John Paul Stevens

“ Assuming, arguendo, that the reasons articulated in the President's Article 36 (a) determination ought to be considered in evaluating the impracticability of applying court­martial rules, the only reason offered in support of that determination is the danger posed by international terrorism. [52] [p. 624] 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 military commission was not born of a desire to dispense a more summary form of justice than is afforded by courts­martial; 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. [p. 625] That history explains why the military commission's procedures typically have been the ones used by courts-martial. ”

“ 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. ”

“ 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 com­ [p. 591] missions 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." ”

“ 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. ”

“ 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. ”

“ 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. [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. ”

“ When the Articles of War were codified and reenacted as the UCMJ in 1950, Congress determined to retain Article 15 because it had been "construed by the Supreme Court (Ex Parte Quirin, 317 U.S. 1 (1942) ) ." S. Rep. No. 486, 81st Cong., 1st Sess., 13 (1949) .↑ . 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. ”

“ 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. ”

“ Those subject to the November 13 Order include any noncitizen for whom the President determines "there is reason to believe" that he or she (1) "is or was" a member of al Qaeda or (2) has engaged or participated in terrorist activities aimed at or harmful to the United States. Id., at 57834. Any such individual "shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death." ”

“ 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 offences committed within the field of the command of the convening commander." ”

“ In truth, all three provisions govern jurisdiction over detainees' claims; subsection (e) (1) addresses jurisdiction in habeas cases and other actions "relating to any aspect of the detention," while subsections (e) (2) and (e) (3) vest exclusive, [11] but limited, jurisdiction in the 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. ”

“ 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 [p. 592] peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President.... ”

“ 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 644 (opinion concurring in part) . At a minimum, a military commission "can be 'regularly constituted' by the standards of our military justice sys­ [p. 633] tem only if some practical need explains deviations from court-martial practice." ”

“ 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 [p. 598] 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." ”

“ 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." ”

“ An "enemy combatant" is defined by the military order as "an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners." Memorandum from Deputy Secretary of Defense Paul Wolfowitz re: Order Establishing Combatant Status Review Tribunal §a (July 7, 2004) , available at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf (all Internet materials as visited June 26, 2006, and available in Clerk of Court's case file) .↑ . ”

“ Under the latter provision, then, the rules set forth in the Manual for Courts-Martial must apply to military commissions unless impracticable. [50]
[p. 623] 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. ”

“ 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." ”

“ 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) . [66]
[p. 634] 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 647, and for that reason, at least, fail to afford the requisite guarantees. ”

“ 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 [p. 626] majority respecting the first and the last. ”

“ 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 ”

“ 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. ”

“ 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'") . ”

“ Justice Thomas relies extensively on Madsen for the proposition that the President has free rein to set the procedures that govern military commissions. See post, at 706–707, 709, n. 16, 710, and 721. 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. ”

“ Though not binding law, the commentary is, as the parties recognize, relevant in interpreting the Conventions' provisions.↑ . 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) ”

“ Accordingly, the Tribunal determined to "disregard the charges...that the defendants conspired to commit War Crimes and Crimes against Humanity." 22 Trial of Major War Criminals 469; see also ibid. (" [T] he Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war") .↑ . ”