U. S. 320 (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. Though Bruner referred to an express savings
clause elsewhere in the statute, id., at 115, n. 7,
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 (quoting 5 Wall., at
544–545).

															   The Court also attempts to evade the Bruner line of cases by asserting that “the ‘presumption’
[of application to pending 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 11. I have already
explained that what the Court calls a “presumption” is simply the
acknowledgment of the unambiguous 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 statute’s effective date;
that is what an effective-date provision like §1005(h)(1) means .[ Footnote 1 ]
“ ‘[S]hall take effect upon enactment’ is presumed to 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 ,
511 U. S., at 288 (Scalia, J., concurring in judgments). The
Court’s “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 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 19, by requiring an express reservation
to save pending cases. See, e.g. , Bruner , supra , at 115; Kline v. Burke Constr.
Co. , 260 U. S.
226 , 234 (1922); Hallowell , 239 U. S., at 508; Gwin v. United States , 184 U. S. 669 , 675
(1902); Gurnee v. Patrick County , 137 U. S. 141 , 144
(1890); Sherman v. Grinnell , 123 U. S. 679 , 680
(1887); Railroad Co. v. Grant , supra, at
403, Assessors v. Osbornes , 9 Wall. 567, 575
(1870); Ex parte McCardle , 7 Wall., at 514; Ritchie , supra , at 544; Norris v. Crocker , 13 How. 429, 440 (1852); Yeaton v. United States , 5 Cranch 281 (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
(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 13. 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 the sort the Court
relies upon might clarify the meaning of an ambiguous 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
cases in the Bruner line would at least create a powerful
default “presumption against jurisdiction,” ante , at 11.
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 Court’s reliance on our
opinion in Lindh v. Murphy , 521
U. S. 320 (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. The latter
provision explicitly rendered the new chapter 154 applicable to
cases pending at the time of AEDPA’s enactment; the former made no
specific reference to pending cases. Id. , at 327. In Lindh , we drew a negative inference from chapter 154’s
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. 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 amendments to pending
cases, but did not provide it. Id. , at 329. 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 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 Co. v. United States ex rel. Schumer , 520 U. S. 939 , 951 (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
(2004) (opinion for the Court by Stevens, J.); id. , at 722
(Kennedy, J., dissenting). The Court gives our retroactivity
jurisprudence a dazzling clarity in asserting that “subsections
(e)(2) and (e)(3) ‘confer’ jurisdiction in a manner that cannot
conceivably give rise to retroactivity questions under our
precedents.”[ Footnote 2 ] Ante , at 17–18. This statement rises to the level of
sarcasm when one considers its author’s 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 expectations offer sound
guidance.” Landgraf , 511 U. S., at 270 (opinion for the
Court by Stevens, J.).

															The only “familiar consideration,” “reasonable
reliance,” and “settled expectation” I am aware of pertaining to
the present case is the rule of Bruner —applicable to
§1005(e)(1), but not to §1005(e)(2) and (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 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 16–18.

															   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’ jurisdiction in a manner that cannot
conceivably give rise to retroactivity questions,” ante ,
at 17–18, 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). Lindh ’s 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, 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.

															   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
14 (quoting Lindh , 521 U. S., at 329). 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
raised by petitioners here. See infra , at 16–18. By
drawing a negative inference À 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 Lindh ’s
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 Court’s
reliance on the legislative history of the DTA to buttress its
implausible reading of §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 Court’s
interpretation, citing excerpts from the floor debate that support
its view, ante , 15–16, n. 10. The Court immediately
goes on to discount numerous floor statements by the DTA’s 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 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 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 DTA’s enactment. Some
of the statements of Senator Graham, a sponsor of the bill, only
make sense on the assumption that pending cases are
covered.[ Footnote 3 ] And at
least one opponent of the DTA unmistakably expressed his
understanding that it would terminate our jurisdiction in this very
case.[ Footnote 4 ] (Of course in
its discussion of legislative history the Court wholly ignores the
President’s signing statement, which explicitly set forth his understanding that the DTA ousted jurisdiction over
pending cases.[ Footnote 5 ])

															   But selectivity is not the
greatest vice in the Court’s use of floor statements to resolve
today’s case. These statements were made when Members of Congress
were fully aware that our continuing jurisdiction over this
very case was at issue. The question was divisive, and floor
statements made on both sides were undoubtedly opportunistic and
crafted solely for use in the briefs in this very
litigation. See, e.g. , 151 Cong. Rec. S14257–S14258 (Dec.
21, 2005) (statement of Sen. Levin) (arguing against a reading that
would “stri[p] the Federal courts of jurisdiction to consider
pending cases, including the Hamdan case now pending in the
Supreme Court ,” and urging that Lindh requires the
same negative inference that the Court indulges today (emphasis
added)). The Court’s reliance on such statements cannot avoid the
appearance of similar opportunism. In a virtually identical
context, the author of today’s opinion has written for the Court
that “[t]he legislative history discloses some frankly partisan
statements about the meaning of the final effective date language,
but those statements cannot plausibly be read as reflecting any
general agreement.” Landgraf , 511 U. S., at 262 (opinion
for the Court by Stevens, J.). Likewise, the handful of floor
statements that the Court treats as authoritative do not “reflec[t]
any general agreement.” They reflect the now-common tactic—which
the Court once again rewards—of pursuing through floor-speech ipse dixit what could not be achieved through the
constitutionally prescribed method of putting language into a bill
that a majority of both Houses vote for and the President
signs.

															   With regard to the floor statements, at least
the Court shows some semblance of seemly shame, tucking away its
reference to them in a half-hearted footnote. Not so for its
reliance on the DTA’s drafting history, which is displayed
prominently, see ante , at 14–15. I have explained
elsewhere that such drafting history is no more legitimate or
reliable an indicator of the objective meaning of a statute than
any other form of legislative history. This case presents a
textbook example of its unreliability. The Court, ante , at
14, trumpets the fact that a bill considered in the Senate included
redundant language, not included in the DTA as passed, reconfirming
that the abolition of habeas jurisdiction “shall apply to any
application or other action that is pending on or after the date of
the enactment of this Act.” 151 Cong. Rec. S12655 (Nov. 10, 2005).
But this earlier version of the bill also differed from the DTA in
other material respects. Most notably, it provided for postdecision
review 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 Court’s greatest Justices.[ Footnote 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 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.

															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 (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
Court’s interpretation transforms a provision abolishing
jurisdiction over all Guantanamo-related habeas 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
petitioner’s 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 (1950):

															“We are cited to no instance where a court, in this
or any other country 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 extends such a right, nor
does anything in our statutes.”

															Notwithstanding the ill-considered dicta in the
Court’s opinion in Rasul , 542 U. S., at 480–481, it is
clear that Guantanamo Bay, Cuba, is outside the sovereign
“territorial jurisdiction” of the United States. See id. ,
at 500–505 (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 person’s detention does not constitute a suspension
of the writ of habeas corpus.” Swain v. Pressley , 430 U. S. 372 , 381 (1977); see also INS v. St. Cyr , 533 U. S. 289 , 314, n. 38 (2006)
(“Congress could, without raising any constitutional questions,
provide an 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 petitioner’s 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), (e)(3)(A), ibid . This Military
Commission Order (Order No. 1) is the Department of Defense’s
fundamental implementing order for the President’s 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 posttrial
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 military commissions,
including the fact of their existence and every respect in which
they differ from courts-martial. Petitioner’s 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. Circuit’s decisions. Motion to
Dismiss 16, n. 8. Thus, the DTA merely defers our
jurisdiction to consider petitioner’s claims; it does not eliminate
that jurisdiction. It constitutes neither an “inadequate” nor an
“ineffective” substitute for petitioner’s pending habeas
application.[ Footnote 7 ]

															   Though it does not squarely address the issue,
the Court hints ominously that “the Government’s preferred reading”
would “rais[e] grave questions about Congress’ authority to impinge
upon this Court’s appellate jurisdiction, particularly in habeas
cases.” Ante , at 10–11 (citing Ex parte Yerger , 8
Wall. 85 (1869); Felker v. Turpin , 518 U. S. 651 (1996); Durousseau v. United States , 6 Cranch 307 (1810); United States v. Klein , 13 Wall. 128 (1872); and Ex parte McCardle , 7 Wall. 506). 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).

															III

															   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 (1975); Weinberger v. Romero-Barcelo , 456 U. S. 305 , 311
(1982). In light of Congress’s provision of an alternate avenue for
petitioner’s claims in §1005(e)(3), those equitable principles
counsel that we abstain from exercising jurisdiction in this
case.

															   In requesting abstention, the
Government relies principally on Councilman , in which we
abstained from considering a serviceman’s 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. Admittedly, Councilman does not squarely control petitioner’s case,
but it provides the closest analogue in our jurisprudence. As the
Court describes, ante , at 21, 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 a third
consideration not emphasized in 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
regular interference from civilian courts,” and concludes that
“Hamdan is not a member of our Nation’s Armed Forces, so concerns
about military discipline do not apply.” Ante , at 22. 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, 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. The charge against
the petitioner here is joining and actively abetting the murderous
conspiracy that slaughtered thousands of innocent American
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.

															   The reason for the Court’s “blinkered study”
of this question, ante , at 19, 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 charge’s shortcomings …
are indicative of a broader inability on the Executive’s part here
to satisfy the most basic precondition … for establishment of
military commissions: military necessity.” Ante , at 48.
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 and
other applicable laws by military tribunals.” Military Order of
Nov. 13, 2001, 3 CFR §918(e) (2002). 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, military necessities relating to the
disabling, deterrence, and punishment 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 22. To be sure, Councilman emphasized that “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, who would gain
over time thorough familiarity with military problems.” 420 U. S.,
at 758 (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 panel’s decision may be had only
to the Secretary of Defense himself, §6(H)(5), and then, finally,
to the President, §6(H)(6).” Ante , at 23.

															   Even if we were to accept the Court’s
extraordinary assumption that the President “lack[s] the structural
insulation from military influence that characterizes the Court of
Appeals for the Armed Forces,” ante , at 23,[ Footnote 8 ] the Court’s 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 from Executive control than
that in Councilman .[ Footnote 9 ] At the time we decided Councilman ,
Congress had not “conferred on any Art[icle] III court
jurisdiction directly to review court-martial determinations.” 420
U. S., at 746. 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.).

															   Moreover, a third consideration counsels
strongly in favor of abstention in this case. Councilman reasoned that the “considerations of comity, the necessity of
respect for coordinate judicial systems” that motivated our
decision in Younger v. Harris , 401 U. S. 37 (1971), were inapplicable
to courts-martial, because “the particular demands of federalism
are not implicated.” 420 U. S., at 756, 757. Though military
commissions likewise do not implicate “the particular demands of
federalism,” considerations of interbranch comity 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 of Nov. 13, 3 CFR §918(e).
Such an order brings the Judicial Branch into direct conflict with
the Executive in an area where the Executive’s competence is
maximal and ours is virtually nonexistent. 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 petitioner’s claim, merely to “reduc[e]
friction between the state and federal court systems.” O’Sullivan v. Boerckel , 526 U. S. 838 , 844, 845
(1999). The “friction” created today between this Court and the
Executive Branch is many times more serious.

															   In the face of such concerns, the Court relies
heavily on Ex parte Quirin, 317 U. S. 1 (1942): “Far
from abstaining pending the conclusion of military proceedings,
which were ongoing, [in Quirin ] we convened a special Term
to hear the case and expedited our review.” Ante , at 24.
It is likely that the Government in Quirin , unlike here,
preferred a hasty resolution of the case in this Court, so that it
could swiftly execute the sentences imposed, see Hamdi v. Rumsfeld , 542 U. S. 507 , 569 (2004) (Scalia, J.,
dissenting). But the Court’s reliance on Quirin suffers
from a more fundamental defect: Once again, it ignores the DTA,
which creates an avenue for the consideration of petitioner’s
claims that did not exist at the time of Quirin .
Collateral application for habeas review was the only vehicle available. And there was no compelling reason to postpone
consideration of the Quirin application until the
termination of military proceedings, because the only cognizable
claims presented were general challenges to the authority of the
commissions that would not be affected by the specific proceedings.
See supra , at 8–9, n. 2. 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
precedent.

															   I would abstain from exercising our equity
jurisdiction, as the Government requests.

															*  *  *

															      For the
foregoing reasons, I dissent. Footnote 1 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 enactment,’ DTA §1005(h)(1), 119 Stat. 2743, is not
dispositive,” says the Court, ante , at 14, n. 9. The
Court’s authority for this conclusion is its quote from INS v. St. Cyr , 533 U. S. 289 , 317 (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 14, n. 9 (emphasis added, 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 Court’s
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. Footnote 2 A comparison with Lindh v. Murphy, 521
U. S. 320 (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, see 521 U. S., at 326),
in that they “g[o] beyond ‘mere’ procedure,” id. , at 327.
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 Com- batant Status Review
Tribunals, at 3 § h (July 7, 2004), avail- able at
http://www.defenselink.mil/news/Jul2004/d20040707review.pdf (all
Internet materials as visited June 27, 2006, and available in Clerk
of Court’s 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 commission’s “lawful authority to hear, decide and
condemn,” In re Yamashita , 327 U. S. 1 , 8 (1946)
(emphasis added). See also Johnson v. Eisentrager , 339 U. S. 763 , 786–787 (1950). Thus,
contrary to the Court’s suggestion, ante , at 17,
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. Shumer, 520 U. S. 939 , 951 (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 (1994). Footnote 3 “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”). Footnote 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). Footnote 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.” President’s Statement on Signing of H. R. 2863, the
“Department of Defense, Emergency Supple- mental 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/20051230
8.html. Footnote 6 The Court asserts that “it cannot be said
that the changes to subsection (h)(2) were inconsequential,” ante , at 15, n. 10, but the Court’s sole evidence is
the self-serving floor statements that it selectively cites. Footnote 7 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 (2004). 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 (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 (1975); see
also Younger v. Harris , 401 U. S. 37 , 46 (1971). Footnote 8 The very purpose of Article II’s 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. Footnote 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 23, n. 19, 52–53; §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 23, and its discretionary nature
presents no obstacle to the courts’ future review 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 16–18. 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 court’s equitable
discretion, see Withrow v. Williams , 507 U. S. 680 , 715–718
(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. ALITO, J., DISSENTING HAMDAN V. RUMSFELD 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-184 SALIM AHMED HAMDAN, PETITIONER v. DONALD
H. RUMSFELD, SECRETARY OF DEFENSE, et al.

															on writ of certiorari to the united states court of
appeals for the district of columbia circuit

															[June 29, 2006]

															   Justice Alito, with whom Justices
Scalia and Thomas join in Parts I–III, dissenting.

															   For the reasons set out in
Justice Scalia’s dissent, which I join, I would hold that we lack
jurisdiction. On the merits, I join Justice Thomas’ dissent with
the 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 holding of the Court.

															I

															   The holding of the Court, as I
understand it, rests on the following reasoning. A military
commission is lawful only if it is authorized by 10 U. S. C.
§821; this provision permits the use of a commission to try
“offenders or offenses” that “by statute or by the law of war may
be tried by” such a commission; because no statute provides that an
offender such as petitioner or an offense such as the one with
which he is charged may be tried by a military commission, he may
be tried by military commission only if the trial is authorized by
“the law of war”; the Geneva Conventions are part of the law of
war; and Common Article 3 of the Conventions prohibits petitioner’s
trial because the commission before which he would be tried is not
“a regularly constituted court,” Third Geneva Convention, Art. 3,
¶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. I disagree with this holding
because petitioner’s commission is “a regularly constituted
court.”

															   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).

															   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 as indispensable by
civilized peoples.” Id . , at 3320.

															   I see no need here to comment extensively on
the meaning of the first and third 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 country’s domestic law. I agree with the Court,
see ante , at 69, n. 64, that, as used in Common Article 3,
the term “regularly” is synonymous with “properly.” The term
“constitute” means “appoint,” “set up,” or “establish,” Webster’s
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. Rumsfeld, 542 U. S. 507 , 538
(2004) (plurality opinion of O’Connor, J.); Nguyen v. United States, 539 U. S. 69 , 83 (2003); Ryder v. United States, 515 U. S. 177 , 187
(1995); Williams v. Bruffy, 96 U. S. 176 , 185
(1878).

															   In order to determine whether a court has been
properly appointed, set up, or established, it is necessary to
refer to a body of law that governs such matters. I interpret
Common Article 3 as looking to 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 before which petitioner would be tried
is not “a regularly constituted court” (a) because “no evident
practical need explains” why its “structure and composition …
deviate from conventional court-martial standards,” ante ,
at 11 (Kennedy, J., concurring in part); see also ante , at
69–70 (Opinion of the Court); and (b) 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 52–62 (Opinion of the
Court); ante , at 16–18 (Kennedy, J., concurring in part).
I do not believe that either of these grounds is sound.

															A

															   I see no basis for the Court’s
holding that a military commission cannot be regarded as “a
regularly constituted court” unless it is similar in structure and
composition to a 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 country’s 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 8–9. Article 84 provides that “[a] prisoner of war shall be
tried only by a military court, unless the existing laws of the
Detaining Power expressly permit the civil courts to try a member
of the armed forces of the 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 Convention Relative to the Treatment of
Civilian Persons in Time of War—a provision to which the Court
looks for guidance in interpreting Common Article 3, see ante at 69—expressly provides that civilians 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, 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 Court’s
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.

															   Contrary to the suggestion of the Court, see ante , at 69, the commentary on Article 66 of Fourth Geneva
Convention does not undermine this conclusion. As noted, Article 66
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 Int’l Comm. of Red Cross, Commentary: Geneva
Convention Relative to the Protection of Civilian Persons in Time
of War 340 (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 69 (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 petitioner’s claim
that his commission is not such a tribunal. As for the
commentary’s mention of “special tribunals,” it is doubtful whether
we should take this gloss on Article 66—which forbids an occupying power from trying civilians in courts
set up specially for that purpose—to tell us much about the very
different context addressed by Common Article 3.

															   But even if Common Article 3 recognizes this
prohibition on “special tribunals,” that prohibition does not cover
petitioner’s 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.” Webster’s 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
petitioner’s tribunal, like the hundreds of others respondents
propose to conduct, is very much regular and not at all
special.

															B

															   I also disagree with the Court’s
conclusion that petitioner’s military commission is “illegal,” ante , at 62, 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 35 (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 court-martial procedures, it does not follow 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 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 the commissions. I see no justification
for striking down the entire commission structure simply because it
is possible that petitioner’s trial might involve the use of some
procedure that is improper.

															III

															   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.

															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 (1942), and the Court acknowledges that Quirin recognized
that the statutory predecessor of 10 U. S. C. §821 “preserved”
the President’s power “to convene military commissions,” ante , at 29. Although Justice Kennedy concludes that “an
acceptable degree of independence from the Executive is necessary
to render a commission ‘regularly constituted’ by the standards of
our Nation’s system of justice,” ante at 9–10, 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.[ Footnote 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 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 mid-trial changes), see ante , at 70, n.
65 (Opinion of the Court); ante , at 9–10 (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 system’s usual rules
of evidence), see ante , at 51, 60 (Opinion of the Court); ante , at 16–18 (Kennedy, J., concurring in part).[ Footnote 2 ] Neither of these two 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 rules, such as the
general prohibition against the admission of hearsay. See, e.g., Blumenthal, Shedding Some Light on Calls for Hearsay
Reform: Civil Law Hearsay Rules in Historical and Modern
Perspective, 13 Pace Int’l 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.

															   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 those cases.

															B

															   The commentary on Common Article
3 supports this interpretation. The commentary on Common Article 3,
¶1(d), in its entirety states:

															“[A]lthough [sentences and executions without a
proper trial] were common practice until quite recently, they are
nevertheless shocking to the civilized mind… . Sentences and
executions without previous trial are too open to error. ‘Summary
justice’ may be effective on account of the fear it arouses … , but
it adds too many further innocent victims to all the other innocent
victims of the conflict. All civilized nations surround the
administration 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 a person presumed to be guilty from being arrested and so
placed in a 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).

															   It seems clear that the
commissions at issue here meet this standard. Whatever else may be
said about the system that was created by Military Commission Order
No. 1 and augmented by the Detainee Treatment Act, §1005(e)(1), 119
Stat. 2742, this system—which features formal trial procedures,
multiple levels of administrative review, and the opportunity for
review by a United States Court of Appeals and by this Court—does
not dispense “summary justice.”

															*  *  *

															   For these reasons, I respectfully
dissent. Footnote 1 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 10. Footnote 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 70–72. 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. THOMAS, J., DISSENTING HAMDAN V. RUMSFELD 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-184 SALIM AHMED HAMDAN, PETITIONER v. DONALD
H. RUMSFELD, SECRETARY OF DEFENSE, et al.

															on writ of certiorari to the united states court of
appeals for the district of columbia circuit

															[June 29, 2006]

															   Justice Thomas, with whom Justice
Scalia joins, and with whom Justice Alito joins in all but Parts I,
II–C–1, and III–B–2, dissenting.

															   For the reasons set forth in
Justice Scalia’s dissent, it is clear that this Court lacks
jurisdiction to entertain petitioner’s claims, see ante ,
at 1–11. The Court having concluded otherwise, it is appropriate to
respond to the Court’s resolution of the merits of petitioner’s
claims because its opinion openly flouts our well-established duty
to respect the Executive’s judgment in matters of military
operations and foreign affairs. The Court’s evident belief that it is qualified to pass on the “[m]ilitary necessity,” ante , at 48, of the Commander in Chief’s 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 petitioner’s claims
arises in the context of the President’s 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 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 (2004), the structural
advantages attendant to the Executive Branch—namely, the
decisiveness, “ ‘activity, secrecy, and dispatch’ ” that
flow from the Executive’s “ ‘unity,’ ” id. , at
581 (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
Nation’s foreign relations.” 542 U. S., at 580. 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 Nation’s security in the
manner he deems fit. See, e.g. , Prize Cases, 2
Black 635, 668 (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, 9 How. 603, 615
(1850) (acknowledging that the President has the authority to
“employ [the Nation’s 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
(1981) (quoting Haig v. Agee, 453 U. S. 280 , 291
(1981)). Rather, in these domains, the fact that Congress has
provided the President with broad authorities does not imply—and
the Judicial Branch should not infer—that Congress intended to
deprive him of particular powers not specifically enumerated. See Dames & Moore , 453 U. S., at 678 (“[T]he enactment of
legislation closely related to the question of the President’s
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 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343
U. S. 579 , 637 (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 (1942).

															   Under this framework, the President’s 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
necessary and appropriate force against those nations,
organizations, or persons he 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. 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,’ ” Hamdi , 542 U. S., at 518 (quoting Quirin, supra ,
at 28, 30; emphasis added), and are therefore “an exercise of the
‘necessary and appropriate force’ Congress has authorized the
President to use.” Hamdi, 542 U. S., at 518; id .,
at 587 (Thomas, J., dissenting). Hamdi ’s observation that
military commissions are included within the AUMF’s authorization
is supported by this Court’s 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 (1946); see also Quirin , supra , at 28–29; Madsen v. Kinsella, 343 U. S. 341 , 354, n. 20 (1952)
(“ ‘[T]he military commission … is an institution of the
greatest importance in the 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 President’s use of military commissions in certain
circumstances, ante, at 28, it suggests that the AUMF has
no bearing on the scope of the President’s power to utilize
military commissions in the present conflict, ante, at
29–30. 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. 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
conflicts—quite the contrary, the language of Article 21
presupposes the existence of military commissions under an
independent basis of authorization.[ Footnote 1 ] Indeed, consistent with Hamdi ’s
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 (2d ed.
1920) (hereinafter Winthrop). 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.[ Footnote 2 ]

															   I note the Court’s error respecting the AUMF
not because it is necessary to my resolution of this case—Hamdan’s
military commission can plainly be sustained solely under Article
21—but to emphasize the complete congressional sanction of the
President’s exercise of his commander-in-chief authority to conduct
the present war. In such circumstances, as previously noted, our
duty to defer to the Executive’s military and foreign policy
judgment is at its zenith; it does not countenance 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 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 (Thomas, J., dissenting) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S.
S. Corp., 333 U. S. 103 , 111 (1948)).

															It is within this framework that the lawfulness of
Hamdan’s commission should be examined.

															II

															   The plurality accurately
describes some aspects of the history of military commissions and
the prerequisites for their use. Thus, I do not dispute that
military commissions have historically been “used in three
[different] situations,” ante , at 31–32, 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 32 (quoting Quirin, supra , at 28–29).
Similarly, I agree with the plurality that Winthrop’s treatise sets
forth the four relevant considerations for determining the scope of
a military commission’s 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 plurality’s 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 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 33. Here, as evidenced by Hamdan’s 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 Laden’s August 1996 “ Declaration
of Jihad Against the Americans ,” ibid . Under the
Executive’s 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 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, 2 Black, at 670 (concluding that the
President’s 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 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 48 (emphasis in
original). The plurality’s willingness to second-guess the
Executive’s 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 even
if such second-guessing were appropriate, the plurality’s attempt
to do so is unpersuasive.

															   As an initial matter, the plurality relies
upon the date of the AUMF’s enactment to determine the beginning
point for the “period of the war,” Winthrop 836, thereby suggesting
that petitioner’s commission does not have jurisdiction to try him
for offenses committed prior to the AUMF’s enactment. Ante , at 34–36, 48. But this suggestion betrays the
plurality’s 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 (recognizing
that war may be initiated by “invasion of a foreign nation,” and
that such initiation, and the President’s response, usually precedes congressional action). Thus, Congress’ enactment
of the AUMF did not mark the beginning of this Nation’s conflict
with al Qaeda, but instead authorized the President to use force in
the midst of an ongoing conflict. Moreover, while the President’s
“war powers” may not have been activated until the AUMF was passed, ante , 35, n. 31, the date of such activation has never
been used to determine the scope of a military commission’s
jurisdiction.[ Footnote 3 ]
Instead, the traditional rule is that “[o]ffenses committed before
a formal declaration of war or before the declaration of martial
law may be tried by military commission.” Green, The Military
Commission, 42 Am. J. Int’l 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));[ Footnote 4 ] cf. Yamashita , 327 U. S., at 13 (“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.[ Footnote
5 ]

															   Moreover, the President’s 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 , 2 Black, at 668 (recognizing that a state of war exists
even 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 Laden’s
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 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
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 Ladin’s
network” as early as 1998. Dept. of State Fact Sheet: Usama bin
Ladin (Aug. 21, 1998). Based on the foregoing, the President’s
judgment—that the present conflict substantially predates the AUMF,
extending at least as far back as al Qaeda’s 1996 declaration of
war on our Nation, and that the theater of war extends at least as
far as the localities of al Qaeda’s principal bases of
operations—is beyond judicial reproach. And the plurality’s
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 (Thomas, J.,
dissenting) (quoting Chicago & Southern Air Lines , 333
U. S., at 111).

															B

															   The third consideration
identified by Winthrop’s treatise for the exercise of military
commission jurisdiction pertains to the persons triable before such
a commission, see ante , at 33; Winthrop 838. Law-of-war
military commissions have jurisdiction over “ ‘individuals of
the enemy’s army who have been guilty of illegitimate warfare or
other offences in violation of the laws of war,’ ” ante , at 33-34 (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 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.

															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 34 (quoting Winthrop 839). In
contrast to the preceding considerations, this Court’s 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.
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. 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.” Q uirin , supra , at 30; Yamashita , supra , at
8.

															   The common law of war as it
pertains 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 common law of war is marked by two important
features. First, as with the 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 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. 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 law of
war.’ ” Madsen, supra , at 347, n. 9 (quoting
Winthrop 831; emphasis added).

															   In one key respect, the plurality departs from
the proper framework for evaluating the adequacy of the charge
against Hamdan 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 38.
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 (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 (noting that the
allegations were “adequat[e]” and “need not be stated with …
precision”), with id ., at 35 (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, Madison’s praise of the separation of powers in The
Federalist No. 47, quoted ante , at 38-39, if it has any
relevance at all, merely highlights the illegitimacy of today’s
judicial intrusion onto core executive prerogatives in the waging
of war, where executive competence is at its zenith and judicial
competence at its nadir.

															   The plurality’s 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 appropriate.[ Footnote 6 ] Though the charge against
Hamdan easily satisfies even the plurality’s manufactured rule, see supra , at 16–28, the plurality’s inflexible approach has
dangerous implications for the Executive’s 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.

															1

															   Under either the correct, flexible approach to
evaluating the adequacy of Hamdan’s charge, or under the
plurality’s new, 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. 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 .[ Footnote 7 ]

															   The common law of war establishes
that Hamdan’s willful and knowing membership in al Qaeda is a war
crime chargeable before a military commission. Hamdan, a confirmed
enemy combatant and member or affiliate of al Qaeda, has been
charged with willfully and knowingly joining a group (al Qaeda)
whose purpose is “to support violent attacks 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 Tazania 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 the jurisdiction of Hamdan’s military commission.

															   For well over a century it has
been established that “to unite with banditti, jayhawkers,
guerillas, or any other unauthorized marauders is a high offence
against the laws of war; the offence is complete when the band
is organized or 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 by the
laws of war .” 11 Op. Atty. Gen., at 312 (emphasis
added).[ Footnote 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
International Committee of Red Cross, Commentary: Geneva Convention
Relative to the Protection of Civilian Persons in Time of War 3 (J.
Pictet ed. 1958). “Numerous instances of trials, 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.[ Footnote 9 ] Accordingly,
on this basis alone, “the allegations of [Hamdan’s] charge, tested
by any reasonable standard, adequately allege a violation of the
law of war.” Yamashita , 327 U. S., at 17.

															   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 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 Nuernberg Military Tribunals,
p. XII (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, The 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 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 (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 Qaeda’s top
leadership by supplying weapons, transportation, and other
services. App. to Pet. for Cert. 65a–67a. These allegations 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 maruad and to lay waste 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”).[ Footnote 10 ]
Undoubtedly, 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, 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 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 United Nations War
Crimes Commission, Law Reports of Trials of War Criminals 114–115
(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,” 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, 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).

															   To support its contrary conclusion, ante , at 35–36, the plurality attempts to evade the import
of Quirin (and the other World War II authorities) by
resting upon this Court’s failure to address the sufficiency of the
conspiracy charge in the Quirin case, ante , at
41–43. But the common law of war cannot be ascertained from this
Court’s failure to pass upon an issue, or indeed to even mention
the issue in its opinion;[ Footnote 11 ] rather, it is ascertained by the practice
and usage of war. Winthrop 839; supra , at 11–12.

															   The Civil War experience provides further
support for the President’s 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 (1899) (hereinafter
G. C. M. O. No. 356).[ Footnote 12 ]

															   In addition to the foregoing high-profile
example, Winthrop’s 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 “stand-alone offense[s] against the law of war.” Ante , at 44–45 (citing, as an example, murder in violation
of the laws of war). But the fact that, for example, conspiracy to
commit murder can at the same time violate ordinary criminal laws
and the law of war, so that it is “a combination of the two species
of offenses,” Howland 1071, does not establish that a military
commission would not have jurisdiction to try that crime solely on
the basis that it was a violation of the law of war. Rather, if
anything, and consistent with the principle that the common law of
war is flexible and affords some level of deference to the
judgments of military commanders, it establishes that military
commissions would have the discretion to try the offense as (1) one
against the law of war, or (2) one against the ordinary criminal
laws, or (3) both.

															   In any event, the plurality’s effort to avoid
the import of Winthrop’s footnote through the smokescreen of its
“compound offense” theory, ante , at 44–45, cannot be
reconciled with the particular charges that sustained military
commission jurisdiction in the cases that Winthrop cites. For
example, in the military commission trial of Henry Wirtz, Charge I
provided that he had been

															“[m]aliciously, willfully, and traitorously . . . combining, confederating, and conspiring , together [with
various other named and unnamed co-conspirators], to injure the
health and destroy the lives of soldiers in the military service of
the United States, then held and being prisoners of war within the
lines of the so-called Confederate States, and in the military
prisons thereof, to the end that the armies of the United States
might be weakened and impaired, in violation of the laws and
customs of war .” G. C. M. O. No. 607 (1865),
reprinted in H. R. Doc. No. 314, at 785 (emphasis added).

															Likewise, in the military commission trial of
Lenger Grenfel, Charge I accused Grenfel of “ [c]onspiring, in
violation of the laws of war , to release rebel prisoners of
war confined by authority of the United States at Camp Douglas,
near Chicago, Ill.” G. C. M. O. No. 452 (1865),
reprinted in H. R. Doc. No. 314, at 724 (emphasis
added)[ Footnote 13 ]; see
also G. C. M. O. No. 41, at 20 (1864) (indictment in
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 President’s
conclusion that the common law of war permits military commission
trials for conspiracy to violate the law of war. And they
specifically contradict the plurality’s 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 39-40.[ Footnote 14 ]

															   The plurality further contends, in reliance
upon Winthrop, that conspiracy 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 plurality’s
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 conspiracy charge, but of the requirements for all charges. Intentions do not suffice. 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 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 plurality’s 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 plurality’s 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 of the laws of war. See supra , at 20–21;
Winthrop 839–840.

															3

															   Ultimately, the plurality’s
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 plurality’s raw judgment of the
“inability on the Executive’s part here to satisfy the most basic
precondition … for establishment of military commissions: military
necessity.” Ante , at 48. 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 plurality’s suggestion that Hamdan’s
commission is illegitimate because it is not dispensing swift
justice on the battlefield is unsupportable. Ante , at 43.
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 (military commission trial
after the cessation of hostilities in the Philippines); Quirin , 317 U. S. 1 (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.

															   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 48,
in the midst of the attack itself , in order to bring them
to justice. Not only is this conclusion fundamentally inconsistent
with the cardinal principal of the law of war, namely protecting
non-combatants, but it would sorely hamper the President’s ability
to confront and defeat a new and deadly enemy.

															   After seeing the plurality overturn
longstanding precedents in order to seize jurisdiction over this
case, ante , at 2–4 (Scalia, J., dissenting), and after
seeing them disregard the clear prudential counsel that they
abstain in these circumstances from using equitable powers, ante, at 19–24, it is no surprise to see them go on to
overrule one after another of the President’s judgments pertaining
to the conduct of an ongoing war. Those Justices who today
disregard the commander-in-chief’s 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 agency’s wildly implausible conclusion that a storm drain is a
tributary of the waters of the United States. See Rapanos v. United States , 547 U. S. ___(2006). It goes without
saying that there is much more at stake here than storm drains. The
plurality’s 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 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 49. 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. Indeed, this Court has concluded that “[i]n the absence of
attempts by Congress to limit the President’s 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 the
jurisdiction and procedure of military commissions.” Id. ,
at 348. This conclusion is consistent with this Court’s
understanding that military commissions are “our common-law war
courts.” Id ., at 346–347.[ Footnote 15 ] As such, “[s]hould the conduct 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.

															   The Court nevertheless concludes
that at least one provision of the UCMJ amounts to an attempt by
Congress to limit the President’s power. 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 Madsen ’s conclusion pertaining to the common-law nature of
military commissions and the President’s 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 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
President’s authority, Article 36 recognizes the President’s
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
58, n. 49, and there is no suggestion that the procedures to
be employed by Hamdan’s 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 57, requires the President to employ the same
rules and procedures in military commissions as are employed by
courts-martial “insofar as practicable.” Ante , at
59. The Court further concludes that Hamdan’s commission is
unlawful because the President has not explained why it is not
practicable to apply the same rules and procedures to Hamdan’s
commission as would be applied in a trial by court martial. Ante , at 60.

															   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, provost courts, or other military
tribunals of concurrent jurisdiction in respect of offenders or
offences 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 President’s
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 by the
common law of war.” 327 U. S., at 20 (emphasis added)[ Footnote 16 ]; see also Quirin ,
317 U. S., at 28; Madsen , 343 U. S., at 355. In reaching
this conclusion, this Court treated as authoritative the
congressional testimony of Judge Advocate 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. And
this Court recognized that Article 15’s preservation of military
commissions as common-law war courts preserved the President’s
commander-in-chief authority to both “establish” military
commissions and to “prescribe [their] procedure[s].” Madsen , 343 U. S., at 348; id ., at 348–349
(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”).

															   Given these precedents, the Court’s conclusion
that Article 36(b) requires the 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 Court’s interpretation of that
provision as preserving the common-law status of military
commissions, inclusive of the President’s unfettered authority to
prescribe their procedures. Lorillard v. Pons, 434 U. S. 575 ,
580 (1978). The Court’s 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. See Branch v. Smith, 538 U. S. 254 ,
273 (2003). (“We have repeatedly stated … that absent a clearly
expressed congressional intention, repeals by implication are not
favored” (citation and internal quotation marks omitted)).
Moreover, the Court’s conclusion is flatly contrary to its duty not
to set aside Hamdan’s commission “without the clear conviction that [it is] in conflict with the … laws of Congress
constitutionally enacted.” Quirin, supra , at 25 (emphasis
added).

															   Nothing in the text of Article 36(b) supports
the Court’s 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 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. §866 (providing
for three different types of courts-martial— general, special, and
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 Court’s prior interpretations 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.[ Footnote 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 Court’s 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 courts-martial.” Ante , at 60. This is simply not the case. On the same day
that the President issued Military Commission Order No. 1, the
Secretary of Defense explained that “the president decided to
establish military commissions because he wanted the option of a
process that is different from those processes which we already
have, namely the federal court system . . . and the military court
system,” Dept. of Defense News Briefing on Military Commissions
(Mar. 21, 2002) (remarks of Donald Rumsfeld), available at
http://www.dod.gov/transcrips/ 2002/t03212002_t0321sd.html (as
visited June 26, 2006, and available in Clerk of Court’s case file)
(hereinafter News Briefing), and that “[t]he commissions are
intended to be different . . . because the [P]resident recognized
that there had to be differences to deal with the unusual situation
we face and that a different approach was needed.” Ibid .
The President reached this conclusion because

															“we’re in the middle of a war, and . . . had to
design a procedure that would allow us to pursue justice for these
individuals while at the same time prosecuting the war most
effectively. And that means setting rules that would allow us to
preserve our intelligence secrets, develop more information about
terrorist activities that might be planned for the future so that
we can take action to prevent terrorist attacks against the United
States. . . . [T]here was a constant balancing of the requirements
of our war policy and the importance of providing justice for
individuals . . . and each deviation from the standard
kinds of rules that we have in our criminal courts was motivated by
the desire to strike the balance between individual justice and the
broader war policy.” Ibid . (remarks of Douglas J. Feith,
Under Secretary of Defense for Policy (emphasis added)).

															The Court provides no explanation why the
President’s determination that employing court-martial procedures
in the military commissions established pursuant to Military
Commission Order No. 1 would hamper our war effort is in any way
inadequate to satisfy its newly minted “practicability”
requirement. On the contrary, this determination is precisely the
kind for which the “Judiciary 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.’ ” Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103 , 111 (1948). And, in the
context of the present conflict, it is exactly the kind of
determination Congress countenanced when it authorized the
President to use all necessary and appropriate force against our
enemies. Accordingly, the President’s determination is sufficient
to satisfy any practicability requirement imposed by Article
36(b).

															   The plurality further contends that Hamdan’s
commission is unlawful because it fails to provide him the right to
be present at his trial, as recognized in 10 U. S. C. A.
§839(c) (Supp. 2006). Ante , at 61. 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 detailed to the court, the military
judge.”

															In context, “all other proceedings” plainly refers
exclusively to “other proceedings” pertaining to a
court-martial.[ Footnote 18 ]
This is confirmed by the provision’s 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 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 Hamdan’s
military commission is also unlawful because it violates Common
Article 3 of the Geneva Conventions, see ante , at 65–72.
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 Hamdan’s Geneva Convention
claims are foreclosed by Johnson v. Eisentrager, 339 U. S. 763 (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. While this Court rejected the underlying merits of the
respondents’ Geneva Convention claims, id ., at 790, 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. 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 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.

															This alternative holding is no less binding than if
it were the exclusive basis for the Court’s decision. See Massachusetts v. United States, 333 U. S. 611 , 623
(1948). While the Court attempts to cast Eisentrager ’s
unqualified, alternative holding as footnote dictum, ante ,
at 63–64, 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 for such enforcement. Nor does the Court
suggest that the 1949 Geneva Conventions departed from this
framework. See ante , at 64 (“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 65
(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 (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 Eisentrager ’s holding merely by
observing that Article 21 mentions the law of war; indeed, though Eisentrager did not specifically consider the Court’s
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 Court’s interpretation of Article 21 is
foreclosed by Eisentrager .

															   In any event, the Court’s argument is too
clever by half. The judicial nonenforceability of the Geneva
Conventions derives from the fact that those Conventions have
exclusive enforcement mechanisms, see Eisentrager , supra , at 789, n. 14, and this, too, is part of the
law of war. The Court’s position thus rests on the assumption that
Article 21’s 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.

															   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 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 Court’s holding, relates to neither. Rather, it relates
exclusively to the particulars of the tribunal itself, namely,
whether it is “regularly constituted” and whether it “afford[s] all
the judicial guarantees which are recognized as indispensable by
civilized peoples.” Third Geneva Convention, Art. 3,
¶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 , Hamdan’s claim under 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 Court’s 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 (1982); United States v. Stuart, 489 U. S. 353 , 369
(1989). Our duty to defer to the President’s 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
(1936).

															   The President’s interpretation of
Common Article 3 is reasonable and should be sustained. The
conflict with al Qaeda is 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 President’s
judgments respecting the nature of our conflict with al Qaeda, nor
does it suggest that the President’s 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 68, precisely the type of
conflict the President’s 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 Executive’s
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
Common Article 3 are “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.” Art. 3, ¶1 (d) , 6 U. S. T., at
1318, 1320 (emphases 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 Hamdan’s 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
(1998) (internal quotation marks omitted).[ Footnote 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 Hamdan’s 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
(1997).

															   In any event, Hamdan’s 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:

															“ ‘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.

															Hamdan’s 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 Executive’s authority to alter those procedures, are consistent
with the practice of previous American military commissions. See supra , at 30–34 , and n. 15. The Court concludes Hamdan’s
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 71. 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, ¶1 (d), 6 U.
S. T., at 3320. Similarly, the procedures to
be employed by Hamdan’s commission afford “all the judicial
guarantees which are recognized as indispensable by civilized
peoples.” Neither the Court nor petitioner disputes the
Government’s 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, 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 (Dep’t 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 Article 3,[ Footnote
20 ] the plurality concludes that Hamdan’s commission is
unlawful because of the possibility that Hamdan will be barred from
proceedings and denied access to evidence that may be used to
convict him. Ante , at 70–72. But, under the commissions’
rules, the Government may not impose such bar or denial on Hamdan
if it would render his trial unfair, 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 Nation’s
intelligence gathering sources and methods, that “[i]t is ‘obvious
and unarguable’ that no governmental interest is more compelling
than the security of the Nation,” Haig , 453 U. S., at 307
(quoting Aptheker v. Secretary of State, 378 U. S. 500 , 509
(1964)), and that “[m]easures to protect the secrecy of our
Government’s foreign intelligence operations plainly serve these
interests,” Haig , supra , at 307. See also Snepp v. United States, 444 U. S. 507 , 509, n. 3
(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. 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
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. 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 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 President’s understanding of the
requirements of Common Article 3 is entitled to “great weight.” See supra , at 43. 4 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 Hamdan’s claim. Article 2 of the
Convention 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 1318. “Pursuant to [his] authority as Commander in
Chief and Chief Executive of the United States,” the President has
determined that the Convention is inapplicable here, explaining
that “none of the provisions of Geneva apply to our conflict with
al Qaeda in Afghanistan or elsewhere throughout the world, because,
among other reasons, al Qaeda is not a High Contracting Party.”
App. 35. The President’s findings about the nature of the present
conflict with respect to members of al Qaeda operating in
Afghanistan represents a core exercise of his commander-in-chief
authority that this Court is bound to respect. See Prize
Cases, 2 Black, at 670. *  *  * For these
reasons, I would affirm the judgment of the Court of
Appeals. Footnote
1 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. Footnote
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 (2004) (Thomas, J.,
dissenting) (same conclusion respecting detention of unlawful
combatants). Footnote
3 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 plurality’s
suggestion that such a rule is appropriate in this case. See ante , at 34–36, 48. 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 aided the terrorist
attacks that occurred on September 11, 2001.” Thus, the President’s
decision to try Hamdan by military commission—a use of force
authorized by the AUMF—for Hamdan’s 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
plurality’s 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. Footnote
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 35, n. 31. 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. Footnote
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 President’s 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. Bernard Julius Otto Kuehn , Board
of Review 5 (Office of the Military Governor, Hawaii 1942). Indeed,
in upholding the imposition of the death penalty, a sentence “not
authorized by the Espionage statutes,” ibid ., Kuehn’s
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 (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; it did “not
involve the well-established power of the military to exercise
jurisdiction over . . . enemy belligerents,” id ., at
313. Footnote
6 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 Court’s approach, the President’s ability to address this
“new paradigm” of inflicting death and mayhem would be completely
frozen by rules developed in the context of conventional
warfare. Footnote
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 (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; 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 37, n. 32 (emphasis
deleted), with being a member in a war criminal organization. But
that position is demonstrably wrong. Hamdan’s 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 plurality’s 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 45–46 (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 45. Just as
these atrocities, not separately charged, were independent
violations of the law of war supporting Wirz’s trial by military
commission, so too here Hamdan’s membership in al Qaeda and his
provision of various forms of assistance to al Qaeda’s top
leadership are independent violations of the law of war supporting
his trial by military commission. Footnote
8 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 Court maintains, “trea[t] the charge as if
it alleged the substantive offense of assassination.” Ante , at 40, n. 35. Rather, he explained that the
conspirators “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 General’s conclusions specifically
refute the plurality’s 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 37, n. 32. Footnote
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 to 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 “[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”). Footnote
10 Even if the plurality were
correct that a membership offense must be accompanied by
allegations that the “defendant ‘took up arms,’ ” ante , at 37, n. 32, 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. Footnote
11 The plurality recounts the
respective claims of the parties in Quirin pertaining to
this issue and cites the United States Reports. Ante , at
41-42. 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 Petitioners,” and “Argument for Respondent.”
See 317 U. S., at 6–17. Footnote
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 40, n. 35. 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 ___ (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 commission’s 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 enterprise’s top leadership. Footnote
13 The plurality’s 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 45. 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 Wirz’s offenses may have been comparably worse than Hamdan’s
offenses. The plurality’s claim that the
charge against Lenger 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 war by releasing rebel prisoners—a charge that bears no
relation to a crime “ordinarily triable in civilian courts.” Ante , at 46, n. 37. 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.’ ” Ibid. (quoting H. R. Doc. No. 314, at 689). But Judge Advocate
Holt’s observation provides no support for the plurality’s
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. Footnote
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 47 (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, pp. XI–XII. 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. Footnote
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 54, 53. 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
President’s 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”). Footnote
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 Yamashita ’s conclusion
respecting the President’s authority to promulgate military
commission procedures of its “precedential value.” Ante ,
at 56. 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 Court’s 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; Yamashita , 327 U. S.,
at 20; Madsen v. Kinsella , 343 U. S. 341 , 355 (1952). Footnote
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 14–15, 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 . Footnote
18 In addition to being
foreclosed by the text of the provision, the Court’s suggestion
that 10 U. S. C. A. §839(c) (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. Footnote
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 62, n. 55. But the Geneva
Contentions do not direct defendants to enforce their rights
through litigation, but through the Conventions’ exclusive
diplomatic enforcement provisions. Moreover, neither the Court’s
observation respecting the Geneva Conventions nor its reference to
the equitable doctrine of abstention bears on the constitutional prohibition on adjudicating unripe
claims. Footnote
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) (hereinafter Procedures for
Trials) (foreword by Lloyd N. Cutler).