Clarence Thomas

“ 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. ”

“ 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. ”

“ But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U.S.S. Cole, and the attacks of September 11—even if their plots are advanced to the very brink of fulfillment—our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists "redhanded," ante, at 612, in the midst of the attack itself, in order to bring them to justice. ”

“ 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." ”

“ 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." ”

“ 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. ”

“ 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 plurality's evident belief that it is qualified to pass on the "military necessity," ante, at 612, 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. ”

“ 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 [p. 694] war." ”

“ 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 Court does not dispute the conclusion that Common Article 3 cannot be violated unless and until Hamdan is convicted and sentenced. Instead, it contends that "the Geneva Conventions d [o] not direct an accused to wait until sentence is imposed to challenge the legality of the tribunal that is to try him." Ante, at 626, n. 55. But the Geneva Conventions do not direct defendants to enforce their rights through litigation, but through the Conventions' exclusive diplomatic enforcement provisions. ”

“ 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. ”

“ 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. ”

“ 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 offenses that by statute or by the law of war may be triable by such military commissions, provost courts, or other military tribunals. ”

“ 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. ”

“ 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. ”

“ 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." ”

“ 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. ”

“ Ante, at 598–600, 612. 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) . ”

“ Authorization for Use of Military Force (AUMF) , 115 Stat. [p. 681] 224, note following 50 U.S.C. §1541 (2000 ed., Supp. III) (emphasis added) . As a plurality of the Court observed in Hamdi, the "capture, detention, and trial of unlawful combatants, by 'universal agreement and practice,' are 'important incident [s] of war,'" 542 U.S., at 518 (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 ”

“ 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") ”

“ 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. ”