Hamdan v. Rumsfeld

548 U.S. 557

Case Year: 2006

Case Ruling: 5-3, Reversed and Remanded

Opinion Justice: Stevens

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Breyer, Ginsburg, Kennedy, Souter


1st Concurring Opinion

Author: Breyer

Joiner(s): Kennedy, Souter, Ginsburg

1st Dissenting Opinion

Author: Scalia

Joiner(s): Thomas, Alito

2nd Concurring Opinion

Author: Kennedy

Joiner(s): Souter, Ginsburg, Breyer

2nd Dissenting Opinion

Author: Thomas

Joiner(s): Scalia, Alito

3rd Concurring Opinion



3rd Dissenting Opinion

Author: Alito

Joiner(s): Scalia, Thomas

Other Concurring Opinions:


In response to the September 11, 2001, attacks on the United States by the terrorist organization, al Qaeda, Congress adopted a Joint Resolution authorizing the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks." This resolution is known as the Authorization for Use of Military Force (AUMF). President George W. Bush, acting pursuant to the AUMF, ordered the U.S. military to invade Afghanistan. During the hostilities there, hundreds of individuals, Salim Ahmed Hamdan among them, were captured and eventually detained at Guantanamo Bay, Cuba.

While the United States was still engaged in active combat in Afghanistan, Bush issued a military order intended to govern the "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism" (which the Supreme Court, in the excerpt below, calls the November 13, 2001, Order, or Order). Those subject to the Order included any noncitizen for whom the president determines there is reason to believe (1) is or was a member of al Qaeda or (2) has engaged or participated in terrorist activities aimed at or harmful to the United States. Such persons, known as "enemy combatants," may be tried by a military commission. To administer the program, the secretary of defense named a retired U.S. Army general as "Appointing Authority for Military Commissions." In 2004 Hamdan was charged officially with conspiracy to commit offenses triable by a military commission. Specifically, the government alleged that between 1996 and 2001 Hamdan willfully and knowingly joined an enterprise of persons who shared a common criminal purpose of attacking civilians and civilian objects. There was no allegation that Hamdan had any command responsibilities, exercised any leadership, or participated in the planning of any activity. His role in the conspiracy, according to the government, included acting as Osama bin Laden's personal driver, arranging and providing transportation for al Qaeda members, and receiving weapons training at al Qaeda-sponsored camps.

After the formal charge was filed, proceedings before the military commission began. Seeking to stop them, Hamdan's court-appointed military attorney filed for a writ of habeas corpus in a federal district court, where he argued that the commission lacked authority to try Hamdan because (1) conspiracy is not an offense that violates the law of war; and (2) the procedures adopted to try him were inconsistent with the basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.

The district court granted Hamdan's petition for habeas corpus and stayed the commission's proceedings, but the U.S. Court of Appeals for the District of Columbia reversed. The Supreme Court granted certiorari. This complex case confronted questions such as: (1) did the Supreme Court have jurisdiction to hear appeals from Guantanamo detainees? (2) did the president act legally in establishing the military commissions? (3) were the procedures followed by the military commissions in violation of either the Uniform Code of Military Justice (UCMJ) or the Geneva Conventions? and (4) is conspiracy an offense legally triable by a military commission. Note that because Chief Justice John Roberts participated in the case at the court of appeals level, he recused himself from the Supreme Court's review.



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 [Uniform Code of Military Justice] and the Geneva Conventions. Four of us also conclude, see Part V, 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.


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). We postponed our ruling on that motion pending argument on the merits, and now deny it. The DTA, which was signed into law on December 30, 2005, addresses a broad swath of subjects related to detainees. . . .

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:

" '. . . 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 . . . to have been properly detained as an enemy combatant.' "

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 [Combatant Status Review Tribunal or CSRT] that an alien is properly designated as an enemy combatant.". . .

Paragraph (3) . . . 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).". . .

. . . [The law states that the provisions of paragraphs 2 and 3 extend to any claims pending as of the date of the enactment of the statute.] The Act is silent about whether paragraph (1) . . . "shall apply" to claims pending on the date of enactment.

The Government argues that [the DTA] 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. . . .

. . . 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. . . .

. . . A familiar principle of statutory construction . . . 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. . . .

. . . "If Congress was reasonably concerned to ensure that [paragraphs 2 and 3] be applied to pending cases, it should have been just as concerned about [paragraph 1], unless it had the different intent that the latter [section] not be applied to the general run of pending cases." . . . Here, Congress not only considered the respective temporal reaches of paragraphs [1, 2, and 3] 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. Congress' rejection of the very language that would have achieved the result the Government urges here weighs heavily against the Government's interpretation. . . .

. . . 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. . . . For these reasons, we deny the Government's motion to dismiss.


Relying on our decision in [ Schlessinger v. ] Councilman (1975), 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." Like the District Court and the Court of Appeals before us, we reject this argument. . . .

Councilman identifies two considerations of comity that together favor abstention pending completion of ongoing court-martial proceedings against service personnel. 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. 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. . . .' ". . . . . . [N]either 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. . . .

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." 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. . . . [A]bstention is not justified here. We therefore proceed to consider the merits of Hamdan's challenge.


The military commission, a tribunal neither mentioned in the Constitution nor created by statute, was born of military necessity. . . .

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 (1866). And that authority, if it exists, can derive only from the powers granted jointly to the President and Congress in time of war.

The Constitution makes the President the "Commander in Chief" of the Armed Forces, but vests in Congress the powers to "declare War . . . and make Rules concerning Captures on Land and Water," to "raise and support Armies," to "define and punish . . . Offences against the Law of Nations," and "To make Rules for the Government and Regulation of the land and naval Forces." The interplay between these powers was described by Chief Justice Chase in the seminal case of Ex parte Milligan :

". . . 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. . . ."

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 [ Ex parteQuirin [1942] that Congress had, through Article of War 15 [which is substantially identical to current Article 21 of the UCMJ], sanctioned the use of military commissions in such circumstances. . . .

We have no occasion to revisit Quirin's controversial characterization of Article of War 15 as congressional authorization for military commissions. 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." Rather, the QuirinCourt 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. . . .

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 (2004), and that those powers include the authority to convene military commissions in appropriate circumstances, there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ.

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. . . .

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.


. . .The classic treatise [ Military Law and Precedents, 1920] penned by Colonel William Winthrop, whom we have called "the 'Blackstone of Military Law,' " 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." The "field of command" in these circumstances means the "theatre of war." Second, the offense charged "must have been committed within the period of the war." No jurisdiction exists to try offenses "committed either before or after the war." 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." 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." 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. . . . 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 . . . alleges a conspiracy extending over a number of years, from 1996 to November 2001. 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. 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.

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. . . .

. . . The crime of "conspiracy" has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions--the major treaties on the law of war. . . .

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. 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, but it is not an offense that "by the law of war may be tried by military commissio[n]." 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.


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." The procedures that the Government has decreed will govern Hamdan's trial by commission violate these laws.


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. . . .

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. . . . . . . [T]he procedures governing trials by military commission historically have been the same as those governing courts-martial. . . . 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. That understanding is reflected in Article 36 of the UCMJ. . . . 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 . . . 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. . . . 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." Hamdan also observes that the Commission Order dispenses with virtually all evidentiary rules applicable in courts-martial. . . .

. . . [W]e conclude that the "practicability" determination the President has made is insufficient to justify variances from the procedures governing courts-martial. . . .

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. . . . Without for one moment underestimating [the danger posed by international terrorism], 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. . . . 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).

VI D i-iii

The procedures adopted to try Hamdan also violate the Geneva Conventions. . . .

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." 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.

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. Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum," certain provisions protecting "[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." 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.". . .

Common Article 3, then, is applicable here and . . . requires that Hamdan be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.". . The commentary accompanying a provision of the Fourth Geneva Convention . . . defines " 'regularly constituted' " tribunals to include "ordinary military courts" and "definitely exclud[e] all special tribunals.". . .

VI D 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.". . .

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," and for that reason, at least, fail to afford the requisite guarantees. We add only that various provisions of Commission Order No. 1 dispense with the principles . . . 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. That the Government has a compelling interest in denying Hamdan access to certain sensitive information is not doubted. But, at least absent express statutory provision to the contrary, information used to convict a person of a crime must be disclosed to him.

VI D 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.


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 Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a "blank check." Cf.Hamdi v. Rumsfeld (2004) (plurality opinion). Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.

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.


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.


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


For the reasons set forth in Justice Scalia's dissent, it is clear that this Court lacks jurisdiction to entertain petitioner's claims. 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," 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. . . .

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." 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." The plurality's suggestion that Hamdan's commission is illegitimate because it is not dispensing swift justice on the battlefield is unsupportable. 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 [ Military Law and Precedents, 1920]; see also [ In reYamashita [1946] (military commission trial after the cessation of hostilities in the Philippines); [ Ex parteQuirin[1942] (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" 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 and after seeing them disregard the clear prudential counsel that they abstain in these circumstances from using equitable powers, 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. . . . 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.


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 [of the Geneva Conventions] 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. . . .

. . . 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. . . .

. . . Whatever else may be said about the system that was created by Military Commission Order No. 1 and augmented by the Detainee Treatment Act 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."