hamdan rumsfeld secretary defense et argued march decided june pursuant congress joint resolution authorizing president use necessary appropriate force nations organizations persons determines planned authorized committed aided september al qaeda terrorist attacks aumf armed forces invaded afghanistan hostilities militia forces captured petitioner hamdan yemeni national turned military transported prison guantanamo bay cuba year later president deemed hamdan eligible trial military commission crimes another year charged conspiracy commit offenses triable military commission habeas mandamus petitions hamdan asserted military commission lacks authority try neither congressional act common law war supports trial commission conspiracy offense hamdan says violation law war procedures adopted try violate basic tenets military international law including principle defendant must permitted see hear evidence district granted habeas relief stayed commission proceedings concluding president authority establish military commissions extends offenders offenses triable commission law war law includes third geneva convention hamdan entitled convention full protections adjudged prisoner war whether hamdan properly classified prisoner war commission convened try established violation uniform code military justice ucmj et common article third geneva convention power convict based evidence accused never see hear circuit reversed although declined government invitation abstain considering hamdan challenge cf schlesinger councilman appeals ruled merits hamdan entitled relief geneva conventions judicially enforceable also concluded ex parte quirin foreclosed objection military commission jurisdiction hamdan trial commission violate neither ucmj armed forces regulations implementing geneva conventions held judgment reversed case remanded reversed remanded justice stevens delivered opinion except parts concluding government motion dismiss based detainee treatment act dta denied dta provides shall jurisdiction hear consider application habeas corpus filed alien detained guantanamo bay section provides give circuit exclusive jurisdiction review final decisions respectively combatant status review tribunals military commissions shall apply respect claim whose review pending dta effective date hamdan case government argument repeal jurisdiction review decision rebutted ordinary principles statutory construction negative inference may drawn congress failure include within scope lindh murphy congress reasonably concerned ensure applied pending cases concerned unless different intent latter section applied general run pending cases anything evidence deliberate omission stronger lindh legislative history shows congress considered respective temporal reaches together every stage omitted paragraph directive rejected earlier proposed versions statute included paragraph within directive scope congress rejection language achieved result government urges weighs heavily government interpretation see doe chao pp government argues unpersuasively abstention appropriate councilman concluded matter comity federal courts normally abstain intervening pending service members see neither comity considerations councilman identified weighs favor abstention first assertion military discipline therefore armed forces efficient operation best served military justice system acts without regular interference civilian courts see inapt hamdan service member second view federal courts respect balance congress struck created integrated system military courts review procedures inapposite since tribunal convened try hamdan part integrated system rather councilman relevant precedent ex parte quirin far abstaining pending conclusion ongoing military proceedings expedited review public importance questions raised duty peace war preserve constitutional safeguards civil liberty public interest decision questions without delay government identified countervailing interest permit federal courts depart general duty exercise jurisdiction congress conferred pp military commission issue expressly authorized congressional act quirin held congress article war sanctioned use military commissions try offenders offenses law war powers include authority convene military commissions appropriate circumstances see nothing aumf text legislative history even hinting congress intended expand alter authorization set forth ucmj art cf ex parte yerger wall likewise dta read authorize commission although dta unlike either art aumf enacted president convened hamdan commission contains language authorizing tribunal guantanamo bay together ucmj aumf dta acknowledge general presidential authority convene military commissions circumstances justified constitution laws including law war absent specific congressional authorization task quirin decide whether hamdan military commission justified pp military commission issue lacks power proceed structure procedures violate ucmj four geneva conventions signed pp commission procedures set forth commission order provide among things accused civilian counsel may excluded precluded ever learning evidence presented part proceeding official appointed commission presiding officer decides close grounds closure include protection classified information physical safety participants witnesses protection intelligence law enforcement sources methods activities national security interests appointed military defense counsel must privy closed sessions may presiding officer discretion forbidden reveal client took place therein another striking feature rules governing hamdan commission permit admission evidence presiding officer opinion probative value reasonable person moreover accused civilian counsel may denied access classified protected information long presiding officer concludes evidence probative admission without accused knowledge result denial full fair trial pp government objects consideration procedural challenge stage grounds inter alia hamdan able raise challenge following final decision dta basis presume trial even commenced conducted good faith according law contentions unsound first hamdan apparently subject death penalty least matters stand may receive prison sentence shorter years automatic right review commission final decision dta second basis presume procedures employed hamdan trial violate law indeed already excluded trial thus review procedures advance final decision appropriate pp ucmj article complied rules specified hamdan commission trial illegal procedures governing trials historically governing although uniformity principle inflexible preclude departures procedures departure must tailored exigency necessitates understanding reflected art provides procedural rules president promulgates military commissions alike must uniform insofar practicable practicability determination president made insufficient justify variances procedures governing president determined pursuant requirement art impracticable apply rules principles law govern trial criminal cases district courts hamdan commission president however made similar official determination impracticable apply rules even subsection requirements satisfied without official practicability determination subsection requirements satisfied nothing record demonstrates impracticable apply rules suggestion logistical difficulty securing properly sworn authenticated evidence applying usual principles relevance admissibility evident danger posed international terrorism considerable though require case hamdan trial variance rules absence showing impracticability particularly disturbing considered light clear admitted failure apply one fundamental protections afforded manual also ucmj right present see jettisoning basic right lightly excused practicable rules must apply since undisputed commission order deviates many significant respects rules necessarily violates art pp procedures adopted try hamdan also violate geneva conventions circuit dismissed hamdan challenge regard grounds inter alia conventions judicially enforceable event hamdan entitled protections neither grounds persuasive pp appeals relied statement johnson eisentrager suggesting lacked power even consider merits convention argument political military authorities sole responsibility observing enforcing prisoners rights convention however eisentrager control regardless nature rights conferred hamdan cf rauscher indisputably part law war see hamdi compliance condition upon ucmj art authority granted pp ii alternatively appeals agreed government conventions apply hamdan captured war al qaeda convention signatory conflict distinct war signatory afghanistan need decide merits argument least one provision geneva conventions applies even relevant conflict signatories common article appears four conventions provides conflict international character occurring territory one high contracting parties signatories party conflict shall bound apply minimum certain provisions protecting ersons placed hors de combat detention including prohibition passing sentences without previous judgment regularly constituted affording judicial guarantees recognized indispensable civilized peoples circuit ruled common article inapplicable hamdan conflict al qaeda international scope thus conflict international reasoning erroneous quoted phrase bears literal meaning used contradistinction conflict nations demonstrated common article limits application armed conflict signatories provides signatories must abide terms conventions even another party conflict nonsignatory long nonsignatory accepts applies terms common article contrast affords minimal protection falling short full protection conventions individuals associated neither signatory even nonsignatory involved conflict territory signatory latter kind conflict involve clash nations whether signatories pp iii common article define regularly constituted phrase sources define words mean ordinary military cour established organized accordance laws procedures already force country regular military courts system established congressional statute minimum military commission regularly constituted practical need explains deviations practice need demonstrated pp iv common article requirements general crafted accommodate wide variety legal systems requirements nonetheless commission convened try hamdan meet requirements even assuming hamden dangerous individual cause great harm death innocent civilians given opportunity executive nevertheless must comply prevailing rule law undertaking try subject criminal punishment justice stevens joined justice souter justice ginsburg justice breyer concluded parts government charged hamdan offense law war may tried military commission three sorts military commissions used historically type used quirin cases model available try hamdan among preconditions incorporated article war later ucmj art tribunal exercise jurisdiction inter alia must limited trying offenses committed within convening commander field command within theater war offense charged must committed war hamdan alleged committed overt act theater war specified date september importantly offense alleged triable military commission although common law war may render triable military commission certain offenses defined statute quirin burden far satisfied crime conspiracy rarely ever tried country military commission exercising form jurisdiction appear either geneva conventions hague conventions major treaties law war moreover conspiracy recognized violation law war confirmed international sources including international military tribunal nuremberg pointedly refused recognize conspiracy commit war crimes violation conspiracy charge support commission jurisdiction commission lacks authority try hamdan pp phrase guarantees recognized indispensable civilized peoples common article geneva conventions defined must understood incorporate least barest trial protections recognized customary international law procedures adopted try hamdan deviate governing ways justified practical need thus fail afford requisite guarantees moreover various provisions commission order dispense principles indisputably part customary international law accused must absent disruptive conduct consent present trial must privy evidence pp justice kennedy agreeing hamdan military commission unauthorized uniform code military justice geneva conventions concluded therefore need decide whether common article conventions requires accused right present stages criminal trial address validity conspiracy charge hamdan pp stevens announced judgment delivered opinion respect parts iv vi vii kennedy souter ginsburg breyer joined opinion respect parts souter ginsburg breyer joined breyer filed concurring opinion kennedy souter ginsburg joined kennedy filed opinion concurring part souter ginsburg breyer joined parts ii scalia filed dissenting opinion thomas alito joined thomas filed dissenting opinion scalia joined alito joined parts alito filed dissenting opinion scalia thomas joined parts iii roberts took part consideration decision case salim ahmed hamdan petitioner donald rumsfeld secretary defense et al writ certiorari appeals district columbia circuit june justice stevens announced judgment delivered opinion respect parts iv parts vi part part vii opinion respect parts justice souter justice ginsburg justice breyer join petitioner salim ahmed hamdan yemeni national custody american prison guantanamo bay cuba november hostilities taliban governed afghanistan hamdan captured militia forces turned military june transported guantanamo bay year later president deemed eligible trial military commission crimes another year passed hamdan charged one count conspiracy commit offenses triable military commission app pet cert hamdan filed petitions writs habeas corpus mandamus challenge executive branch intended means prosecuting charge concedes constituted accordance uniform code military justice ucmj et seq ed supp iii authority try objection military commission president convened lacks authority two principal reasons first neither congressional act common law war supports trial commission crime conspiracy offense hamdan says violation law war second hamdan contends procedures president adopted try violate basic tenets military international law including principle defendant must permitted see hear evidence district granted hamdan request writ habeas corpus supp dc appeals district columbia circuit reversed recognizing ago trial military commission extraordinary measure raising important questions balance powers constitutional structure ex parte quirin granted certiorari reasons follow conclude military commission convened try hamdan lacks power proceed structure procedures violate ucmj geneva conventions four us also conclude see part infra offense hamdan charged offens law war may tried military commissions september agents al qaeda terrorist organization hijacked commercial airplanes attacked world trade center new york city national headquarters department defense arlington virginia americans never forget devastation wrought acts nearly civilians killed congress responded adopting joint resolution authorizing president use necessary appropriate force nations organizations persons determines planned authorized committed aided terrorist attacks order prevent future acts international terrorism nations organizations persons authorization use military force aumf stat note following supp iii acting pursuant aumf determined taliban regime supported al qaeda president ordered armed forces invade afghanistan ensuing hostilities hundreds individuals hamdan among captured eventually detained guantanamo bay november still engaged active combat taliban president issued comprehensive military order intended govern detention treatment trial certain war terrorism fed reg hereinafter november order order subject november order include noncitizen president determines reason believe member al qaeda engaged participated terrorist activities aimed harmful individual shall tried tried military commission offenses triable military commission individual alleged committed may punished accordance penalties provided applicable law including imprisonment death ibid november order vested secretary defense power appoint military commissions try individuals subject order power since delegated john altenberg retired army major general longtime military lawyer designated appointing authority military commissions july president announced determination hamdan five detainees guantanamo bay subject november order thus triable military commission december military counsel appointed represent hamdan two months later counsel filed demands charges speedy trial pursuant article ucmj february legal adviser appointing authority denied applications ruling hamdan entitled protections ucmj july hamdan commenced action district western district washington government finally charge offense year earlier deemed eligible trial military commission charging document unsigned contains numbered paragraphs first two paragraphs recite asserted bases military commission jurisdiction namely november order president july declaration hamdan eligible trial military commission next nine paragraphs collectively entitled general allegations describe al qaeda activities inception identify osama bin laden group leader hamdan mentioned paragraphs final two paragraphs entitled charge conspiracy contain allegations hamdan paragraph charges february november hamdan willfully knowingly joined enterprise persons shared common criminal purpose conspired agreed named members al qaeda commit following offenses triable military commission attacking civilians attacking civilian objects murder unprivileged belligerent terrorism app pet cert allegation hamdan command responsibilities played leadership role participated planning activity paragraph lists four overt acts hamdan alleged committed sometime november furtherance enterprise conspiracy acted osama bin laden bodyguard personal driver believ ing bin laden associates involved terrorist acts prior including attacks september arranged transportation actually transported weapons used al qaeda members bin laden bodyguards hamdan among drove accompanied sama bin laden various al training camps press conferences lectures bin laden encouraged attacks americans received weapons training al camps formal charge filed district western district washington transferred hamdan habeas mandamus petitions district district columbia meanwhile combatant status review tribunal csrt convened pursuant military order issued july decided hamdan continued detention guantanamo bay warranted enemy combatant separately proceedings military commission commenced november however district granted hamdan petition habeas corpus stayed commission proceedings concluded president authority establish military commissions extends offenders offenses triable military commission law war supp law war includes geneva convention iii relative treatment prisoners war third geneva convention hamdan entitled full protections third geneva convention adjudged compliance treaty prisoner war whether hamdan properly classified prisoner war military commission convened try established violation ucmj common article third geneva convention power convict based evidence accused never see hear supp appeals district columbia circuit reversed like district appeals declined government invitation abstain considering hamdan challenge cf schlesinger councilman merits panel rejected district conclusion hamdan entitled relief third geneva convention three judges agreed geneva conventions judicially enforceable two thought conventions event apply hamdan see williams concurring portions opinion concluded decision quirin foreclosed objection military commission jurisdiction held hamdan trial contemplated commission violate neither ucmj armed forces regulations intended implement geneva conventions november granted certiorari decide whether military commission convened try hamdan authority whether hamdan may rely geneva conventions proceedings ii february government filed motion dismiss writ certiorari ground cited dismissal recently enacted detainee treatment act dta pub stat postponed ruling motion pending argument merits deny dta signed law december addresses broad swath subjects related detainees places restrictions treatment interrogation detainees custody furnishes procedural protections personnel accused engaging improper interrogation dta stat also sets forth certain procedures status review detainees outside subsections direct secretary defense report congress procedures used csrts determine proper classification detainees held guantanamo bay iraq afghanistan adopt certain safeguards part procedures subsection entitled judicial review detention enemy combatants supplies basis government jurisdictional argument subsection contains three numbered paragraphs first paragraph amends judicial code follows section title code amended adding end following except provided section detainee treatment act justice judge shall jurisdiction hear consider application writ habeas corpus filed behalf alien detained department defense guantanamo bay cuba action agents relating aspect detention department defense alien guantanamo bay cuba currently military custody determined appeals district columbia circuit accordance procedures set forth section detainee treatment act properly detained enemy combatant paragraph subsection vests appeals district columbia circuit exclusive jurisdiction determine validity final decision csrt alien properly designated enemy combatant paragraph also delimits scope review see ii paragraph mirrors paragraph structure governs judicial review final decisions military commissions csrts vests appeals district columbia circuit exclusive jurisdiction determine validity final decision rendered pursuant military commission order dated august successor military order review right alien sentenced death term imprisonment years appeals discretion cases scope review limited following inquiries whether final decision military commission consistent standards procedures specified military order referred subparagraph ii extent constitution laws applicable whether use standards procedures reach final decision consistent constitution laws ibid finally contains effective date provision reads follows section shall take effect date enactment act review combatant status tribunal military commission paragraphs subsection shall apply respect claim whose review governed one paragraphs pending date enactment act act silent whether paragraph subsection shall apply claims pending date enactment government argues immediate effect upon enactment repealing federal jurisdiction detainee habeas actions yet filed also actions pending federal including accordingly argues lack jurisdiction review appeals decision hamdan objects theory constitutional statutory grounds principal among constitutional arguments government preferred reading raises grave questions congress authority impinge upon appellate jurisdiction particularly habeas cases support argument drawn ex parte yerger wall explained denial appellate jurisdiction consider original writ habeas corpus greatly weaken efficacy writ held congress presumed effected denial absent unmistakably clear statement contrary see see also felker turpin durousseau cranch opinion marshall appellate powers created statute given constitution klein wall cf ex parte mccardle wall holding congress validly foreclosed one avenue appellate review repeal habeas jurisdiction reproduced plainer instance positive exception hamdan also suggests government reading correct congress unconstitutionally suspended writ habeas corpus find unnecessary reach either arguments ordinary principles statutory construction suffice rebut government theory least insofar case pending time dta enacted concerned government acknowledges paragraphs subsection expressly made applicable pending cases see stat argues omission paragraph scope express statement moment told congress failure expressly reserve federal courts jurisdiction pending cases erects presumption jurisdiction presumption rebutted neither text legislative history dta first part argument entirely without support precedents past applied intervening statutes conferring ousting jurisdiction whether jurisdiction lay underlying conduct occurred suit filed landgraf usi film products citing bruner hallowell commons see republic austria altmann presumption cases applied accurately viewed nonapplication another presumption presumption retroactivity certain limited statutory provision operate retroactively applied cases pending time provision enacted traditional presumption teaches govern absent clear congressional intent favoring result landgraf explained however unlike intervening changes law statute usually takes away substantive right simply changes tribunal hear case hallowell truly statute retroactivity problem arises change law impair rights party possessed acted increase party liability past conduct impose new duties respect transactions already completed landgraf new rule retroactive effect presumption retroactivity prevent application case already pending new rule enacted mean however provisions even provisions truly lack retroactive effect must apply cases pending time ormal rules construction including contextual reading statutory language may dictate otherwise lindh murphy familiar principle statutory construction relevant lindh negative inference may drawn exclusion language one statutory provision included provisions statute see see also russello congress includes particular language one section statute omits another section act generally presumed congress acts intentionally purposely disparate inclusion lindh relied reasoning conclude certain limitations availability habeas relief imposed aedpa applied cases filed statute effective date congress failure identify temporal reach limitations governed noncapital cases stood contrast express command legislation new rules governing habeas petitions capital cases apply cases pending date enactment stat see lindh contrast combined fact amendments issue affect ed substantive entitlement relief warranted drawing negative inference like inference follows fortiori lindh case congress reasonably concerned ensure applied pending cases concerned unless different intent latter section applied general run pending cases anything evidence deliberate omission stronger lindh lindh provisions contrasted drafted separately later joined together considered simultaneously language raising implication inserted observed congress tandem review approval two sets provisions strengthened presumption relevant omission deliberate see also field mans apparently deliberate contrast stronger inference applied example contrasting statutory sections originally enacted simultaneously relevant respects congress considered respective temporal reaches paragraphs subsection together every stage omitted paragraph directive paragraphs apply pending cases rejected earlier proposed versions statute included paragraph within scope directive compare dta stat cong rec amdt see discussing similar language proposed house senate congress rejection language achieved result government urges weighs heavily government interpretation see doe chao government nonetheless offers two reasons view negative inference may drawn favor jurisdiction first asserts lindh inapposite section remove jurisdiction section create exclusive review mechanism define nature review reply brief support respondents motion dismiss provisions contrasted address wholly distinct subject matters martin hadix government argues congress different treatment significance argument must fail rests false distinction jurisdictional nature subsection procedural character subsections truth three provisions govern jurisdiction detainees claims subsection addresses jurisdiction habeas cases actions relating aspect detention subsections vest limited jurisdiction appeals district columbia circuit review final decision csrts military commissions subsection strips jurisdiction subsections restore limited form hardly distinction upon negative inference must founder justice scalia arguing contrary maintains congress ample reason provide explicitly application subsections pending cases provisions like subsection treated differently retroactivity jurisprudence ones like subsections post dissenting opinion see also reply brief support respondents motion dismiss theory insupportable assuming arguendo subsections confer new jurisdiction circuit none post emphasis original see rasul bush precedents read strongly indicat statutes raise special retroactivity concerns also raised statutes post subsections confer jurisdiction manner conceivably give rise retroactivity questions precedents provisions impose additional liability obligation private party even unless one counts burden litigating appeal burden single one cases suggests triggers retroactivity moreover strains credulity suggest desire reinforce application subsections pending cases drove congress exclude subsection government second objection applying subsections pending cases produces absurd result grants albeit temporarily dual jurisdiction detainees cases circumstances statute plainly envisions district columbia circuit exclusive immediate jurisdiction cases reply brief support respondents motion dismiss premise faulty subsections grant jurisdiction actions determine validity final decision csrt commission hamdan least contesting final decision csrt military commission action fall within scope subsection government general suggestion congress good reason preserving habeas jurisdiction cases brought detainees prior enactment dta belied legislative history see supra otherwise without merit nothing absurd scheme pending habeas actions particularly like one challenge legitimacy tribunals whose judgments congress like reviewed preserved routine challenges final decisions rendered tribunals carefully channeled particular particular lens review finally leave unaddressed justice scalia contentions meaning entirely clear post plain import statute repealing jurisdiction eliminate power consider render judgment already pending case less case yet filed post emphasis original treating bruner rule inflexible trump thing never see supra ignoring rest text drafting history one conclude much congress expressly provided subsections applied pending cases chose provide presented option subsection omission integral part statutory scheme muddies whatever plain meaning may discerned blinkered study subsection alone dissent speculation congress might intended omission counterfactual cf supra recounting legislative history rests misconstruction dta erroneous view precedents see supra reasons deny government motion iii relying decision councilman government argues even statutory jurisdiction apply rule civilian courts await final outcome military proceedings entertaining attack proceedings brief respondents like district appeals us reject argument councilman army officer active duty referred trial charges violated ucmj selling transferring possessing marijuana objecting alleged offenses connected officer filed suit federal district enjoin proceedings neither questioned lawfulness procedures disputed serviceman subject jurisdiction sole argument subject matter case fall within scope authority see district granted request injunctive relief appeals affirmed granted certiorari reversed reach merits whether marijuana charges sufficiently service connected place within jurisdiction instead concluded matter comity federal courts normally abstain intervening pending proceedings members armed nothing particular circumstances officer case displace general rule see councilman identifies two considerations comity together favor abstention pending completion ongoing proceedings service personnel see new cohen cadc see also discussing councilman new first military discipline therefore efficient operation armed forces best served military justice system acts without regular interference civilian courts see councilman second federal courts respect balance congress struck military preparedness fairness individual service members created integrated system military courts review procedures critical element military appeals consisting civilian judges removed military influence persuasion quoting abstention face ongoing state criminal proceedings justified expectation state courts enforce federal rights abstention face ongoing proceedings justified expectation military system established congress substantial procedural protections provision appellate review independent civilian judges vindicate servicemen constitutional rights see said indeed neither comity considerations identified councilman weighs favor abstention case first hamdan member nation armed forces concerns military discipline apply second tribunal convened try hamdan part integrated system military courts complete independent review panels congress established unlike officer councilman hamdan right appeal conviction civilian judges military appeals called appeals armed forces see pub stat instead dept defense military commission order commission order issued president march amended recently august governs procedures hamdan commission conviction reviewed panel consisting three military officers designated secretary defense commission order commission order provides appeal review panel decision may secretary defense finally president doubt various individuals assigned review power commission order strive act impartially ensure hamdan receive protections entitled nonetheless review bodies clearly lack structural insulation military influence characterizes appeals armed forces thus bear insufficient conceptual similarity state courts warrant invocation abstention sum neither two comity considerations underlying decision abstain councilman applies circumstances case instead decision quirin relevant precedent quirin seven german saboteurs captured upon arrival submarine new york florida president convened military commission try saboteurs filed habeas corpus petitions district district columbia challenging trial commission granted saboteurs petition certiorari appeals judgment see far abstaining pending conclusion military proceedings ongoing convened special term hear case expedited review course action warranted explained view public importance questions raised cases duty rests courts time war well time peace preserve unimpaired constitutional safeguards civil liberty opinion public interest required consider decide questions without avoidable delay ibid appeals recognized quirin provides compelling historical precedent power civilian courts entertain challenges seek interrupt processes military commissions circumstances case like quirin simply implicate obligations comity appropriate circumstances justify abstention quackenbush allstate ins kennedy concurring finally government identified important countervailing interest permit federal courts depart general duty exercise jurisdiction conferred upon congress majority opinion contrary hamdan government compelling interest knowing advance whether hamdan may tried military commission arguably without basis law operates free many procedural rules prescribed congress rules intended safeguard accused ensure reliability conviction certainly foreclose possibility abstention may appropriate cases seeking review ongoing military commission proceedings military commissions convened battlefield foregoing discussion makes clear precedent abstention justified therefore proceed consider merits hamdan challenge iv military commission tribunal neither mentioned constitution created statute born military necessity see winthrop military law precedents rev ed hereinafter winthrop though foreshadowed respects earlier tribunals like board general officers general washington convened try british major john andré spying revolutionary war commission inaugurated davis treatise military law ed hereinafter davis commander occupied mexican territory available tribunal general winfield scott year ordered establishment try ordinary crimes committed occupied territory council war try offenses law war winthrop emphases original exigencies war next gave rise need use military commissions civil war dual system favored general scott adopted instead single tribunal often took jurisdiction ordinary crimes war crimes breaches military orders alike discussed aspect seemingly broad jurisdiction fact supported separate military exigency generally though need military commissions period mexican war driven largely limited jurisdiction occasion military commission arises principally fact jurisdiction proper law restricted statute almost exclusively members military force certain specific offences defined written code emphasis original exigency alone course justify establishment use penal tribunals contemplated article article iii constitution unless part document authorizes response felt need see ex parte milligan wall certainly part judicial power country conferred military commissions ex parte vallandigham wall see also quirin constitution makes president commander chief armed forces art ii cl vests congress powers declare war make rules concerning captures land water art cl raise support armies cl define punish offences law nations cl make rules government regulation land naval forces cl interplay powers described chief justice chase seminal case ex parte milligan power make necessary laws congress power execute president powers imply many subordinate auxiliary powers includes authorities essential due exercise neither president war peace intrude upon proper authority congress congress upon proper authority president congress direct conduct campaigns president commander without sanction congress institute tribunals trial punishment offences either soldiers civilians unless cases controlling necessity justifies compels least insures acts indemnity justice legislature whether chief justice chase correct suggesting president may constitutionally convene military commissions without sanction congress cases controlling necessity question answered definitively need answer today held quirin congress article war sanctioned use military commissions circumstances articles war especially article congress explicitly provided far may constitutionally military tribunals shall jurisdiction try offenders offenses law war appropriate cases article ucmj language substantially identical old article preserved congress world war reads follows jurisdiction exclusive provisions code conferring jurisdiction upon shall construed depriving military commissions provost courts military tribunals concurrent jurisdiction respect offenders offenses statute law war may tried military commissions provost courts military tribunals stat occasion revisit quirin controversial characterization article war congressional authorization military commissions cf brief legal scholars historians amici curiae contrary government assertion however even quirin view authorization sweeping mandate president invoke military commissions deems necessary brief respondents rather quirin recognized congress simply preserved power constitution common law war president convene military commissions express condition president command comply law war see much evidenced inquiry following conclusion congress authorized military commissions whether law war indeed complied case see ibid government us dispense inquiry quirin undertook find either aumf dta specific overriding authorization commission convened try hamdan neither congressional acts however expands president authority convene military commissions first assume aumf activated president war powers see hamdi rumsfeld plurality opinion powers include authority convene military commissions appropriate circumstances see quirin see also yamashita nothing text legislative history aumf even hinting congress intended expand alter authorization set forth article ucmj cf yerger repeals implication favored likewise dta read authorize commission although dta unlike either article aumf enacted president convened hamdan commission contains language authorizing tribunal guantanamo bay dta obviously recognize existence guantanamo bay commissions weakest sense brief respondents references military orders governing creates limited judicial review final decision dta stat statute also pointedly reserves judgment whether constitution laws applicable reviewing decisions whether standards procedures used try hamdan detainees actually violate constitution laws ibid together ucmj aumf dta acknowledge general presidential authority convene military commissions circumstances justified constitution laws including law war absent specific congressional authorization task quirin decide whether hamdan military commission justified inquiry turn common law governing military commissions may gleaned past practice sparse legal precedent exists commissions historically used three situations see bradley goldsmith congressional authorization war terrorism harv rev winthrop hearings subcommittee house committee armed services first substituted civilian courts times places martial law declared use circumstances raised constitutional questions see duncan kahanamoku milligan well see winthrop second commissions established try civilians part temporary military government occupied enemy territory territory regained enemy civilian government function duncan third type commission convened incident conduct war need seize subject disciplinary measures enemies attempt thwart impede military effort violated law war quirin described utterly different two bickers military commissions constitutionally sound response professors katyal tribe tex tech rev jurisdiction limited offenses cognizable time war role primarily factfinding one determine typically battlefield whether defendant violated law war last time armed forces used military commission world war ii quirin sanctioned president roosevelt use tribunal try nazi saboteurs captured american soil war yamashita held military commission jurisdiction try japanese commander failing prevent troops command committing atrocities philippines quirin model government invokes frequently defend commission convened try hamdan appropriate unsurprising since guantanamo bay neither territory martial law commission model available time robust model executive power exists quirin represents mark military power try enemy combatants war crimes classic treatise penned colonel william winthrop called military law reid covert plurality opinion describes least four preconditions exercise jurisdiction tribunal type convened try hamdan first military commission except otherwise authorized statute legally assume jurisdiction offenses committed within field command convening commander winthrop field command circumstances means theatre war ibid second offense charged must committed within period war jurisdiction exists try offenses committed either war ibid third military commission established pursuant martial law occupation may try ndividuals enemy army guilty illegitimate warfare offences violation laws war members one army time war become chargeable crimes offences cognizable triable criminal courts articles war finally commission jurisdiction try two kinds offense violations laws usages war cognizable military tribunals reaches military orders regulations offenders legally triable articles war parties agree colonel winthrop treatise accurately describes common law governing military commissions jurisdictional limitations identifies incorporated article war later article ucmj also undisputed hamdan commission lacks jurisdiction try unless charge properly set forth details act charged circumstances conferring jurisdiction emphasis original question whether preconditions designed ensure military necessity exists justify use extraordinary tribunal satisfied charge hamdan described detail part supra alleges conspiracy extending number years november two months period preceded attacks september enactment aumf act congress government relies exercise war powers thus authority convene military neither purported agreement osama bin laden others commit war crimes single overt act alleged occurred theater war specified date september none overt acts hamdan alleged committed violates law war facts alone cast doubt legality charge hence commission winthrop makes plain offense alleged must committed theater war relevant conflict deficiencies time place allegations also underscore indeed symptomatic serious defect charge offense alleges triable military commission see yamashita neither congressional action military orders constituting commission authorized place petitioner trial unless charge proffered violation law war suggestion congress exercise constitutional authority define punish offences law nations art cl positively identified conspiracy war explained quirin necessarily fatal government claim authority try alleged offense military commission congress article ucmj incorporated reference common law war may render triable military commission certain offenses defined statute acknowledging congress may delegate power make laws reid founders envisioned army necessary institution one dangerous liberty confined within essential bounds federalist cooke ed madison accumulation powers legislative executive judiciary hands may justly pronounced definition tyranny high standard met quirin violation alleged universal agreement practice country internationally recognized offense law war see precept law war recognized practice abroad generally accepted valid authorities international law think must regarded rule principle law war recognized government enactment fifteenth article war omitted although picture arguably less clear yamashita compare stating provisions fourth hague convention stat plainly required defendant control troops command murphy dissenting disagreement majority dissenters case concerned whether historic textual evidence constituted clear precedent whether clear precedent required justify trial military commission minimum government must make substantial showing crime seeks try defendant military commission acknowledged offense law war burden far satisfied crime conspiracy rarely ever tried country military commission exercising form appear either geneva conventions hague conventions major treaties law winthrop explains common law governing military commissions enough intend violate law war commit overt acts furtherance intention unless overt acts either offenses law war constitute steps sufficiently substantial qualify attempt see winthrop jurisdiction military commission restricted cases offence consisting overt acts unlawful commissions actual attempts commit intentions merely emphasis original government cites three sources says show otherwise first points nazi saboteurs quirin charged conspiracy see brief respondents second observes winthrop one point treatise identifies conspiracy offense prosecuted military commissions ibid citing winthrop finally notes another military historian charles roscoe howland lists conspiracy violate laws war destroying life property aid offense tried violation law war civil war brief respondents citing howland digest opinions judge advocates general army hereinafter howland close analysis however sources best lend little support government position worst undermine measure fail satisfy high standard clarity required justify use military commission defendants quirin charged conspiracy persuasive since declined address whether offense actually qualified violation law war let alone one triable military commission quirin defendants charged following offenses violation law war ii violation article articles war defining offense relieving attempting relieve corresponding giving intelligence enemy iii violation article defining offense spying iv conspiracy commit offenses alleged charges ii iii government defending charge argued conspiracy alleged constitute additional violation law war saboteurs disagreed maintained charge conspiracy stand charges fall however declined resolve dispute concluded first specification supporting charge adequately alleged violation law war merely colorable without foundation facts deemed sufficient purpose defendants admitted enemy combatants entered upon territory time war without uniform purpose destroying property used useful prosecuting war act hostile warlike one careful decision identify overt complete act responding argument saboteurs actually committed attempted commit act depredation entered theatre zone active military operations therefore violated law war responded actually passed military naval lines defenses went behind lines civilian dress hostile purpose offense complete purpose entered entered remained upon territory time war without uniform appropriate means identification ibid turning charges alleged explained ince first specification charge sets forth violation law war occasion pass adequacy second specification charge construe articles war purpose ascertaining whether specifications charges ii iii allege violations articles whether construed constitutional mention made charge iv conspiracy charge anything quirin supports hamdan argument conspiracy violation law war pointedly omit discussion conspiracy charge analysis charge placed special emphasis completion offense took seriously saboteurs argument violation law war least one triable military commission without actual commission attempt commit hostile warlike act limitation makes eminent sense one considers necessity whence kind military commission grew need dispense swift justice often form execution illegal belligerents captured battlefield see testimony brig enoch crowder observing article war preserves power military commander field time war use military commissions emphasis added urgency felt enemies done little agree violate laws war cf op atty opining german spy tried military commission apprehended entering camp fortification military premises committed offenses outside field military operations quirin acknowledged much described president authority use military commissions power seize subject disciplinary measures enemies attempt thwart impede military effort violated law war emphasis added winthrop howland superficially helpful government howland granted lists conspiracy two violate laws war destroying life property aid enemy one offenses laws usages war passed upon punished military commissions howland records cases howland cites following list offenses law war support inclusion offenses mentioned provide support inclusion conspiracy violation law war see ibid citing record books judge advocate general office winthrop apparently recognizing much excludes conspiracy kind list offenses law war see winthrop winthrop unsurprisingly include criminal conspiracies list rimes statutory offenses cognizable state courts triable martial law military government commission see cites several civil war examples conspiracies class first second classes combined emphasis added government relies contention conspiracy triable ordinary crime crime first class independently war crime crime second class support weight government places seen military commissions convened civil war functioned martial law military government tribunals commissions see supra accordingly regularly tried war crimes ordinary crimes together indeed howland observes ot infrequently crime charged found combination two species offenses howland see also davis winthrop example gives violation laws war howland winthrop conspiracy first second classes combined like howland example best understood species compound offense type tried hybrid military commissions civil war offense law war winthrop confirms understanding later discussion emphasizes overt acts constituting war crimes proper subject least military tribunals convened stand local courts winthrop nn emphasis original citing finlason martial law justice thomas cites evidence conspiracy recognized violation law war civil war indictment henry wirz charged defendant aliciously willfully traitorously combining confederating conspiring others injure health destroy lives soldiers military service end armies might weakened impaired violation laws customs war post dissenting opinion quoting doc emphasis deleted shown specification supporting charge however wirz alleged personally committed number atrocities victims including torture injection prisoners poison use ferocious bloodthirsty dogs seize tear mangle maim bodies limbs prisoners many died result crucially judge advocate general holt determined one wirz alleged winder tried military commission yet insufficient evidence personal involvement atrocities case winder evidence trial wirz deemed implicate conspiracy lives federal prisoners rebel hands specific overt acts violation laws war yet fixed upon make expedient prefer formal charges bring trial emphases added finally international sources confirm crime charged recognized violation law observed see supra none major treaties governing law war identifies conspiracy violation thereof conspiracy crimes recognized international war crimes tribunals whose jurisdiction often extends beyond war crimes proper crimes humanity crimes peace conspiracy commit genocide common plan wage aggressive war crime peace requires commission actual participation concrete plan wage war trial major war criminals international military tribunal nuremberg november october international military tribunal nuremberg prosecution objections pointedly refused recognize violation law war conspiracy commit war crimes see convicted hitler senior associates conspiracy wage aggressive war see pomorski conspiracy criminal organization nuremberg trial international law ginsburgs kudriavtsev eds one prominent figure nuremberg trials explained members tribunal objected recognition conspiracy violation law war ground concept conspiracy part european legal systems arguably element internationally recognized laws war taylor anatomy nuremberg trials personal memoir see also observing francis biddle attorney general prosecuted defendants quirin thought french judge made argument conspiracy truest sense known international sum sources government justice thomas rely upon show conspiracy violate law war violation law war fact demonstrate quite opposite far making requisite substantial showing government failed even offer merely colorable case inclusion conspiracy among offenses cognizable military commission cf quirin charge support commission jurisdiction commission lacks authority try hamdan charge shortcomings merely formal indicative broader inability executive part satisfy basic precondition least absence specific congressional authorization establishment military commissions military necessity hamdan tribunal appointed military commander field battle retired major general stationed away active hostilities cf rasul bush kennedy concurring judgment observing guantanamo bay far removed hostilities hamdan charged overt act caught redhanded theater war military efficiency demands tried expeditiously agreement inception long predated attacks september aumf may well offense law war may tried military commissio none overt acts alleged committed furtherance agreement war crime even necessarily occurred time theater war urgent need imposition execution judgment utterly belied record hamdan arrested november charged simply circumstances stretch historical evidence precedents military commission established executive order authority article ucmj may lawfully try person subject punishment vi whether government charged hamdan offense law war cognizable military commission commission lacks power proceed ucmj conditions president use military commissions compliance american common law war also rest ucmj insofar applicable rules precepts law nations quirin including inter alia four geneva conventions signed see yamashita procedures government decreed govern hamdan trial commission violate laws commission procedures set forth commission order amended recently august hamdan trial already begun every commission established pursuant commission order must presiding officer least three members must commissioned officers presiding officer job rule questions law evidentiary interlocutory issues members make findings applicable sentencing decisions accused entitled appointed military counsel may hire civilian counsel expense long counsel citizen security clearance level secret higher accused also entitled copy charge english language different presumption innocence certain rights typically afforded criminal defendants civilian courts see rights subject however one glaring condition accused civilian counsel may excluded precluded ever learning evidence presented part proceeding either appointing authority presiding officer decides close grounds closure include protection information classified classifiable information protected law rule unauthorized disclosure physical safety participants commission proceedings including prospective witnesses intelligence law enforcement sources methods activities national security interests appointed military defense counsel must privy closed sessions may presiding officer discretion forbidden reveal client took place therein ibid another striking feature rules governing hamdan commission permit admission evidence opinion presiding officer probative value reasonable person test testimonial hearsay evidence obtained coercion fully admissible neither live testimony witnesses written statements need sworn see moreover accused civilian counsel may denied access evidence form protected information includes classified information well information protected law rule unauthorized disclosure information concerning national security interests long presiding officer concludes evidence probative admission without accused knowledge result denial full fair trial finally presiding officer determination evidence probative value reasonable person may overridden majority commission members evidence commission members including presiding officer must vote accused guilt vote suffice verdict guilty imposition sentence including death imposition requires unanimous vote appeal taken review panel composed military officers designated secretary defense one member need experience judge review panel directed disregard variance procedures specified order elsewhere materially affected outcome trial commission ibid panel makes recommendation secretary defense secretary either remand proceedings forward record president recommendation final disposition president unless delegated task secretary makes final decision may change commission findings sentence manner favorable accused ibid hamdan raises general particular objections procedures set forth commission order general objection procedures admitted deviation governing renders commission illegal chief among particular objections may commission order convicted based evidence seen heard evidence admitted need comply admissibility relevance rules typically applicable criminal trials proceedings government objects consideration procedural challenge stage grounds abstention doctrine espoused councilman precludes review procedural rules hamdan able raise challenge following final decision dta basis presume trial even commenced trial conducted good faith according law brief respondents nn first contentions disposed part iii supra neither latter two sound first hamdan apparently subject death penalty least matters stand may receive sentence shorter years imprisonment automatic right review commission final decision federal dta see stat second contrary government assertion basis presume procedures employed hamdan trial violate law procedures described particularity commission order implementation already occurred one hamdan complaints indeed already excluded trial see reply brief petitioner app pet cert circumstances review procedures advance final decision timing left entirely discretion president dta appropriate turn consider merits hamdan procedural challenge part difference military commissions originally difference jurisdiction alone part protect abuse ensure evenhandedness pressures war procedures governing trials military commission historically governing see war rebellion series general order issued civil war required military commissions constituted similar manner proceedings conducted according general rules order prevent abuses might otherwise arise accounts commentators winthrop general crowder drafted article war whose views deemed authoritative madsen confirm recently korean vietnam wars use military commissions contemplated never made principle procedural parity espoused background assumption see paust antiterrorism military commissions courting illegality glaring historical exception general rule procedures evidentiary rules used try general yamashita near end world war ii deviated significant respects governing see force precedent however seriously undermined war ii developments yamashita late september commanding general fourteenth army group imperial japanese army exercised control philippine islands september american forces regained control philippines yamashita surrendered three weeks later charged violations law war weeks arraigned military commission convened philippines pleaded guilty trial lasted two months december yamashita convicted sentenced hang see murphy dissenting upheld denial petition writ habeas corpus procedures rules evidence employed yamashita trial departed far used generated unusually long vociferous critique two members see rutledge joined murphy dissenting among dissenters primary concerns commission free rein consider evidence commission opinion assistance proving disproving charge without usual modes authentication rutledge majority however pass merits yamashita procedural challenges concluded status disentitled protection articles war specifically set forth article become article ucmj geneva convention stat geneva convention explained yamashita neither person made subject articles war article thereof protected prisoner war tried crimes committed detention least partially response subsequent criticism general yamashita trial ucmj codification articles war world war ii expanded category persons subject thereto include defendants yamashita hamdan third geneva convention extended protections individuals tried crimes committed capture see comm red commentary geneva convention relative treatment prisoners war hereinafter gciii commentary explaining article extends convention protections risoners war prosecuted laws detaining power acts committed prior capture adopted response judicial interpretations convention including decision yamashita notorious exception principle uniformity stripped precedential value uniformity principle inflexible one preclude departures procedures dictated use departure must tailored exigency necessitates see winthrop understanding reflected article ucmj provides procedure including modes proof cases courts inquiry military commissions military tribunals may prescribed president regulations shall far considers practicable apply principles law rules evidence generally recognized trial criminal cases district courts may contrary inconsistent chapter rules regulations made article shall uniform insofar practicable shall reported congress stat article places two restrictions president power promulgate rules procedure military commissions alike first procedural rule adopts may contrary inconsistent ucmj however practical may seem second rules adopted must uniform insofar practicable rules applied military commissions must applied unless uniformity proves impracticable hamdan argues commission order violates restrictions maintains procedures described commission order inconsistent ucmj government offered explanation deviation procedures governing set forth manual ed manual among inconsistencies hamdan identifies commission order permits exclusion accused proceedings denial access evidence certain circumstances ucmj requirement proceedings votes deliberations shall made part record shall presence accused supp hamdan also observes commission order dispenses virtually evidentiary rules applicable government three responses first argues ucmj articles ones expressly mention military commissions actually apply commissions commission order sets forth procedure contrary inconsistent provisions second government contends military commissions use president hamstrung provisions ucmj govern finally president determination danger safety nature international terrorism renders impracticable apply military commissions principles law rules evidence generally recognized trial criminal cases district courts november order government view explanation enough deviation procedures see brief respondents hamdan better argument without reaching question whether provision commission order strictly contrary inconsistent provisions ucmj conclude practicability determination president made insufficient justify variances procedures governing subsection article added world war ii requires different showing impracticability one required subsection subsection requires rules president promulgates provost courts military commissions alike conform govern procedures article iii courts far considers practicable emphasis added subsection contrast demands rules applied provost courts military commissions whether conform federal rules evidence uniform insofar practicable emphasis added latter provision rules set forth manual must apply military commissions unless president determined pursuant subsection impracticable apply rules principles law govern trial criminal cases district courts hamdan commission assume complete deference owed determination president however made similar official determination impracticable apply rules even subsection requirements may satisfied without official determination requirements subsection satisfied nothing record us demonstrates impracticable apply rules case suggestion example logistical difficulty securing properly sworn authenticated evidence applying usual principles relevance admissibility assuming arguendo reasons articulated president article determination considered evaluating impracticability applying rules reason offered support determination danger posed international without one moment underestimating danger evident us require case hamdan trial variance rules govern absence showing impracticability particularly disturbing considered light clear admitted failure apply one fundamental protections afforded manual also ucmj right present see supp whether departure technically contrary inconsistent terms ucmj jettisoning basic right lightly excused practicable circumstances rules applicable must apply since undisputed commission order deviates many significant respects rules necessarily violates article government objection requiring compliance rules imposes undue burden ignores plain meaning article misunderstands purpose history military commissions military commission born desire dispense summary form justice afforded developed rather tribunal necessity employed lacked jurisdiction either accused subject matter see winthrop exigency lent commission legitimacy justify wholesale jettisoning procedural protections history explains military commission procedures typically ones used jurisdiction two tribunals today may sometimes overlap see madsen detract force history article transform military commission tribunal true exigency convenient adjudicatory tool article confirming much strikes careful balance uniform procedure need accommodate exigencies may sometimes arise theater war article complied rules specified hamdan trial procedures adopted try hamdan also violate geneva conventions appeals dismissed hamdan geneva convention challenge three independent grounds geneva conventions judicially enforceable hamdan event entitled protections even entitled protections councilman abstention appropriate judge williams concurring rejected second ground agreed majority respecting first last explained part iii supra abstention rule applied councilman applicable reasons follow hold neither grounds appeals gave decision persuasive appeals relied johnson eisentrager hold hamdan invoke geneva conventions challenge government plan prosecute accordance commission order eisentrager involved challenge german nationals convictions war crimes military tribunal convened nanking china subsequent imprisonment occupied germany petitioners argued inter alia geneva convention rendered illegal procedures employed trials said deviated impermissibly procedures used try american soldiers see rejected claim merits petitioners unlike hamdan failed identify prejudicial disparity commission tried try offending soldier american forces like rank event claim protection convention trials crimes occurred confinement prisoners war buried opinion however curious statement suggesting lacked power even consider merits geneva convention argument holding prisoners right military authorities bound respect geneva convention july stat concluded countries including german reich agreement upon treatment accorded captives prisoners claim entitled protection however obvious scheme agreement responsibility observance enforcement rights upon political military authorities rights alien enemies vindicated protests intervention protecting powers rights citizens foreign governments vindicated presidential intervention appeals strength held geneva convention confer upon hamdan right enforce provisions whatever else might said eisentrager control case may assume obvious scheme conventions identical relevant respects even scheme absent provision law preclude hamdan invocation convention provisions independent source law binding government actions furnishing petitioner enforceable regardless nature rights conferred hamdan cf rauscher government dispute part law war see hamdi plurality opinion compliance law war condition upon authority set forth article granted ii appeals acknowledgment condition bar hamdan trial commission alternative holding hamdan invoke geneva conventions appeals concluded conventions event apply armed conflict hamdan captured accepted executive assertions hamdan captured connection war al qaeda war distinct war taliban afghanistan reasoned war al qaeda evades reach geneva conventions see like judge williams disagree latter conclusion conflict al qaeda according government conflict full protections afforded detainees geneva conventions apply article conventions appears four conventions renders full protections applicable cases declared war armed conflict may arise two high contracting parties since hamdan captured detained incident conflict al qaeda conflict taliban since al qaeda unlike afghanistan high contracting party signatory conventions protections conventions argued applicable need decide merits argument least one provision geneva conventions applies even relevant conflict one article often referred common article like article appears four geneva conventions provides conflict international character occurring territory one high contracting parties conflict shall bound apply minimum certain provisions protecting ersons taking active part hostilities including members armed forces laid arms placed hors de combat detention one provision prohibits passing sentences carrying executions without previous judgment pronounced regularly constituted affording judicial guarantees recognized indispensable civilized peoples ibid appeals thought government asserts common article apply hamdan conflict al qaeda scope qualify international character reasoning erroneous term conflict international character used contradistinction conflict nations much demonstrated fundamental logic convention provisions application williams concurring common article provides present convention shall apply cases declared war armed conflict may arise two high contracting parties art high contracting parties signatories also must abide terms conventions one another even one party conflict nonsignatory power must abide nonsignatory latter accepts applies terms ibid art common article contrast affords minimal protection falling short full protection conventions individuals associated neither signatory even nonsignatory power involved conflict territory signatory latter kind conflict distinguishable conflict described common article chiefly involve clash nations whether signatories context phrase international character bears literal meaning see bentham introduction principles morals legislation burns hart eds using term international law new though inexpressive appellation meaning betwixt nation nation defining international include mutual transactions sovereigns commentary additional protocols geneva conventions august armed conflict distinct international armed conflict legal status entities opposing although official commentaries accompanying common article indicate important purpose provision furnish minimal protection rebels involved one kind conflict international character civil war see gciii commentary commentaries also make clear scope article must wide possible fact limiting language rendered common article applicable especially cases civil war colonial conflicts wars religion omitted final version article coupled broader scope application narrower range rights earlier proposed iterations see gciii commentary iii common article applicable indicated requires hamdan tried regularly constituted affording judicial guarantees recognized indispensable civilized peoples art term regularly constituted specifically defined either common article accompanying commentary sources disclose core meaning commentary accompanying provision fourth geneva convention example defines tribunals include ordinary military courts definitely exclud special tribunals gciv commentary defining term properly constituted article commentary treats identical regularly constituted see also yamashita rutledge dissenting describing military commission specially constituted particular trial one red cross treatises defines regularly constituted used common article mean established organized accordance laws procedures already force country comm red cross customary international humanitarian law see also gciv commentary observing ordinary military courts set accordance recognized principles governing administration justice government offers cursory defense hamdan military commission light common article see brief respondents justice kennedy explains defense fails regular military courts system established congressional statutes post opinion concurring part minimum military commission constituted standards military justice system practical need explains deviations practice post explained see part supra need demonstrated iv inextricably intertwined question regular constitution evaluation procedures governing tribunal whether afford judicial guarantees recognized indispensable civilized peoples art like phrase regularly constituted phrase defined text geneva conventions must understood incorporate least barest trial protections recognized customary international law many described article protocol geneva conventions adopted protocol although declined ratify protocol objections article thereof indeed appears government regard provisions article articulation safeguards persons hands enemy entitled taft law armed conflict salient features yale among rights set forth article right tried one presence protocol art agree justice kennedy procedures adopted try hamdan deviate governing ways justified evident practical need post reason least fail afford requisite guarantees see post add noted part supra various provisions commission order dispense principles articulated article indisputably part customary international law accused must absent disruptive conduct consent present trial must privy evidence see government compelling interest denying hamdan access certain sensitive information doubted cf post thomas dissenting least absent express statutory provision contrary information used convict person crime must disclosed common article obviously tolerates great degree flexibility trying individuals captured armed conflict requirements general ones crafted accommodate wide variety legal systems requirements nonetheless commission president convened try hamdan meet requirements vii assumed must allegations made government charge hamdan true assumed moreover truth message implicit charge hamdan dangerous individual whose beliefs acted upon cause great harm even death innocent civilians act upon beliefs given opportunity bears emphasizing hamdan challenge today address government power detain duration active hostilities order prevent harm undertaking try hamdan subject criminal punishment executive bound comply rule law prevails jurisdiction judgment appeals reversed case remanded proceedings ordered chief justice took part consideration decision case salim ahmed hamdan petitioner donald rumsfeld secretary defense et al writ certiorari appeals district columbia circuit june justice breyer justice kennedy justice souter justice ginsburg join concurring dissenters say today decision sorely hamper president ability confront defeat new deadly enemy post opinion thomas suggest undermines nation ability preven future attacks grievous sort already suffered post claim leads state briefly believe majority sets forth explicitly implicitly greater length conclusion ultimately rests upon single ground congress issued executive blank check cf hamdi rumsfeld plurality opinion indeed congress denied president tive authority create military commissions kind issue nothing prevents president returning congress seek authority believes necessary emergency prevents consultation congress judicial insistence upon consultation weaken nation ability deal danger contrary insistence strengthens nation ability determine democratic means best constitution places faith democratic means today simply salim ahmed hamdan petitioner donald rumsfeld secretary defense et al writ certiorari appeals district columbia circuit june justice kennedy justice souter justice ginsburg justice breyer join parts ii concurring part military commission order governs military commission established try petitioner salim hamdan war crimes exceeds limits certain statutes duly enacted congress placed president authority convene military courts case executive assert unilateral authority fill void left congressional inaction case congress proper exercise powers independent branch government part long tradition legislative involvement matters military justice considered subject military tribunals set limits president authority statute provides conditions exercise governmental power requirements result deliberative reflective process engaging political branches respect laws derived customary operation executive legislative branches gives assurance stability time crisis constitution best preserved reliance standards tested time insulated pressures moment principles seem vindicated case may extraordinary importance resolved ordinary rules rules relevance pertaining authority congress interpretation enactments seems appropriate recite rather fundamental points refers exposition case requirement geneva conventions military tribunals regularly constituted ante requirement controls reason congress requires military commissions like ones issue conform law war whatever substance content term regularly constituted interpreted later cases seems little doubt relies upon importance standards deliberated upon chosen advance crisis system single power executive checked constitutional mechanisms returns us point beginning domestic statutes control case congress due consideration deems appropriate change controlling statutes conformance constitution laws power prerogative join opinion save parts state reasons reservation show agreement remainder analysis identifying particular deficiencies military commissions issue separate opinion seems appropriate trial military commission raises concerns highest order located within single branch courts carry risk offenses defined prosecuted adjudicated executive officials without independent review cf loving concentration power puts personal liberty peril arbitrary action officials incursion constitution system designed avoid imperative military tribunals established full proper authority exists presidential directive proper framework assessing whether executive actions authorized scheme used justice jackson opinion youngstown sheet tube sawyer president acts pursuant express implied authorization congress authority maximum includes possesses right plus congress delegate president acts absence either congressional grant denial authority rely upon independent powers zone twilight congress may concurrent authority distribution uncertain hen president takes measures incompatible expressed implied congress power lowest ebb ibid case observes president acted field history congressional participation regulation ante uniform code military justice ucmj et congress enacted building earlier statutes see act may ch stat later amended see military justice act stat congress set forth governing principles military courts ucmj whole establishes intricate system military justice authorizes various forms ed supp iii regulates organization procedure courts defines offenses rights accused ed provides mechanisms appellate review ed supp iii explained statute recognizes special military commissions may convened try war crimes see infra laws provide authority certain forms military courts also impose limitations least two control case president exceeded limits becomes case conflict presidential congressional action case within justice jackson third category second first one limit president authority contained ucmj section provides pretrial trial procedures including modes proof cases arising chapter triable military commissions military tribunals procedures courts inquiry may prescribed president regulations shall far considers practicable apply principles law rules evidence generally recognized trial criminal cases district courts may contrary inconsistent chapter rules regulations made article shall uniform insofar practicable provision statute allows president implement build ucmj framework adopting procedural regulations subject three requirements procedures military courts must conform rules insofar president considers practicable procedures may contrary inconsistent provisions ucmj insofar practicable rules regulations must uniform requirement points indicates rules must military commissions unless uniformity impracticable ante instructs even assuming first second requirements satisfied matter dispute see ante third requires us compare procedures determine extent deviations whether greater uniformity practicable ante although assume president practicability judgments entitled deference observes congress choice language uniformity provision contrasts language difference suggests least lower degree deference determinations ante rules military courts may depart rules whenever president considers conformity impracticable statute requires procedural uniformity across different military courts insofar uniformity practicable insofar president considers right conclude relevance decision also correct conclude ante term practicable construed permit deviations based mere convenience expedience practicable means feasible possible practice perform capable put practice done accomplished webster third new international dictionary congress chosen language best understood allow selection procedures based logistical constraints accommodation witnesses security proceedings like insofar retrial trial procedures military commissions issue deviate practice deviations must explained practical need addition second ucmj provision requires us compare commissions issue provision provisions chapter conferring jurisdiction upon deprive military commissions provost courts military tribunals concurrent jurisdiction respect offenders offenses statute law war may tried military commissions provost courts military tribunals congress addressed possibility special military commissions criminal courts may times convened time however president authority convene military commissions limited extends offenders offenses statute law war may tried military commissions ibid see also ante government claim base charges hamdan statute instead invokes law war law explained ex parte quirin derives rules precepts law nations body international law governing armed conflict military commission issue illegal law war offender tried law war commission correct concentrate one provision law war applicable nation armed conflict al qaeda afghanistan result use military commission try hamdan ante see also cadc williams concurring provision common article four geneva conventions prohibits relevant passing sentences carrying executions without previous judgment pronounced regularly constituted affording judicial guarantees recognized indispensable civilized peoples see article geneva convention iii relative treatment prisoners war provision part treaty ratified thus accepted binding law see act congress moreover violations common article considered war crimes punishable federal offenses committed nationals military personnel see doubt common article part law war term used dissent justice thomas argues common article nonetheless irrelevant case johnson eisentrager said obvious scheme geneva convention ights alien enemies vindicated protests intervention protecting powers signatory explains ante language eisentrager controlling even assuming eisentrager analysis bearing upon analysis broader conventions consequence rights vindicated conventions protests intervention common article nonetheless relevant question authorization common article part law war congress directed president follow establishing military commissions ante consistent view eisentrager considered merits claims procedural irregularities convention deprive military commission jurisdiction another military commission case yamashita likewise considered merits without caveat remedies convention claim alleged violation convention establish ed want authority commission proceed trial precise inquiry asked perform assuming president authority establish special military commission try hamdan commission must satisfy common article requirement regularly constituted affording judicial guarantees recognized indispensable civilized peoples terms general standard yet elaborated defined congress required compliance referring law war correctly concludes military commission comply provision common article standard regularly constituted affording judicial guarantees recognized indispensable civilized peoples supports least uniformity principle similar codified concept regularly constituted providing indispensable judicial guarantees requires consideration system justice commission established though doubt certain minimum standards applicable see ante committee red cross customary international humanitarian law explaining courts regularly constituted common article established organised accordance laws procedures already force country regular military courts system established congressional statutes acts congress confer courts jurisdiction try person subject war crimes prosecution explains moreover special military commissions convened previous armed conflicts practice recognized military commissions generally adopted structure procedure see war rebellion compilation official records union confederate armies series civil war general order requiring military commissions constituted similar manner proceedings conducted according general rules order prevent abuses might otherwise arise winthrop military law precedents rev ed ilitary commissions constituted composed proceedings conducted similarly general nations war crimes commission law reports trials war criminals reprint hereinafter law reports discussing war ii regulations requiring military commissions hav regard rules procedure evidence applicable general see also ante post thomas dissenting today moreover took effect military trials world war ii cases invoked dissent see madsen kinsella yamashita supra quirin codifies presumption uniformity least retrial trial procedures absent concrete statutory guidance historical statutory background suggests practical need must justify deviations model informs understanding military courts regularly constituted law addition whether possibility contemplated regulations midtrial procedural changes render military commission impermissibly irregular ante see also military commission order app brief petitioner hereinafter mco acceptable degree independence executive necessary render commission regularly constituted standards nation system justice suggestion executive power interfere ongoing judicial process raises concerns proceedings fairness however provide relevant benchmark subject constitutional limitations see ex parte milligan wall congress power responsibility determine necessity military courts provide jurisdiction procedures applicable guidance congress provided respect indicates level independence procedural rigor congress deemed necessary least general matter military context minimum military commission like one issue commission specially convened president try specific persons without express congressional authorization regularly constituted standards military justice system practical need explains deviations practice regard standard common article applied conformity parallels practicability standard section however limited terms matters properly characterized procedural retrial trial procedures common article permits broader consideration matters structure organization mechanisms promote tribunal insulation command influence thus combined effect two statutes discussed considerations practicability must support departures practice relevant concerns noted earlier relate logistical constraints accommodation witnesses security proceedings like mere expedience convenience determination course must made due regard constitutional principle congressional statutes controlling including congressional direction law war bearing determination principles provide framework analysis specific military commission issue ii assessing validity hamdan military commission precise circumstances case bear emphasis allegations hamdan undoubtedly serious captured afghanistan nation armed conflict taliban al qaeda conflict continues speak hamdan stands accused overt acts furtherance conspiracy commit terrorism delivering weapons ammunition al qaeda acquiring trucks use osama bin laden bodyguards providing security services bin laden receiving weapons training terrorist camp app pet cert nevertheless circumstances hamdan trial present exigency requiring special speed precluding careful consideration evidence roughly four years hamdan detained permanent military base guantanamo bay cuba regardless outcome criminal proceedings issue government claims authority continue detain based status enemy combatant background correct conclude military commission president convened try hamdan unauthorized ante following analysis expands discussion explains reasons reaching conclusion begin structure composition military commission deviate conventional standards although deviations raise questions fairness trial evident practical need explains ucmj organized convening authority either commanding officer secretary defense secretary concerned president ed supp iii convening authority refers charges trial manual rule ed hereinafter selects members vote guilt innocence accused determine sentence ed paralleling structure military commission order either secretary defense secretary designee establishes commissions subject order mco approves refers charges tried commissions appoints commission members vote conviction sentence addition appointing authority determines number commission members least three oversees chief prosecutor provides investigative resources defense insofar deems necessary full fair trial approves rejects plea agreements approves disapproves communications news media prosecution defense counsel function shared general counsel department defense issues supplementary commission regulations subject approval general counsel department defense unless appointing authority secretary defense see mco military commission instruction july hereinafter mci available www mci available www mci april available www internet materials visited june available clerk case file background significant powers appointing authority certain respects least conform ordinary standards regulations governing commissions issue make several noteworthy departures general type authorized impose penalties one year incarceration adjudicate offenses law war ed supp iii presiding officer rules legal issues must military judge supp iii see also ii likewise requiring military judge certain ed supp iii military judge officer member state federal bar specially certified judicial duties judge advocate general officer armed service protect independence military judges general assigned directly responsible judge advocate general judge advocate general designee must detailed accordance applicable regulations person assigned military judge directly responsible judge advocate general judge advocate general designee see also see generally weiss discussing provisions insulat military judges effects command influence thus preserve judicial impartiality contrast appointing authority selects presiding officer mco officer need judge advocate military lawyer appointing authority moreover exercises supervisory powers continue trial interlocutory question disposition effect termination proceedings respect charge subject decision presiding officer appointing authority stating presiding officer shall certify questions appointing authority interlocutory questions may certified appointing authority presiding officer deems appropriate ibid circumstances government may appeal certain rulings including order ruling terminates proceedings respect charge specification see also appeals go body called criminal appeals convening authority see also requiring convening authority approve disapprove findings sentence providing action entry sentence restricting actions increase penalties cf barring command influence actions criminal appeals functions military intermediate appeals established judge advocate general armed service composed appellate military judges another means structure tradition process insulated interest outcome proceedings finally addition powers respect presiding officer appointing authority greater flexibility appointing commission members general requires absent contrary election accused least five members ed supp iii appointing authority free noted earlier select three mco difference may affect deliberative process prosecution burden persuasion compared role convening authority greater powers appointing authority including even resolution dispositive issues middle trial raise concerns commission decisionmaking may neutral differences supported practical need beyond goal constant ongoing supervision need neither apparent record established government submissions answer end day detainee treatment act dta stat affords defendants opportunity judicial review federal correct observe scope review limited dta see also ante review automatic defendant sentence years ibid also provisions review legal issues trial correct structural defects role appointing authority cast doubt factfinding process presiding judge exercise discretion trial defendants may obtain judicial review furthermore must navigate military review process raises fairness concerns outset appointing authority unless appointing authority secretary defense performs administrative review undefined scope ordering supplementary proceedings deemed necessary mco case referred review panel composed officers selected secretary defense mci available though review panel may return case proceedings majority form definite firm conviction material error law occurred mco mci one member must experience judge mco nothing regulations requires panel members legal training comparison review judgments performed independent bodies judge advocate general criminal appeals appeals armed forces review process lacks structural protections designed help ensure impartiality structural differences military commissions concentration functions including legal decisionmaking single executive official less rigorous standards composition tribunal creation special review procedures place institutions created regulated congress remove safeguards important fairness proceedings independence congress prescribed guarantees evident practical need explains departures reasons commission considered regularly constituted law thus satisfy congress requirement military commissions conform law war apart structural issues moreover basic procedures commissions deviate procedures violation explains ante military commission order abandons detailed military rules evidence modeled federal rules evidence conformity requirement presumptive compliance rules instead order imposes one evidentiary rule evidence shall admitted evidence probative value reasonable person mco although true military commissions applied amorphous evidence standard past see law reports discussing world war ii military commission orders exec order fed reg order convening military commission try nazi saboteurs evidentiary rules commissions adopted congress enacted uniformity requirement part ucmj see act may ch stat flexibility may necessary permit trial battlefield captives like hamdan military statutes rules already provide introduction deposition testimony absent witnesses use classified information military rule evid indeed provision specifically mentions military commissions thus one provisions government concedes must followed commission issue see ante provision authorizes admission deposition testimony witness absent specified reasons requirement makes sense military commissions may consider probative evidence whether conflict renders rules issue contrary inconsistent ucmj creates uniformity problem rule permit admission multiple hearsay forms evidence generally prohibited grounds unreliability indeed commission regulations specifically contemplate admission unsworn written statements mco make provision exclusion coerced declarations save established made result torture mci mar available www cf military rule evid generally barring use statements obtained use coercion unlawful influence unlawful inducement besides even evidence deemed nonprobative presiding officer hamdan trial members still may view another departure practice military commission members may object presiding officer evidence rulings determine majority vote whether admit evidence mco cf providing military judge determines questions law explains government made demonstration practical need special rules procedures either particular case military commissions general ante need government regulations submissions reveal feasible conventional military evidence rules procedures followed sum presently structured hamdan military commission exceeds bounds congress placed president authority ucmj congress prescribed limits congress change requiring new analysis consistent constitution governing laws time however must apply standards congress provided standards military commission deficient iii light conclusion military commission unauthorized ucmj see need consider several issues addressed plurality opinion justice stevens dissent justice thomas first decide whether common article standard regularly constituted affording judicial guarantees recognized indispensable civilized peoples necessarily requires accused right present stages criminal trial justice stevens explains military commission order authorizes exclusion accused proceedings presiding officer determines among things protection classified information requires see ante justice stevens observes regulations create possibility conviction sentence based evidence hamdan seen heard possibility plurality correct consider troubling ante collecting cases see also oliver finding support sustaining petitioner conviction contempt upon testimony given petitioner absence dissent justice thomas points however regulations bar presiding officer admitting secret evidence deprive accused full fair trial mco see also post fairness determination moreover unambiguously subject judicial review dta see stat allowing review compliance standards procedures military commission order evidentiary proceedings hamdan trial yet commence remains seen whether suffer prejudicial exclusion reluctance furthermore reach unnecessarily question whether plurality seems conclude ante article protocol geneva conventions binding law notwithstanding earlier decision government accede protocol reasons without detracting importance right presence rely deficiencies noted opinion deficiencies relate structure procedure commission inevitably affect proceedings basis finding military commissions lack authorization fail regularly constituted common article likewise see need address validity conspiracy charge hamdan issue addressed length part justice stevens opinion part justice thomas dissent see ante post light conclusion military commissions issue unauthorized congress may choose provide guidance area congress branch better position undertake sensitive task establishing principle inconsistent national interest international justice banco nacional de cuba sabbatino finally reason express view merits limitations military commissions described elements common law war part justice stevens opinion see ante post observations join opinion exception parts salim ahmed hamdan petitioner donald rumsfeld secretary defense et al writ certiorari appeals district columbia circuit june justice scalia justice thomas justice alito join dissenting december congress enacted detainee treatment act dta unambiguously provides date justice judge shall jurisdiction consider habeas application guantanamo bay detainee notwithstanding plain directive today concludes calls statute natural reading every justice judge habeas application pending december jurisdiction hear consider render judgment conclusion patently erroneous even jurisdiction supposedly retained exercise sound equitable discretion exercised dta provides justice judge shall jurisdiction hear consider application writ habeas corpus filed behalf alien detained department defense guantanamo bay cuba stat internal division omitted provision ook effect date enactment act december date jurisdiction hear consider merits petitioner habeas application repeal jurisdiction simply ambiguous pending future cases prohibits exercise jurisdiction became effective cases last december also perfectly clear phrase justice judge includes members exercising appellate jurisdiction case hear ing consider ing application writ habeas corpus ancient unbroken line authority attests statutes ousting jurisdiction unambiguously apply cases pending effective date example bruner granted certiorari consider whether tucker act provision denying district jurisdiction suits officers barred suit employee granted certiorari congress amended tucker act adding suits provision barring jurisdiction suits officers statute narrowing jurisdiction district courts became effective case pending us made explicit reference pending cases statute reserve jurisdiction pending cases held clearly ousted jurisdiction summarizing centuries practice said rule law conferring jurisdiction repealed without reservation pending cases cases fall law adhered consistently see also landgraf usi film products opinion stevens regularly applied intervening statutes conferring ousting jurisdiction whether jurisdiction lay underlying conduct occurred suit filed venerable rule statutes ousting jurisdiction terminate jurisdiction pending cases today opinion presumption jurisdiction ante invented resolve ambiguity statutes simple recognition reality plain import statute repealing jurisdiction eliminate power consider render judgment already pending case less case yet filed without jurisdiction proceed cause jurisdiction power declare law ceases exist function remaining announcing fact dismissing cause less clear upon authority upon principle ex parte mccardle wall emphasis added alter plain meaning cases required explicit reservation pending cases statute example bruner mentioned looked whether congress made reservation pending cases justice holmes relied fact provision made exception pending litigation purported universal insurance ritchie wall relied fact jurisdictional repeal made without saving causes us bruner hallowell ritchie dta directive justice judge shall jurisdiction stat made without reservation pending cases purport universal stated earlier case remains true hen intention confine operation jurisdictional repeal cases pending easy said must presume congress meant language employed usual ordinary signification old law unconditionally repealed railroad grant claims rea much bruner line cases ante bruner rule never inflexible trump ante sorely misdescribes bruner kind lindh murphy resolving statutory ambiguity oblique negative inference contrary described bruner stated holding unqualified rule adhered consistently though bruner referred express savings clause elsewhere statute disavowed reliance oblique indicators vary plain meaning quoting ritchie length quite possible effect statute contemplated congress ut terms unambiguous may speculate probabilities intention quoting also attempts evade bruner line cases asserting application pending cases cases applied accurately viewed nonapplication another presumption presumption retroactivity certain limited circumstances ante already explained calls presumption simply acknowledgment unambiguous meaning provisions even taking says effect upon present case prospective applications statute effective upon statute effective date provision like hall take effect upon enactment presumed mean prospective effect upon enactment presumption strong overcome negative inference drawn provisions statute landgraf scalia concurring judgments nonapplication presumption retroactivity thus another way stating statute takes immediate effect pending cases though resists bruner rule cite single case history law today provision denied immediate effect pending cases absent explicit statutory reservation contrast cases granting immediate effect legion repeatedly rely plain language jurisdictional repeal inflexible trump ante requiring express reservation save pending cases see bruner supra kline burke constr hallowell gurnee patrick county sherman grinnell railroad grant supra assessors osbornes wall ex parte mccardle ritchie supra norris crocker yeaton cranch marshall discussed gwin supra king justices peace london burr eng cf national exchange bank baltimore peters disregarding plain meaning requirement explicit exception set forth foregoing cases instead favors negative inference exclusion language one statutory provision included provisions statute ante specifically appeals fact explicitly made applicable pending cases negative inference sort relies upon might clarify meaning ambiguous provision since meaning entirely clear omitted language context redundant even ambiguous application pending cases negative inference touted force numerous cases bruner line least create powerful default presumption jurisdiction ante negative inference urged particularly awkward indirect way rebutting longstanding consistent practice especially true since negative inference might drawn specification certain provisions shall apply pending cases matched negative inference opposite direction might drawn provides certain provisions shall apply pending cases reliance opinion lindh murphy utterly misplaced lindh involved two provisions antiterrorism effective death penalty act aedpa set amendments chapter federal habeas statute redefined scope collateral review federal habeas courts provision creating new chapter habeas statute specially govern federal collateral review state capital cases see latter provision explicitly rendered new chapter applicable cases pending time aedpa enactment former made specific reference pending cases lindh drew negative inference chapter explicit reference pending cases conclude chapter amendments apply pending cases essential reasoning however provisions appeared identically difficult classify retroactivity cases first noted landgraf reason congress suppose explicit statement required render amendments chapter applicable pending cases new chapter substantive well purely procedural effects next step critical step reasoning congress identical reason suppose explicit statement required apply chapter amendments pending cases provide negative inference lindh rested fact othing different intent explain ed different treatment ibid contrast ample reason different treatment provisions dta unlike aedpa amendments lindh confer new jurisdiction circuit none better worse recent cases contrasted provisions provisions retaining venerable rule latter retroactive even applied pending cases strongly indicating former typically retroactive example stated hughes aircraft ex rel schumer statute creates jurisdiction none previously existed much subject presumption retroactivity see also republic austria altmann opinion stevens kennedy dissenting gives retroactivity jurisprudence dazzling clarity asserting subsections jurisdiction manner conceivably give rise retroactivity questions precedents ante statement rises level sarcasm one considers author description governing test retroactivity jurisprudence conclusion particular rule operates comes end process judgment concerning nature extent change law degree connection operation new rule relevant past event test retroactivity leave room disagreement hard cases unlikely classify enormous variety legal changes perfect philosophical clarity however retroactivity matter judges tend instinct familiar considerations fair notice reasonable reliance settled expectations offer sound guidance landgraf opinion stevens familiar consideration reasonable reliance settled expectation aware pertaining present case rule bruner applicable stubbornly disregards utterly beyond question application pending cases without explicit specification clear alone enough explain difference treatment another obvious reason specification stave suspension clause problems raised immediately effective ouster jurisdiction brought subsection say specification immediate effectiveness subsections unlike subsection fall within bruner rule automatically deemed applicable pending cases reasonably thought essential sure replacing habeas jurisdiction subsection eliminated pending cases adequate substitute see infra considerations means prove explicit statement required render subsections applicable pending cases surely gave congress ample reason doubt application pending cases unfold naturally glibly assumes event even true subsections jurisdiction manner conceivably give rise retroactivity questions ante merely establish subsection reference pending cases wholly superfluous applied subsections subsection lindh negative inference makes sense congress perceived wisdom explicit respect immediate application two statutory provisions chose explicit one perceived need explicit enacted redundancy one short simply untrue congress concerned specifying application pending cases ante quoting lindh fact approach lindh particularly inappropriate case negative inference tend defeat purpose provisions explicitly rendered applicable pending cases provisions purport vest exclusive jurisdiction circuit consider claims raised petitioners see infra drawing negative inference la lindh supplants mechanism mechanism petitioners expeditious enough file applications challenging csrts military commissions december whatever force lindh negative inference cases surely apply defeat purpose provision negative inference drawn worst reliance legislative history dta buttress implausible reading repeatedly held reliance impermissible statutory language unambiguous nevertheless relies floor statements senate quite heavily drafting history dta begin floor statements urges statements made senators preceding passage act lend support interpretation citing excerpts floor debate support view ante immediately goes discount numerous floor statements dta sponsors flatly contradict view statements appear inserted congressional record senate debate ibid course observation even true makes difference unless one indulges fantasy senate floor speeches attended like philippics demosthenes throngs eager listeners instead delivered like demosthenes practice sessions beach alone vast emptiness whether floor statements spoken senator hears written senator reads represent views single senator event greatly exaggerates portions floor debate clearly occurred dta enactment statements senator graham sponsor bill make sense assumption pending cases least one opponent dta unmistakably expressed understanding terminate jurisdiction course discussion legislative history wholly ignores president signing statement explicitly set forth understanding dta ousted jurisdiction pending selectivity greatest vice use floor statements resolve today case statements made members congress fully aware continuing jurisdiction case issue question divisive floor statements made sides undoubtedly opportunistic crafted solely use briefs litigation see cong rec statement levin arguing reading stri federal courts jurisdiction consider pending cases including hamdan case pending urging lindh requires negative inference indulges today emphasis added reliance statements avoid appearance similar opportunism virtually identical context author today opinion written legislative history discloses frankly partisan statements meaning final effective date language statements plausibly read reflecting general agreement landgraf opinion stevens likewise handful floor statements treats authoritative reflec general agreement reflect tactic rewards pursuing ipse dixit achieved constitutionally prescribed method putting language bill majority houses vote president signs regard floor statements least shows semblance seemly shame tucking away reference reliance dta drafting history displayed prominently see ante explained elsewhere drafting history legitimate reliable indicator objective meaning statute form legislative history case presents textbook example unreliability ante trumpets fact bill considered senate included redundant language included dta passed reconfirming abolition habeas jurisdiction shall apply application action pending date enactment act cong rec earlier version bill also differed dta material respects notably provided postdecision review circuit decisions csrts military commissions ibid limited review whether status determination consistent procedures standards specified secretary defense whether use standards procedures consistent constitution laws dta ii stat say moved senators reject earlier bill action pending provision surpasses intuitive powers even greatest think house president also rejection firmly mind absurd always especially context strident partisan legislative conflict sort characterized enactment legislation language statute actually passed houses congress signed president authoritative reliable guidepost final powerful indication fact made mess statute nature consequences ensue though case concerns habeas application challenging trial military commission dta strips courts jurisdiction hear consider application writ habeas corpus filed behalf alien detained department defense guantanamo bay cuba vast majority pending petitions doubt relate military commissions commonly challenged aspects detention terms conditions confinement see rasul bush scalia dissenting solicitor general represents abeas petitions filed behalf purported guantanamo bay detainees including one seek relief behalf every guantanamo detainee already filed action respondents motion dismiss lack jurisdiction hereinafter motion dismiss interpretation transforms provision abolishing jurisdiction habeas petitions provision retains jurisdiction cases sufficiently numerous keep courts busy years come ii hold unambiguously terminates jurisdiction courts hear consider pending habeas applications must confront petitioner arguments provision interpreted violates suspension clause claim easily dispatched stated johnson eisentrager cited instance country writ known issued behalf alien enemy relevant time stage captivity within territorial jurisdiction nothing text constitution extends right anything statutes notwithstanding dicta opinion rasul clear guantanamo bay cuba outside sovereign territorial jurisdiction see scalia dissenting petitioner enemy alien detained abroad rights suspension clause even petitioner fully protected clause dta create suspension problem repeatedly acknowledged substitution collateral remedy neither inadequate ineffective test legality person detention constitute suspension writ habeas corpus swain pressley see also ins cyr congress without raising constitutional questions provide adequate substitute courts appeals petitioner made showing postdecision exclusive review circuit provided inadequate test legality trial military commission principal argument provisions inadequate foreclose review claims raises though petitioner brief parse statutory language argument evidently rests erroneously narrow reading dta ii stat provision grants circuit authority review extent constitution laws applicable whether use standards procedures reach final decision consistent constitution laws quoted text phrase standards procedures refers standards procedures specified military order referred subparagraph namely military commission order dated august successor military order dta ibid military commission order order department defense fundamental implementing order president order authorizing trials military commission order establishes commissions delineates jurisdiction provides officers provides prosecution defense counsel lays procedures pretrial trial provides posttrial military review secretary defense president short standards procedures specified order include every aspect military commissions including fact existence every respect differ petitioner claims president lacks legal authority try military commission constitute claims use standards procedures specified order consistent constitution laws dta ii stat circuit thus retains jurisdiction consider claims postdecision review government dispute dta leaves unaffected certiorari jurisdiction review circuit decisions motion dismiss thus dta merely defers jurisdiction consider petitioner claims eliminate jurisdiction constitutes neither inadequate ineffective substitute petitioner pending habeas though squarely address issue hints ominously government preferred reading rais grave questions congress authority impinge upon appellate jurisdiction particularly habeas cases ante citing ex parte yerger wall felker turpin durousseau cranch klein wall ex parte mccardle wall clear lurking questions light aptly named exceptions clause article iii making appellate jurisdiction subject exceptions regulations congress shall make explicitly permits exactly congress done doubt prior cases might created score surely chimerical case noted provisions provide substitute habeas review adequate satisfy suspension clause forbids suspension writ habeas corpus fortiori provide substitute adequate satisfy implied substantive limitations whether real imaginary upon exceptions clause authorizes exceptions iii even congress clearly constitutionally eliminated jurisdiction case neither lower courts exercise traditionally equitable principles govern exercise habeas jurisdiction granting injunctive relief sought petitioner see schlesinger councilman weinberger light congress provision alternate avenue petitioner claims equitable principles counsel abstain exercising jurisdiction case requesting abstention government relies principally councilman abstained considering serviceman claim charge marijuana possession sufficiently trigger jurisdiction military see admittedly councilman squarely control petitioner case provides closest analogue jurisprudence describes ante councilman identifie two considerations comity together favor ed abstention pending completion ongoing proceedings service personnel errs finding considerations inapplicable case third consideration emphasized councilman cut favor abstention first observes councilman rested part fact military discipline therefore efficient operation armed forces best served military justice system acts without regular interference civilian courts concludes hamdan member nation armed forces concerns military discipline apply ante true enough reason fails make inquiry whether military commission trials might involve military necessities unique military exigencies comparable gravity stake councilman put context charge respondent councilman possession sale marijuana stationed fort sill oklahoma see charge petitioner joining actively abetting murderous conspiracy slaughtered thousands innocent american civilians without warning september councilman held prosecution former charge involved military necessities counseling interference even ponder question latter charge reason blinkered study question ante hard fathom principal opinion merits makes clear believe trials military commission involve military necessity charge shortcomings indicative broader inability executive part satisfy basic precondition establishment military commissions military necessity ante quite odds views subject expressed political branches military necessity joint session congress authorized president use necessary appropriate force including military commissions nations organizations persons petitioner determines planned authorized committed aided terrorist attacks occurred september authorization use military force stat note following supp iii keeping authority president determined protect citizens effective conduct military operations prevention terrorist attacks necessary individuals subject order detained tried tried violations laws war applicable laws military tribunals military order cfr clear derives authority audacity contradict determination military necessities relating duty discipline required abstention councilman supra military necessities relating disabling deterrence punishment terrorists september require abstention seeks distinguish councilman ground tribunal convened try hamdan part integrated system military courts complete independent review panels congress established ante sure councilman emphasized congress created integrated system military courts review procedures critical element military appeals consisting civilian judges completely removed military influence persuasion gain time thorough familiarity military problems internal quotation marks omitted contrasts integrated system insulated military influence review scheme established order provides appeal review panel decision may secretary defense finally president ante even accept extraordinary assumption president lack structural insulation military influence characterizes appeals armed forces ante description review scheme anachronistic december fina review decisions military commissions conducted circuit pursuant dta provision review article iii courts creates anything review scheme insulated executive control time decided councilman congress conferred art icle iii jurisdiction directly review determinations final arbiter direct appeals military appeals appeals armed forces article whose members possessed neither life tenure salary protection constitutional protection removal provided federal judges article iii see moreover third consideration counsels strongly favor abstention case councilman reasoned considerations comity necessity respect coordinate judicial systems motivated decision younger harris inapplicable particular demands federalism implicated friction created today executive branch many times serious face concerns relies heavily ex parte quirin far abstaining pending conclusion military proceedings ongoing quirin convened special term hear case expedited review ante likely government quirin unlike preferred hasty resolution case swiftly execute sentences imposed see hamdi rumsfeld scalia dissenting reliance quirin suffers fundamental defect ignores dta creates avenue consideration petitioner claims exist time quirin collateral application habeas review vehicle available compelling reason postpone consideration quirin application termination military proceedings cognizable claims presented general challenges authority commissions affected specific proceedings see supra dta contrast congress expanded scope article iii review channeled exclusively single postverdict appeal article iii courts congress created novel unitary scheme article iii review military commissions absent quirin longer governing precedent abstain exercising equity jurisdiction government requests foregoing reasons dissent salim ahmed hamdan petitioner donald rumsfeld secretary defense et al writ certiorari appeals district columbia circuit june justice thomas justice scalia joins justice alito joins parts dissenting reasons set forth justice scalia dissent clear lacks jurisdiction entertain petitioner claims see ante concluded otherwise appropriate respond resolution merits petitioner claims opinion openly flouts duty respect executive judgment matters military operations foreign affairs evident belief qualified pass ilitary necessity ante commander chief decision employ particular form force enemies antithetical constitutional structure simply go unanswered respectfully dissent review petitioner claims arises context president wartime exercise authority conjunction complete support congress accordingly important take measure respective roles constitution assigns three branches government conduct war explained hamdi rumsfeld structural advantages attendant executive branch namely decisiveness secrecy flow executive dissenting opinion quoting federalist cooke ed hamilton led founders conclude president ha primary responsibility along necessary power protect national security conduct nation foreign relations consistent conclusion constitution vests president executive power art ii provides shall commander chief armed forces places power recognize foreign governments observed provisions confer upon president broad constitutional authority protect nation security manner deems fit see prize cases black war made invasion foreign nation president authorized bound resist force force without waiting special legislative authority fleming page acknowledging president authority employ nation armed forces manner may deem effectual harass conquer subdue enemy congress sure substantial essential role foreign affairs national security congress anticipate legislate regard every possible action president may find necessary take every possible situation might act uch failure congress areas foreign policy national security imply disapproval action taken executive dames moore regan quoting haig agee rather domains fact congress provided president broad authorities imply judicial branch infer congress intended deprive particular powers specifically enumerated see dames moore enactment legislation closely related question president authority particular case evinces legislative intent accord president broad discretion may considered invite measures independent presidential responsibility internal quotation marks omitted president acts pursuant express implied authorization congress actions strongest presumptions widest latitude judicial interpretation burden persuasion rest heavily upon might attack quoting youngstown sheet tube sawyer jackson concurring accordingly context address today concluded detention trial petitioners ordered president declared exercise powers commander chief army time war grave public danger set aside courts without clear conviction conflict constitution laws congress constitutionally enacted ex parte quirin framework president decision try hamdan military commission involvement al qaeda entitled heavy measure deference present conflict congress authorized president use necessary appropriate force nations organizations persons determines planned authorized committed aided terrorist attacks occurred september order prevent future acts international terrorism nations organizations persons authorization use military force aumf stat note following supp iii emphasis added plurality observed hamdi capture detention trial unlawful combatants agreement practice incident war hamdi see also quirin supra madsen kinsella military commission institution greatest importance period war quoting testimony crowder although concedes legitimacy president use military commissions certain circumstances ante suggests aumf bearing scope president power utilize military commissions present conflict ante instead determines scope power based exclusively article uniform code military justice ucmj successor article articles war quirin held authorized trial offenses law war military commissions shall discuss article alone supports use commissions nothing language article however suggests outlines entire reach congressional authorization military commissions conflicts quite contrary language article presupposes existence military commissions independent basis indeed consistent hamdi conclusion aumf authorizes trial unlawful combatants original sanction military commissions historically derived congressional authorization initiation war attendant authorization employment necessary proper agencies due prosecution winthrop military law precedents ed hereinafter winthrop accordingly congressional authorization military commissions pertaining instant conflict derives article ucmj also recent broader authorization contained note error respecting aumf necessary resolution case hamdan military commission plainly sustained solely article emphasize complete congressional sanction president exercise authority conduct present war circumstances previously noted duty defer executive military foreign policy judgment zenith countenance kind repeatedly engages today military foreign policy judgments undertaken directly responsible people whose welfare advance imperil decisions kind judiciary neither aptitude facilities responsibility long held belong domain political power subject judicial intrusion inquiry hamdi supra thomas dissenting quoting chicago southern air lines waterman within framework lawfulness hamdan commission examined ii plurality accurately describes aspects history military commissions prerequisites use thus dispute military commissions historically used three different situations ante situation relevant instant case use military commissions seize subject disciplinary measures enemies violated law war ante quoting quirin supra similarly agree plurality winthrop treatise sets forth four relevant considerations determining scope military commission jurisdiction considerations relating time place offense status offender nature offense charged winthrop executive easily satisfied considerations plurality contrary conclusion rests upon incomplete accounting unfaithful application considerations first two considerations military commission may assume jurisdiction offences committed within field command convening commander offenses must committed within period war see ante evidenced hamdan charging document executive determined theater present conflict includes afghanistan pakistan countries al qaeda established training camps app pet cert duration conflict dates back least usama bin laden august declaration jihad americans ibid executive description conflict every aspect charge alleges overt acts afghanistan pakistan yemen countries taking place satisfies temporal geographic prerequisites exercise military commission jurisdiction judgments pertaining scope theater duration present conflict committed solely president exercise authority see prize cases black concluding president judgment nature particular conflict question decided must governed decisions acts political department government power entrusted nevertheless plurality concludes legality charge hamdan doubtful hamdan charged overt act caught redhanded theater war agreement inception long predated relevant armed conflict ante emphasis original plurality willingness executive judgments context based upon little unsupported assertions constitutes unprecedented departure traditionally limited role courts respect war unwarranted intrusion executive authority even appropriate plurality attempt unpersuasive initial matter plurality relies upon date aumf enactment determine beginning point period war winthrop thereby suggesting petitioner commission jurisdiction try offenses committed prior aumf enactment ante suggestion betrays plurality unfamiliarity realities warfare willful blindness precedents starting point present conflict indeed conflict determined congressional enactment rather initiation hostilities see prize cases supra recognizing war may initiated invasion foreign nation initiation president response usually precedes congressional action thus congress enactment aumf mark beginning nation conflict al qaeda instead authorized president use force midst ongoing conflict moreover president war powers may activated aumf passed ante date activation never used determine scope military commission instead traditional rule ffenses committed formal declaration war declaration martial law may tried military commission green military commission hereinafter green see also howland digest opinions general army hereinafter howland military commission exercising jurisdiction laws war may take cognizance offenses committed war initiation military government martial law emphasis original cf yamashita extent power prosecute violations law war shall exercised peace declared rests courts political branch government consistent principle facts virtually identical military commission tried julius otto kuehn conspiring japanese officials betray fleet imperial japanese government prior attack pearl harbor green moreover president determination present conflict dates least supported overwhelming evidence according state department al qaeda declared war early august see dept state fact sheet usama bin ladin dept state fact sheet charges international terrorist usama bin laden cf prize cases black recognizing state war exists even declaration unilateral emphasis original february al qaeda leadership issued another statement ordering indiscriminate even laws war applied legitimate plainly illegal killing american civilians military personnel alike see jihad jews crusaders world islamic front statement alexander swetnam usama bin laden profile terrorist network app ruling kill americans allies civilians military individual duty every muslim country possible mere rhetoric even september al qaeda involved bombing world trade center new york city bombing khobar towers saudi arabia bombing embassies kenya tanzania attack cole yemen see response incidents attack ed facilities belonging usama bin ladin network early dept state fact sheet usama bin ladin based foregoing president judgment present conflict substantially predates aumf extending least far back al qaeda declaration war nation theater war extends least far localities al qaeda principal bases operations beyond judicial reproach plurality unsupportable contrary determination merely confirms judiciary neither aptitude facilities making military foreign affairs judgments hamdi thomas dissenting quoting chicago southern air lines third consideration identified winthrop treatise exercise military commission jurisdiction pertains persons triable commission see ante winthrop military commissions jurisdiction enemy army guilty illegitimate warfare offences violation laws war ante quoting winthrop also jurisdiction rregular armed bodies persons forming part organized forces belligerent likely respect laws war indeed according winthrop persons within protection laws war liable shot imprisoned banished either summarily guilt clear upon trial conviction military commission consideration easily satisfied hamdan unlawful combatant charged joining conspiring terrorist network dedicated flouting laws war supp dc app pet cert fourth consideration relevant jurisdiction military commissions relates nature offense charged relevant commissions jurisdiction try iolations laws usages war cognizable military tribunals ante quoting winthrop contrast preceding considerations precedents establish judicial review whether acts charged offense law war cognizable military tribunal appropriate quirin however charges violations law war triable military tribunal need stated precision common law indictment yamashita whether offense violation law war cognizable military commission must determined pursuant system common law applied military tribunals quirin supra yamashita supra common law war pertains offenses triable military commission derived experience wars wartime tribunals winthrop laws usages war understood practiced civilized nations world op atty moreover common law war marked two important features first common law generally flexible evolutionary nature building upon experience past taking account exigencies present thus law war like every code laws declares shall done say may done legitimate use great power war rather prohibitions upon use power increase diminish necessity case demands accordingly recognized jurisdiction war courts prescribed statute rather adapted instance need called forth madsen second common law war affords measure respect judgment military commanders thus commander army time war power organize military tribunals execute judgments set squadrons field fight battles authority case law usage war op atty recognition principles congress generally president military commanders representing employ commission occasion may require investigation punishment violations law war madsen supra quoting winthrop emphasis added one key respect plurality departs proper framework evaluating adequacy charge hamdan laws war plurality holds neither elements offense range permissible punishments defined statute treaty precedent establishing whether offense triable military commission must plain unambiguous ante pure contrivance bad one contrary presumption acknowledged quirin namely actions military commissions set aside courts without clear conviction unlawful emphasis added also contrary yamashita recognized legitimacy military commission notwithstanding substantial disagreement pertaining whether yamashita charged violation law war compare noting allegations adequat need stated precision murphy dissenting arguing charge inadequate find support separation powers authority cited plurality indeed madison praise separation powers federalist quoted ante relevance merely highlights illegitimacy today judicial intrusion onto core executive prerogatives waging war executive competence zenith judicial competence nadir plurality newly minted rule also fundamentally inconsistent nature common law definition evolves develops time cases say may done op atty similarly inconsistent nature warfare also evolves changes time flexible evolutionary system uniquely though charge hamdan easily satisfies even plurality manufactured rule see supra plurality inflexible approach dangerous implications executive ability discharge duties commander chief future cases undertake determine whether unlawful combatant charged offense law war understanding common law war flexible responsive exigencies present conflict deferential judgment military commanders either correct flexible approach evaluating adequacy hamdan charge plurality new approach hamdan charged conduct constituting two distinct violations law war cognizable military commission membership enterprise conspiracy commit war crimes charging section indictment alleges hamdan willfully knowingly joined enterprise persons shared common criminal purpose app pet cert conspired agreed al qaeda commit offenses triable military commission common law war establishes hamdan willful knowing membership al qaeda war crime chargeable military commission hamdan confirmed enemy combatant member affiliate al qaeda charged willfully knowingly joining group al qaeda whose purpose support violent attacks property nationals military civilian supp moreover allegations specify hamdan joined maintained relationship al qaeda even though believed usama bin laden associates involved attacks embassies kenya tazania august attack uss cole october attacks september app pet cert allegations confirmed unlawful combatant alone sufficient sustain jurisdiction hamdan military commission well century established unite banditti jayhawkers guerillas unauthorized marauders high offence laws war offence complete band organized joined atrocities committed band constitute offence make reasons sufficient reasons banditti denounced laws war op atty emphasis added words unlawful combatants hamdan violate law war merely joining organization al qaeda whose principal purpose killing disabling peaceable citizens soldiers winthrop see also op atty bushwhacker jayhawker bandit war rebel assassin public enemies may tried condemned executed offenders laws war conclusion unsurprising cardinal principle law war civilian population must enjoy complete immunity international committee red cross commentary geneva convention relative protection civilian persons time war pictet ed numerous instances trials laws war offenders description published general orders years winthrop accordingly basis alone allegations hamdan charge tested reasonable standard adequately allege violation law war yamashita conclusion membership organization whose purpose violate laws war offense triable military commission confirmed experience military tribunals convened nuremberg pursuant article charter international military tribunal imt convened military tribunals bring individuals trial membership group organization declared criminal imt trials war criminals nuernberg military tribunals xii hereinafter trials imt designated various components four nazi groups leadership corps gestapo sd ss criminal organizations imt trial major war criminals see also taylor anatomy nuremberg trials personal memoir member organization convicted crime membership punished crime death imt authority military tribunal nuremberg convicted numerous individuals act knowing voluntary membership organizations example military tribunal case brandt karl brandt karl gebhardt rudolf brandt joachim mrugowsky wolfram sievers viktor brack waldemar hoven convicted sentenced death crime inter alia membership organization declared criminal imt karl genzken fritz fischer sentenced life imprisonment helmut poppendick convicted offense membership criminal organization sentenced term imprisonment trials denied habeas relief executions carried landsberg prison june trials moreover government alleged hamdan member al qaeda carrying terrorist attacks civilian targets abroad also hamdan aided assisted al qaeda top leadership supplying weapons transportation services app pet cert allegations confirm hamdan triable military commission involvement al qaeda see doc numerous rebels furnish enemy arms provisions clothing horses means transportation insurgents banding together several interior counties purpose assisting enemy rob maruad lay waste country persons laws war every civilized country liable capital punishment emphasis added winthrop including list offenses triable military commissions dealing enemies furnishing money arms provisions medicines undoubtedly conclusion conduct violates law war led enactment article ucmj provides ny person aids attempts aid enemy arms ammunition supplies money things shall suffer death punishment military commission may direct separate apart offense joining contingent uncivilized combatants likely respect laws war winthrop hamdan charged conspir ing agree ing al qaida organization commit offenses triable military commission app pet cert offenses include attacking civilians attacking civilian objects murder unprivileged belligerent terrorism ibid alleges violation law war triable military commission experience wars winthrop rife evidence establishes beyond doubt conspiracy violate laws war offense cognizable military commission world war ii provides recent examples use american military commissions try offenses pertaining violations laws war conflict orders establishing jurisdiction military commissions various theaters operation provided conspiracy violate laws war cognizable offense see letter general headquarters army forces pacific record yamashita styer pp exh order respecting regulations governing trial war criminals provided participation common plan conspiracy accomplish various offenses law war cognizable military commissions nations war crimes commission law reports trials war criminals hereinafter commission recounting orders establishing world war ii military commissions pacific china included participation common plan conspiracy pertaining certain violations laws war offense triable military commission indeed orders authorized trial military commission participation conspiracy commit murder inhumane acts civilian population precisely offense hamdan charged conspiracy violate laws war charged highest profile case tried world war ii military commission see quirin numerous occasions see colepaugh looney green describing conspiracy trial julius otto kuehn support contrary conclusion ante plurality attempts evade import quirin world war ii authorities resting upon failure address sufficiency conspiracy charge quirin case ante common law war ascertained failure pass upon issue indeed even mention issue opinion rather ascertained practice usage war winthrop supra civil war experience provides support president conclusion conspiracy violate laws war offense cognizable military commissions indeed highest profile case tried military commission relating war namely trial men involved assassination president lincoln charge provided men combin ed confederat ed conspir ed kill murder president lincoln reprinted doc hereinafter addition foregoing example winthrop treatise enumerates numerous civil war military commission trials conspiracy violate law war winthrop plurality attempts explain examples away suggesting conspiracies listed winthrop best understood species compound offense namely violations law war ordinary criminal laws rather offense law war ante citing example murder violation laws war fact example conspiracy commit murder time violate ordinary criminal laws law war combination two species offenses howland establish military commission jurisdiction try crime solely basis violation law war rather anything consistent principle common law war flexible affords level deference judgments military commanders establishes military commissions discretion try offense one law war one ordinary criminal laws event plurality effort avoid import winthrop smokescreen compound offense theory ante reconciled particular charges sustained military commission jurisdiction cases winthrop cites example military commission trial henry wirtz charge provided aliciously willfully traitorously combining confederating conspiring together various named unnamed injure health destroy lives soldiers military service held prisoners war within lines confederate military prisons thereof end armies might weakened impaired violation laws customs war reprinted doc emphasis added likewise military commission trial lenger grenfel charge accused grenfel onspiring violation laws war release rebel prisoners war confined authority camp douglas near chicago reprinted doc emphasis added see also indictment military commission trial robert louden charged onspiring rebel enemies embarrass impede military authorities suppression existing rebellion burning destruction steamboats means transportation mississippi river examples provide incontrovertible support president conclusion common law war permits military commission trials conspiracy violate law war specifically contradict plurality conclusion contrary thereby easily satisfying requirement government make substantial showing crime seeks try defendant military commission acknowledged offense law war ante plurality contends reliance upon winthrop conspiracy offense cognizable military commission enough intend violate law war commit overt acts furtherance intention unless overt acts either offenses law war constitute steps sufficiently substantial qualify attempt ibid winthrop support plurality conclusion passage winthrop cited plurality jurisdiction military commission restricted cases offence consisting overt acts unlawful commissions actual attempts commit intentions merely winthrop emphasis original passage helpful plurality subject conspiracy rather jurisdiction military commission winthrop speaking requirements conspiracy charge requirements charges intentions suffice unlawful act committing crime conspiracy necessary winthrop says nothing exclude either conspiracy membership criminal enterprise go beyond intentions merely consis overt acts unlawful commissions actual attempts commit expressly recognized winthrop crimes law war triable military commissions indeed commission overt ac traditional requirement completion crime conspiracy charge hamdan alleges numerous overt acts app pet cert plurality approach unsupported winthrop requires overt act conspiracy must completed war crime distinct conspiracy merely begs question plurality sets answer namely whether conspiracy may constitute violation law war even plurality unsupported standard satisfied hamdan charged overt acts providing protection transportation weapons services enemy acts violations laws war see supra winthrop ultimately plurality determination hamdan charged offense triable military commission rests upon historical example authority upon plurality raw judgment inability executive part satisfy basic precondition establishment military commissions military necessity ante judgment starkly confirms plurality appointed ultimate arbiter quintessentially policy military judgment namely appropriate military measures take aided terrorist attacks occurred september aumf stat plurality suggestion hamdan commission illegitimate dispensing swift justice battlefield unsupportable ante even cursory review authorities confirms military commissions jurisdiction try offenses law war exigent nonexigent circumstances alike see winthrop see also yamashita military commission trial washington traditionally retributive justice heinous war crimes much military necessity demands military efficiency touted plurality swift military retribution precisely congress authorized president impose september attackers aumf today plurality hold conspiracy massacre innocent civilians violate laws war determination unsustainable judgment political branches hamdan others like must held accountable military commissions involvement membership unlawful organization dedicated inflicting massive civilian casualties supported virtually every relevant authority including authorities invoked plurality today also supported nature present conflict engaged traditional battle worldwide enemy lurks shadows conspiring reproduce atrocities september boasted sending suicide bombers civilian gatherings proudly distributed videotapes beheadings civilian workers tortured dismembered captured american soldiers according plurality armed forces capture plotting terrorist atrocities like bombing khobar towers bombing cole attacks september even plots advanced brink fulfillment military charge criminals offense laws war instead troops must catch terrorists redhanded ante midst attack order bring justice conclusion fundamentally inconsistent cardinal principal law war namely protecting sorely hamper president ability confront defeat new deadly enemy seeing plurality overturn longstanding precedents order seize jurisdiction case ante scalia dissenting seeing disregard clear prudential counsel abstain circumstances using equitable powers ante surprise see go overrule one another president judgments pertaining conduct ongoing war justices today disregard wartime decisions days ago deferred judgment corps engineers regard matter much within competence lawyers upholding agency wildly implausible conclusion storm drain tributary waters see rapanos goes without saying much stake storm drains plurality willingness determination political branches conspirators must brought justice unprecedented dangerous iii holds even government charged hamdan offense law war cognizable military commission commission lacks power proceed failure comply terms ucmj four geneva conventions signed ante position untenable jurisdiction military commissions procedure commissions prescribed statute adapted instance need called forth madsen indeed concluded absence attempts congress limit president power appears commander chief army navy may time war establish prescribe jurisdiction procedure military commissions conclusion consistent understanding military commissions war courts hould conduct compose tribunals become matter judicial determination subsequently civil courts courts give great weight opinions officers customs war case justify render necessary birkhimer nevertheless concludes least one provision ucmj amounts attempt congress limit president power conclusion contrary text structure ucmj also inconsistent precedent consistent madsen conclusion pertaining nature military commissions president discretion prescribe procedures article ucmj authorizes president establish procedures military commissions shall far considers practicable apply principles law rules evidence generally recognized trial criminal cases district courts may contrary inconsistent chapter emphasis added far constraining president authority article recognizes president prerogative depart procedures applicable criminal cases whenever alone deem procedures practicable procedural regulations promulgated executive must contrary ucmj provisions ucmj mention military commissions see ante suggestion procedures employed hamdan commission implicate provisions notwithstanding foregoing concludes article ucmj provides rules regulations made article shall uniform insofar practicable ante requires president employ rules procedures military commissions employed insofar practicable ante concludes hamdan commission unlawful president explained practicable apply rules procedures hamdan commission applied trial martial ante interpretation unconvincing initial matter fails account cases interpreting predecessor article ucmj article articles war provides crucial context bears directly proper interpretation article article articles war provided provisions articles conferring jurisdiction upon shall construed depriving military commissions provost courts military tribunals concurrent jurisdiction respect offenders offences statute law war may triable military commissions provost courts military tribunals yamashita concluded article articles war preserved president unfettered authority prescribe military commission procedure explained thus recognizing military commissions order preserve traditional jurisdiction enemy combatants unimpaired articles congress gave sanction use military commission contemplated common law war emphasis added see also quirin madsen reaching conclusion treated authoritative congressional testimony judge advocate general crowder testified article articles war enacted preserve military commission war yamashita supra recognized article preservation military commissions war courts preserved president authority establish military commissions prescribe procedure madsen explaining congress refrain ed legislating area military commission procedures contras traditional readiness prescrib particularity jurisdiction procedure cf green military commission exercising jurisdiction common law authority usually appointed superior military commander limited procedure commander like common law absence directive superior authority contrary military commission free formulate rules procedure given precedents conclusion article requires president apply rules procedures military commissions applicable unsustainable congress codified article articles war article ucmj presumed aware adopt interpretation provision preserving status military commissions inclusive president unfettered authority prescribe procedures lorillard pons conclusion article repudiates settled meaning article based upon specific textual reference military commissions rather subsection providing rules regulations made article shall uniform insofar practicable little impermissible repeal implication see branch smith repeatedly stated absent clearly expressed congressional intention repeals implication favored citation internal quotation marks omitted moreover conclusion flatly contrary duty set aside hamdan commission without clear conviction conflict laws congress constitutionally enacted quirin supra emphasis added nothing text article supports sweeping conclusion represents unprecedented congressional effort change nature military commissions war courts tribunals must presumptively function like interpretation strange indeed vision uniformity motivated adoption ucmj embodied specifically article nothing uniformity across separate branches armed services see ch stat preamble ucmj explaining ucmj act unify consolidate revise codify articles war articles government navy disciplinary laws coast guard indication ucmj intended require uniformity procedure military commissions tribunals ucmj recognizes different contrary ucmj expressly recognizes different tribunals constituted different manners employ different procedures see providing three different types general special summary constituted different manners employing different procedures thus article best understood establishing far practicable rules regulations governing tribunals convened navy must uniform rules regulations governing tribunals convened army consistent prior interpretations article century historical practice understood require president conform procedures employed military commissions employed even article construed require procedural uniformity among various tribunals contemplated ucmj hamdan entitled relief reading president entitled prescribe different rules military commissions determines practicable prescribe uniform rules resolve level deference determinations owed however view president determined impracticable apply rules ante simply case day president issued military commission order secretary defense explained president decided establish military commissions wanted option process different processes already namely federal system military system dept defense news briefing military commissions mar remarks donald rumsfeld available http visited june available clerk case file hereinafter news briefing commissions intended different resident recognized differences deal unusual situation face different approach needed ibid president reached conclusion middle war design procedure allow us pursue justice individuals time prosecuting war effectively means setting rules allow us preserve intelligence secrets develop information terrorist activities might planned future take action prevent terrorist attacks constant balancing requirements war policy importance providing justice individuals deviation standard kinds rules criminal courts motivated desire strike balance individual justice broader war policy ibid remarks douglas feith secretary defense policy emphasis added provides explanation president determination employing procedures military commissions established pursuant military commission order hamper war effort way inadequate satisfy newly minted practicability requirement contrary determination precisely kind judiciary neither aptitude facilities responsibility long held belong domain political power subject judicial intrusion inquiry chicago southern air lines waterman context present conflict exactly kind determination congress countenanced authorized president use necessary appropriate force enemies accordingly president determination sufficient satisfy practicability requirement imposed article plurality contends hamdan commission unlawful fails provide right present trial recognized supp ante applies military commissions provides members deliberate vote members may present proceedings including consultation members counsel military judge shall made part record shall presence accused defense counsel trial counsel cases military judge detailed military judge context proceedings plainly refers exclusively proceedings pertaining confirmed provision subsequent reference members cases military judge detailed also confirmed provisions refer see ny time service charges referred trial composed military judge members military judge may call session without presence members purpose hearing motions issuing rulings holding arraignments receiving pleas performing various procedural functions see also proceedings subsection shall conducted presence accused section simply address procedural requirements military commissions contends hamdan military commission also unlawful violates common article geneva conventions see ante furthermore hamdan contends commission unlawful violates various provisions third geneva convention contentions untenable initial matter appeals concluded hamdan geneva convention claims foreclosed johnson eisentrager case respondents claimed inter alia military commission lacked jurisdiction failed provide certain procedural safeguards argued required geneva conventions rejected underlying merits respondents geneva convention claims also held alternative respondents assert anything geneva convention makes immune prosecution punishment war crimes explained holding prisoners right military authorities bound respect geneva convention july stat concluded countries including german reich agreement upon treatment accorded captives prisoners claim entitled protection however obvious scheme agreement responsibility observance enforcement rights upon political military authorities rights alien enemies vindicated protests intervention protecting powers rights citizens foreign governments vindicated presidential intervention alternative holding less binding exclusive basis decision see massachusetts attempts cast eisentrager unqualified alternative holding dictum ante dispute correctness conclusion namely provisions geneva convention judicially enforceable convention contemplated diplomatic measures political military authorities exclusive mechanisms enforcement suggest geneva conventions departed framework see ante may assume obvious scheme conventions identical relevant respects convention instead concludes petitioner may seek judicial enforcement provisions geneva conventions part law war compliance law war condition upon authority set forth article granted ante citation omitted article authorizes use military commissions purport render judicially enforceable aspects law war enforceable accord see quirin enacting article congress explicitly provided far may constitutionally military tribunals shall jurisdiction try offenders offenses law war escape eisentrager holding merely observing article mentions law war indeed though eisentrager specifically consider novel interpretation article eisentrager involved challenge legality world war ii military commission like commissions found authorization article articles war predecessor article ucmj thus interpretation article foreclosed eisentrager event argument clever half judicial nonenforceability geneva conventions derives fact conventions exclusive enforcement mechanisms see eisentrager supra part law war position thus rests assumption article reference laws war selectively incorporates aspects geneva conventions finds convenient namely substantive requirements common article aspects conventions whatever reason disfavors namely conventions exclusive diplomatic enforcement scheme provides account partial incorporation geneva conventions extend far none available beyond evident preference adjudicate matters law war geneva conventions consigns exclusively political branches even correct article ucmj renders judicially enforceable aspects law war enforceable terms article simply interpreted render judicially enforceable particular provision law war issue namely common article geneva conventions relevant article provides provisions chapter conferring jurisdiction upon deprive military commissions concurrent jurisdiction respect offenders offenses statute law war may tried military commissions emphasis added thus extent article interpreted authorizing judicial enforcement aspects law war otherwise judicially enforceable authorization extends provisions law war relate whether particular offender particular offense triable military commission common article geneva conventions sole provision geneva conventions relevant holding relates neither rather relates exclusively particulars tribunal namely whether regularly constituted whether afford judicial guarantees recognized indispensable civilized peoples third geneva convention art relative treatment prisoners war addition foreclosed eisentrager hamdan claim common article geneva conventions meritless common article applies armed conflict international character occurring territory one high contracting parties pursuant authority commander chief chief executive president accept ed legal conclusion department justice common article geneva apply al qaeda detainees among reasons relevant conflicts international scope common article applies conflict international character app precedents meaning attributed treaty provisions government agencies charged negotiation enforcement entitled great weight sumitomo shoji america avagliano stuart duty defer president understanding provision issue heightened fact acting pursuant constitutional authority commander chief fact subject matter common article calls judgment nature character armed conflict see generally export president interpretation common article reasonable sustained conflict al qaeda international character sense occurring various nations around globe thus also occurring territory one high contracting parties dispute president judgments respecting nature conflict al qaeda suggest president interpretation common article implausible foreclosed text treaty indeed concedes common article principally concerned furnish ing minimal protection rebels involved civil war ante precisely type conflict president interpretation envisions subject common article instead without acknowledging duty defer president adopts admittedly plausible reading common article ambiguous treaty provision international character susceptible two plausible reasonable interpretations precedents require us defer executive interpretation even common article judicially enforceable applicable present conflict petitioner entitled relief initial matter claim petitioner common article ripe relevant acts shall remain prohibited common article passing sentences carrying executions without previous judgment pronounced regularly constituted affording judicial guarantees recognized indispensable civilized peoples art emphases added terms make clear common article violated relevant act passing sentenc thus hamdan claim military commission convicts imposes sentence accordingly hamdan claim contingent upon future events may occur anticipated indeed may occur ripe adjudication texas internal quotation marks omitted indeed even assume convicted sentenced whether trial conducted manner deprive judicial guarantees recognized indispensable civilized peoples entirely speculative premature adjudication hamdan claim especially inappropriate reaching merits dispute force us decide whether action taken one two branches federal government unconstitutional raines byrd event hamdan military commission complies requirements common article plainly regularly constituted commissions employed throughout history try unlawful combatants crimes law war recounted history follows practice dating renewed firmly established civil war military commissions become adopted authorized tribunals country time war competency recognized acts congress executive proclamations rulings courts opinions attorneys general madsen hamdan commission constituted accordance historical precedents previously explained procedures employed commission executive authority alter procedures consistent practice previous american military commissions see supra concludes hamdan commission fails satisfy requirements common article differs practice previous military commissions deviate procedures governing ante neither statutory historical requirement military commissions conform structure practice military commission different tribunal serving different function thus operates pursuant different procedures pedigree military commission sufficient establish tribunals regularly constituted art similarly procedures employed hamdan commission afford judicial guarantees recognized indispensable civilized peoples neither petitioner disputes government description procedures petitioner entitled appointed military legal counsel may retain civilian attorney done iii petitioner entitled presumption innocence proof beyond reasonable doubt right remain silent may confront witnesses may subpoena witnesses reasonably available petitioner may personally present every stage trial unless engages disruptive conduct prosecution introduces classified otherwise protected information adequate substitute available whose admission deprive full fair trial military commission order defense petitioner found guilty judgment reviewed review panel secretary defense president designate secretary final decisionmaker final judgment subject review appeals district columbia circuit ultimately see dta stat brief respondents notwithstanding provisions judgment easily satisfy nebulous standards common article plurality concludes hamdan commission unlawful possibility hamdan barred proceedings denied access evidence may used convict ante commissions rules government may impose bar denial hamdan render trial unfair question clearly within scope appellate review contemplated regulation statute moreover executive surely required offer particularized defense procedures prior application procedures make clear hamdan excluded disruption necessary protect classified classifiable intelligence dept defense military commission order including sources methods gathering intelligence government explained want make sure proceedings going middle war interfere war effort way able handle interrogations intelligence information may actually assist us promoting war aims news briefing remarks douglas feith secretary defense policy concluded context threat reveal nation intelligence gathering sources methods unarguable governmental interest compelling security nation haig easures protect secrecy government foreign intelligence operations plainly serve interests haig supra see also snepp per curiam government compelling interest protecting secrecy information important national security appearance confidentiality essential effective operation foreign intelligence service interest surely compelling according government ecause al qaeda operates clandestine force relying sleeper agents mount surprise attacks one critical fronts current war involves gathering intelligence future terrorist attacks terrorist network operates identifying operatives plans attacks directs operations communicate brief moussaoui rule possibility compelling interest protected time affording hamdan others like fair trial circumstances civilized peoples take account context military commission trials unlawful combatants war terrorism including need keep certain information secret interest preventing future attacks nation foreign installations long deprive accused fair trial accordingly president understanding requirements common article entitled great weight see supra addition common article applies conflicts international character hamdan also claims entitled protections third geneva convention applies conflicts two high contracting parties merit hamdan claim article convention provides present convention shall apply cases declared war armed conflict may arise two high contracting parties pursuant authority commander chief chief executive president determined convention inapplicable explaining none provisions geneva apply conflict al qaeda afghanistan elsewhere throughout world among reasons al qaeda high contracting party app president findings nature present conflict respect members al qaeda operating afghanistan represents core exercise authority bound respect see prize cases black reasons affirm judgment appeals salim ahmed hamdan petitioner donald rumsfeld secretary defense et al writ certiorari appeals district columbia circuit june justice alito justices scalia thomas join parts dissenting reasons set justice scalia dissent join hold lack jurisdiction merits join justice thomas dissent exception parts concern matters find unnecessary reach add following comments provide explanation reasons disagreeing holding holding understand rests following reasoning military commission lawful authorized provision permits use commission try offenders offenses statute law war may tried commission statute provides offender petitioner offense one charged may tried military commission may tried military commission trial authorized law war geneva conventions part law war common article conventions prohibits petitioner trial commission tried regularly constituted third geneva convention art relative treatment prisoners war disagree holding petitioner commission regularly constituted common article provides follows case armed conflict international character occurring territory one high contracting parties party conflict shall bound apply minimum following provisions following acts shall remain prohibited passing sentences carrying executions without previous judgment pronounced regularly constituted affording judicial guarantees recognized indispensable civilized peoples emphasis added common article thus imposes three requirements sentences may imposed regularly constituted affords judicial guarantees recognized indispensable civilized peoples see need comment extensively meaning first third requirements first requirement largely respect third note face imposes uniform international standard vary signatory signatory second element regularly constituted one relies interpret element require appointed established accordance appointing country domestic law agree see ante used common article term regularly synonymous properly term constitute means appoint set establish webster third new international dictionary therefore regularly constituted means properly appointed set established cases repeatedly use phrases regularly constituted properly constituted sense see hamdi rumsfeld plurality opinion nguyen ryder williams bruffy order determine whether properly appointed set established necessary refer body law governs matters interpret common article looking domestic law appointing country aware international law standard regarding way must appointed set established different countries different government structures handle matter differently accordingly regularly constituted appointed set established accordance domestic law appointing country ii contrast interpretation opinions supporting judgment today hold military commission petitioner tried regularly constituted evident practical need explains structure composition deviate conventional standards ante kennedy concurring part see also ante opinion contrary procedures specified use proceeding military commission impermissibly differ provided uniform code military justice ucmj use ante opinion ante kennedy concurring part believe either grounds sound see basis holding military commission regarded regularly constituted unless similar structure composition regular military unless evident practical need divergence reason differs structure composition ordinary military must viewed improperly constituted tribunals vary significantly structure composition procedures may regularly properly constituted consider example municipal state trial general jurisdiction article federal trial federal district international international criminal tribunal former yugoslavia although courts differently constituted differ substantially many respects regularly constituted common article meant require trial country military courts courts similar structure composition drafters almost certainly used language expresses thought directly provisions convention relative treatment prisoners war refer expressly ordinary military courts expressly prescribe uniformity principle justice kennedy sees common article see ante article provides prisoner war shall tried military unless existing laws detaining power expressly permit civil courts try member armed forces detaining power respect particular offence alleged committed prisoner war article risoners war may sentenced military authorities courts detaining power penalties except provided respect members armed forces said power committed acts similarly article geneva convention relative treatment civilian persons time war provision looks guidance interpreting common article see ante expressly provides civilians charged committing crimes occupied territory may handed occupying power properly constituted military courts condition said courts sit occupied country common article meant incorporate uniformity principle presumably used language like employed provisions noted reasons agree conclusion military commission issue regularly constituted structure composition differ contrary suggestion see ante commentary article fourth geneva convention undermine conclusion noted article permits occupying power try civilians properly constituted military courts commentary provision courts constituted wording definitely excludes special tribunals ordinary military courts occupying power competent comm red cross commentary geneva convention relative protection civilian persons time war hereinafter gciv commentary commentary defines regularly constituted tribunals include military courts exclud special tribunals ante alteration original much clear commentary yet mere statement military regularly constituted tribunal help addressing petitioner claim commission tribunal commentary mention special tribunals doubtful whether take gloss article forbids occupying power trying civilians courts set specially purpose tell us much different context addressed common article even common article recognizes prohibition special tribunals prohibition cover petitioner tribunal special means anything contradistinction regular sense special relating single thing regular uniform course practice occurrence webster third new international dictionary insofar respondents propose conduct tribunals according procedures military commission order orders promulgated thereunder nobody suggested respondents intend otherwise seems petitioner tribunal like hundreds others respondents propose conduct much regular special also disagree conclusion petitioner military commission illegal ante procedures allegedly comply even unlike common article impose least limited uniformity requirement amongst tribunals contemplated ucmj see ante thomas dissenting even assumed sake argument procedures specified military commission order impermissibly deviate procedures follow military commissions created order regularly constituted trying petitioner commission inconsistent law war congress enacted statute requiring federal district courts follow procedure unconstitutional statute invalid district courts likewise procedures may used military commission proceedings improper appropriate remedy proscribe use particular procedures outlaw commissions see justification striking entire commission structure simply possible petitioner trial might involve use procedure improper iii returning three elements common article appointed set established compliance domestic law respects universally recognized fundamental rights conclude elements satisfied case first commissions qualify courts second commissions appointed set established pursuant order president like commission ex parte quirin acknowledges quirin recognized statutory predecessor preserved president power convene military commissions ante although justice kennedy concludes acceptable degree independence executive necessary render commission constituted standards nation system justice ante offers support proposition event seems fairness integrity regularity commission quirin certainly independent executive commissions issue speak finally commission procedures taken whole including availability review appeals provide basis deeming commissions illegitimate questions following two procedural rules rule allowing secretary defense change governing rules time rule changes see ante opinion ante kennedy concurring part rule permits admission evidence value reasonable departs legal system usual rules evidence see ante opinion ante kennedy concurring part neither two rules undermines legitimacy commissions surely entire commission structure stricken merely possible governing rules might changed course one proceedings change made applied course ongoing proceeding accused found guilty validity procedure considered review proceeding case every midtrial change prejudicial midtrial change might amend governing rules way inconsequential actually favorable accused standard admission evidence commission proceedings suggest rule violates international standard incorporated common article judicial guarantees recognized indispensable civilized peoples rules evidence differ country country much world follow aspects evidence rules general prohibition admission hearsay see blumenthal shedding light calls hearsay reform civil law hearsay rules historical modern perspective pace rev particular accused claims unfairly prejudiced admission particular evidence claim reviewed review proceeding case makes sense strike entire commission structure based speculation evidence might improperly admitted future case sum believe common article satisfied military commissions qualify courts appointed established accordance domestic law procedural improprieties might occur particular cases reviewed cases commentary common article supports interpretation commentary common article entirety lthough sentences executions without proper trial common practice quite recently nevertheless shocking civilized mind sentences executions without previous trial open error justice may effective account fear arouses adds many innocent victims innocent victims conflict civilized nations surround administration justice safeguards aimed eliminating possibility judicial errors convention rightly proclaimed essential even time war must clear one point justice intended prohibit sort immunity given anyone provision nothing prevent person presumed guilty arrested placed position harm leaves intact right state prosecute sentence punish according law gciv commentary emphasis added seems clear commissions issue meet standard whatever else may said system created military commission order augmented detainee treatment act stat system features formal trial procedures multiple levels administrative review opportunity review appeals dispense summary justice reasons respectfully dissent footnotes enemy combatant defined military order individual part supporting taliban al qaeda forces associated forces engaged hostilities coalition partners memorandum deputy secretary defense paul wolfowitz order establishing combatant status review tribunal jul available http internet materials visited june available clerk case file military order referenced section discussed parts iii vi infra penultimate subsections emphasize provision confer constitutional right alien detained enemy combatant outside purposes include guantanamo bay enacted much act approved february entitled act amend act establish judicial courts approved september authorized appeal judgment circuit exercise jurisdiction said appeals may hereafter taken hereby repealed see hughes aircraft ex rel schumer fact courts often apply newly enacted statutes pending cases merely evidences certain limited circumstances failing meet conditions generally applicable presumption retroactivity cf hughes aircraft statutes merely addressing shall jurisdiction entertain particular cause action fairly said merely regulate secondary conduct litigation underlying primary conduct parties emphasis original insistence contrary justice scalia reads much bruner hallowell commons insurance ritchie wall see post dissenting opinion none cases says absence express provision reserving jurisdiction pending cases trumps renders irrelevant indications congressional intent indeed bruner relied negative inference drawn statutory text cf infra support conclusion jurisdiction available observed congress put notice prior lower cases addressing tucker act specifically reserve jurisdiction pending cases see contrast congressional silence concerning reservation jurisdiction reservation made rights liabilities existing effective date act repealed another provision act question lindh whether new limitations availability habeas relief imposed antiterrorism effective death penalty act aedpa stat applied habeas actions pending date aedpa enactment held outset rejected state argument absence clear congressional statement contrary procedural rule must apply pending cases paragraph along paragraphs take effect date enactment dta stat dispositive statute become effective certain date even arguably suggest application conduct occurred earlier date ins cyr quoting landgraf usi film products certainly effective date provision bear weight justice scalia place see post congress deemed provision insufficient standing alone render subsections applicable pending cases hence adoption subsection justice scalia seeks avoid reducing subsection mere redundancy consequence seems acknowledge must otherwise follow interpretation speculating congress special reasons also relevant subsection worry subsections ruled inapplicable pending cases explain infra attempt fails note statements made senators preceding passage act lend support text dta drafting history already make plain senator levin one sponsors final bill objected earlier versions act effective date provision made subsection applicable pending cases see cong rec amendment proposed graham rendered subsection applicable application action pending date enactment act senator levin urged adoption alternative amendment apply new habeas cases filed date enactment alternative amendment became text subsection light extensive discussion dta effect pending cases prior passage act see said changes subsection inconsequential cf post scalia dissenting statements attributed final bill two sponsors senators graham kyl arguably contradict senator levin contention final version act preserved jurisdiction pending habeas cases see cong rec statements appear inserted congressional record senate debate see reply brief petitioner see also cong rec statement kyl like say words national defense authorization act fiscal year emphasis added statements made debate support senator levin understanding final text dta render subsection applicable pending cases see statements justice scalia cites evidence contrary construe subsection strip jurisdiction see post dissenting opinion quoting cong rec statement specter construction government expressly disavowed litigation see infra inapposite november statement senator graham justice scalia cites evidence senator assumption pending cases covered post citing cong rec follows directly uncontradicted statement senator levin assuring members senate amendment strip courts jurisdiction pending cases district columbia circuit jurisdiction exclusive one sense bar review appeal decision dta see reply brief support respondents motion dismiss dta expressly call review district columbia circuit decisions section remove jurisdiction decisions assertion highly questionable cases justice scalia cites support distinction republic austria altmann hughes aircraft ex rel schumer see post cases recognized statutes creating jurisdiction may retroactive effect affect substantive rights see altmann rehnquist dissenting construing aedpa amendments ousting jurisdiction see landgraf observing great majority decisions relying upon antiretroactivity presumption involved intervening statutes burdening private parties though applied presumption cases involving new monetary obligations fell government emphasis added see also altmann kennedy dissenting explaining retroactivity concerns arise new monetary obligation imposed congress virtue authoring legislation fully capable protecting federal government rights degraded retroactive laws may habeas cases pending lower courts time dta enacted qualify challenges final decision within meaning subsection express view whether dta require transfer action district columbia circuit conclude strip federal courts jurisdiction cases pending date dta enactment decide whether otherwise nonetheless retain jurisdiction hear hamdan appeal cf supra decide manner canon constitutional avoidance affect subsequent interpretation dta see cyr construction statute entirely preclude review pure question law give rise substantial constitutional questions councilman distinguished service personnel civilians whose challenges ongoing military proceedings cognizable federal see ex rel toth quarles explained councilman abstention appropriate cases individuals raise arguments denying right military try legal challenge turn status persons military asserted power words apply councilman abstention substantial question whether military tribunal personal jurisdiction defendant conclude abstention inappropriate basic reason need consider whether jurisdictional exception recognized councilman applies see also noyd accepted principles comity stay hand relief petitioner seeks also available reasonable promptness certainty machinery military judicial system processing charge chooses president may delegate ultimate decisionmaking authority secretary defense see justice scalia chides us failing include district columbia circuit review powers dta description review mechanism erected commission order see post whether limited review permitted dta may treated akin plenary review exercised appeals armed forces petitioner afforded right review see infra stat correctly declined abstain addressing hamdan challenge lawfulness military commission convened try appeals suggested councilman abstention nonetheless applied bar consideration one hamdan arguments namely commission violated article third geneva convention see part vi infra although appeals rejected article argument merits also stated challenge jurisdictional fall within exception schlesinger councilman recognized defendants raise substantial arguments military tribunal lacks personal jurisdiction see reaching conclusion appeals conflated two distinct inquiries whether hamdan raised substantial argument military commission lacks authority try fundamentally whether comity considerations underlying councilman apply trigger abstention principle first place appeals acknowledged beginning opinion first question warrants consideration answer second yes see since appeals properly concluded answer second question fact need consider exception rate appears exception apply discussed part vi infra hamdan raises substantial argument military commission convened try constituted geneva conventions ultra vires thus lacks jurisdiction brief petitioner see also winthrop general provisions constitution empower congress war armies authorizing initiation war authorize employment necessary proper agencies due prosecution tribunal derives original sanction emphasis original article first adopted part articles war see act ch art stat articles war codified ucmj congress determined retain article construed ex parte quirin whether president independent power absent congressional authorization convene military commissions may disregard limitations congress proper exercise war powers placed powers see youngstown sheet tube sawyer jackson concurring government argue otherwise point noteworthy ex parte quirin looked beyond congress declaration war accompanying authorization use force world war ii relied instead article war find congress authorized use military commissions circumstances see justice thomas assertion commit error reading article ucmj place limitations upon president use military commissions see post dissenting opinion ignores reasoning quirin justification limitations commissions summarized milligan foreign invasion civil war courts actually closed impossible administer criminal justice according law theatre active military operations war really prevails necessity furnish substitute civil authority thus overthrown preserve safety army society power left military allowed govern martial rule laws free course necessity creates rule limits duration government continued courts reinstated gross usurpation power martial rule never exist courts open proper unobstructed exercise jurisdiction also confined locality actual war emphases original limitations occupied territory military government commissions tailored tribunals purpose exigencies necessitate use may employed pending establishment civil government madsen may cases extend beyond cessation hostilities much may evident cold review civil war trials often cited precedent kind tribunal commissions established conflict operated martial law military government tribunals commissions hence military commanders began practice civil war using name rules often tribunals try ordinary crimes war crimes bickers tex tech first time accused horse thieves alleged saboteurs found subject trial military commission civil war precedents must therefore considered caution recognized quirin discussed commissions convened time war neither martial law military government may try offenses law war commission established pursuant martial law military government jurisdiction extends offenses committed within exercise military government martial law winthrop winthrop adds fifth albeit criterion trial must within theatre war held elsewhere civil courts open available proceedings sentence coram non judice government assert guantanamo bay theater war instead suggests neither washington philippines qualified war zone either brief respondents cf quirin yamashita elements conspiracy charge defined congress president see military commission instruction cfr justice thomas treat osama bin laden declaration jihad americans inception war see post dissenting opinion even government go far although time prior attacks september aggressively pursuing al qaeda neither charging document submissions government asserted president war powers activated prior september cf brief respondents describing events september act war triggered right deploy military forces abroad defend combating al qaeda justice thomas argument aumf backward looking therefore authorizes trial military commission crimes occurred prior inception war insupportable see post nothing else article ucmj requires president comply law war use military commissions explained text law war permits trial offenses committed within period war winthrop see also quirin observing military commissions may used try enemies attempt thwart impede military effort violated law war emphasis added sources justice thomas relies suggest otherwise simply support position colonel green short exegesis military commissions cites howland proposition ffenses committed formal declaration war declaration martial law may tried military commission military commission emphases added cited post assuming true nothing analysis turns admitted absence either formal declaration war declaration martial law focus instead september attacks government characterizes relevant act war measure authorized president deployment military force aumf question government position war commenced events september prize cases black cited post thomas dissenting germane analysis finally justice thomas assertion julius otto kuehn trial military commission conspiring japanese officials betray fleet imperial japanese government prior attack pearl harbor stands authoritative precedent hamdan trial commission post misses mark three critical respects first kuehn tried federal espionage crimes violations law war see hearings joint committee investigation pearl harbor attack pt pp second tried martial law commission kind commission justice thomas acknowledges relevant analysis whose jurisdiction extends offenses committed within exercise martial law winthrop see supra commission established exclusively try violations law war see ibid third martial law commissions established try crimes hawaii ultimately declared illegal see duncan kahanamoku phrase law employed hawaiian organic act intended authorize military act vigorously maintenance orderly civil government defense islands actual threatened rebellion invasion intended authorize supplanting courts military tribunals justice thomas adopts remarkable view advocated government charging document case actually includes one charge conspiracy several crimes like joining organization criminal purpose eing guerilla aiding enemy see post innumerable problems approach first crimes justice thomas identifies actually charged one thing observe charges military commission stated precision common law indictment post citation omitted quite another say crime charged may nonetheless read indictment second government plainly available tools time needed charge petitioner various crimes justice thomas refers believed supported allegations justice thomas observes see post crime aiding enemy may circumstances accused owes allegiance party whose enemy alleged aided triable military commission pursuant article ucmj indeed government charged detainees provision seen fit see brief david hicks amicus curiae third cases justice thomas relies show hamdan may guilty violations law war actually charged support argument justice thomas begins blurring distinction categories offender may tried military commission jayhawkers like offenses may tried even comes guerilla cf post citation omitted label alone render person susceptible execution criminal punishment charge invariably accompanied allegation defendant explained judge advocate general holt decision upholding charge one recognized universal usage times charge simply shorthand akin spy perpetration succession similar acts violence record books judge advocate general office sources cited justice thomas confirm much see cases cited post likewise suggestion nuremberg precedents support hamdan conviction uncharged crime joining criminal organization must fail cf post convictions certain nazi officials membership criminal organization secured pursuant specific provisions charter international military tribunal permitted indictment individual organization members following convictions organizations see arts trial major war criminals international military tribunal initial plan use organizations convictions predicates mass individual trials ultimately abandoned see taylor anatomy nuremberg trials personal memoir cf making triable military commission crime aiding enemy spying war crimes act ed supp iii listing war crimes foreign operations export financing related appropriations act stat common law necessarily evolutionary nature post thomas dissenting even jurisdictions common law crimes still part penal framework act become crime without foundations firmly established precedent see rimmington house lords degree vagueness inevitable development law recognised feature common law courts function courts must remain within reasonable limits see also rogers tennessee scalia dissenting caution must exercised incremental development crimes judiciary reasons explained text critical reviewing developments stem military action trial lincoln conspirators even properly classified trial commission cf rehnquist laws one civil liberties wartime analyzing conspiracy charges light ordinary criminal law principles time best equivocal exception although charge defendants case accused combining confederating conspiring together murder president also charged read indictment cf post thomas dissenting maliciously unlawfully traitorously murdering said abraham lincoln doc moreover attorney general wrote opinion defending trial military commission treated charge alleged substantive offense assassination see op atty analyzing propriety trying military commission offence assassinated president see also mudd caldera supp dc contrast geneva conventions extend liability substantive war crimes orde commission see third geneva convention art read fourth hague convention impose command responsibility military commanders acts subordinates see yamshita examples justice thomas offers availing civil war indictment robert louden cited post alleged conspiracy one violation law war see war general martial order separate charge ransgression laws customs made mention conspiracy charge lenger grenfel others conspiring release rebel prisoners held chicago supports observation made text civil war tribunals often charged hybrid crimes mixing elements crimes ordinarily triable civilian courts like treason violations law war judge advocate general holt recommending grenfel death sentence upheld fact commuted presidential decree see doc explained accused traitors malefactors overthrow republic interest slavery quirin assume acts regarded countries writers international law offenses law war triable military tribunal either recognized courts violations law war class offenses constitutionally triable jury need test validity assumption international sources corroborate domestic ones accordingly tribunal determined disregard charges defendants conspired commit war crimes crimes humanity trial major war criminals international military tribunal see also ibid charter define separate crime conspiracy except one commit acts aggressive war see also nations war crimes commissions law reports trials war criminals observing although individuals charged conspiracy european domestic criminal codes following world war ii military tribunals established time recognis separate offence conspiracy commit war crimes crimes humanity international criminal tribunal former yugoslavia icty drawing nuremberg precedents adopted joint criminal enterprise theory liability species liability substantive offense akin aiding abetting crime see prosecutor tadiæ judgment case icty app chamber july see also prosecutor milutinoviæ decision dragoljub ojdaniæ motion challenging jurisdiction joint criminal enterprise case icty app chamber may stating riminal liability pursuant joint criminal enterprise liability conspiring commit crimes justice thomas suggestion conclusion precludes government bringing justice conspire commit acts terrorism therefore wide mark see post conspiracy violation law war triable military commission mean government may example prosecute federal caught plotting terrorist atrocities like bombing khobar towers post accused also may excluded proceedings engages disruptive conduct district observed section apparently permits reception testimony confidential informant circumstances hamdan permitted hear testimony see witness face learn name government information developed interrogation witnesses afghanistan elsewhere offer evidence transcript form even summaries transcripts supp dc decision commission final president renders see commission order see winthrop military commissions constituted composed proceedings conducted similarly general testimony crowder classes courts procedure see also coppée field manual military commissions appointed authorities may order constituted manner similar courts proceedings conducted exactly way form examination witnesses dissenters views summarized following passage outside basic scheme condemn men without giving reasonable opportunity preparing defense capital serious crimes convict documents affidavits documents translations thereof diaries photographs motion picture films newspapers hearsay twice thrice removed particularly documentary evidence prepared ex parte prosecuting authority includes opinion conclusions guilt cases deny rights confrontation witnesses yamashita footnotes omitted article ucmj reads following persons subject ucmj prisoners war custody armed forces subject treaty agreement may party accepted rule international law persons within area leased otherwise reserved acquired use control secretary concerned outside outside commonwealth puerto rico guam virgin islands guantanamo bay leased area see rasul bush international committee red cross referred name several provisions geneva conventions body drafted published official commentary conventions though binding law commentary parties recognize relevant interpreting conventions provisions aside articles discussed length text seven articles expressly reference military commissions requiring appointment reporters interpreters making crime refuse appear testify military commission inquiry military board allowing provost military commission punish person contempt permitting admission evidence duly authenticated deposition taken upon reasonable notice parties admissible rules evidence witness otherwise unavailable permitting admission evidence records courts inquiry otherwise admissible rules evidence certain requirements met providing person accused aiding enemy may sentenced death punishment military commission mandating death penalty spies convicted military commission justice thomas relies legislative history ucmj argue congress adoption article wake world war ii motivated solely desire uniformity across separate branches armed services post even congress concerned ensuring uniformity across service branches mean also intend codify longstanding practice procedural parity military tribunals indeed suggestion congress intend uniformity across tribunal types belied textual proximity subsection requires rules governing criminal trials federal district courts apply absent president determination impracticability provost courts military commissions alike subsection imposes uniformity requirement may assume determination entitled measure deference reasons given justice kennedy see post opinion concurring part however level deference accorded determination made subsection ably high accorded determination subsection justice thomas looks president official article determination instead press statements made secretary defense secretary defense policy see post dissenting opinion heretofore evaluating legality executive action deferred comments made officials media moreover additional reason comments provide aside general danger posed international terrorism departures procedures need protect classified information explain text justice kennedy elaborates separate opinion structural procedural defects hamdan commission extend far beyond rules preventing access classified information justice thomas relies extensively madsen proposition president free rein set procedures govern military commissions see post reliance misplaced madsen involve military commission petitioner challenge procedures used try ucmj new article become effective may petitioner trial see procedures used try petitioner actually afforded protection used see see also military government courts germany less military character prior enactment article may well case deviation rules governing rendered military commission post thomas dissenting quoting winthrop article however imposes statutory command must heeded justice thomas makes different argument hamdan geneva convention challenge yet ripe yet sentenced see post really species abstention argument already rejected see part iii supra text geneva conventions direct accused wait sentence imposed challenge legality tribunal try explained part supra longer true conventions see comm red cross commentary geneva convention relative protection civilian persons time war hereinafter gciv commentary geneva conventions written first foremost protect individuals serve state interests gciii commentary conventions existence conferred prisoners war affirmed see generally brief louis henkin et al amici curiae comm red cross commentary geneva convention amelioration condition wounded sick armed forces field possible parties convention rules convention evoked appropriate national protected person suffered violation gcii commentary gciv commentary convenience sake use citations third geneva convention president stated conflict taliban conflict geneva conventions apply see white house memorandum humane treatment taliban al qaeda detainees available http hereinafter white house memorandum hamdan observes article third geneva convention requires doubt whether entitled protections must afforded protections status determined competent tribunal see also headquarters depts army navy air force marine corps army regulation enemy prisoners war retained personnel civilian internees detainees app hold hamdan may event tried military commission president convened pursuant november order commission order question whether potential status prisoner war independently renders illegal trial military commission may reserved term party broadest possible meaning party need neither signatory convention even represent legal entity capable undertaking international obligations gciii commentary see also gciii commentary common article merit simple clear observance depend upon preliminary discussions nature conflict gciv commentary obody enemy hands outside law army judge advocate general legal center school dept army law war handbook common article serves yardstick protection conflicts internal armed quoting nicaragua prosecutor tadiæ case decision defence motion interlocutory appeal jurisdiction icty app chamber stating character conflict irrelevant deciding whether common article applies commentary assumption terms properly constituted regularly constituted interchangeable beyond reproach french version article equally authoritative uses term régulièrement constitués place properly constituted evidence tribunal irregular constitution fact rules procedures subject change midtrial whim executive see commission order providing secretary defense may change governing rules time time international instruments signatory include basic protections set forth article see international covenant civil political rights art mar setting forth right accused tried presence defend person legal assistance choosing following world war ii several defendants tried convicted military commission violations law war failure afford captives fair trials imposition execution sentence two trials prosecutors argued defendants failure apprise accused individuals evidence constituted violations law war see war crimes commission trial shigeru ohashi trial general tanaka hisakasu government offers defense procedures observe defendant may barred access evidence action deprive full fair trial commission order government suggests circumstances fair convict accused based evidence seen heard cf crawford washington rule common law founded natural justice man shall prejudiced evidence liberty cross quoting state webb super eq per curiam diaz describing right present scarcely less important accused right trial lewis exclusion defendant part proceedings contrary dictates humanity internal quotation marks omitted joint refugee comm mcgrath frankfurter concurring plea evidence guilt must secret abhorrent free men internal quotation marks omitted fundamentally legality tribunal common article established bare assurances whatever character procedures follows individual adjudicators act fairly footnotes apparently believes provision means nothing paragraph along paragraphs effect date enactment dta stat dispositive says ante authority conclusion quote ins cyr effect statement statute become effective certain date even arguably suggest application conduct occurred earlier date ante emphasis added internal quotation marks omitted quote merely restates obvious provision render statute applicable conduct occurred earlier date course renders statute applicable conduct occurs effective date future dates exercise jurisdiction seems suggest provision authorize retroactive application also fails authorize prospective application thus useless verbiage true comparison lindh murphy shows true subsections resemble provisions aedpa issue lindh whose retroactivity applied pending cases lindh majority rule upon see emphasis added see also johnson eisentrager thus contrary suggestion ante subsections confer new jurisdiction impose judicial oversight traditionally unreviewable exercise military authority commander chief arguably spea power particular substantive rights well hughes aircraft ex rel shumer namely unreviewable powers president recent cases reiterated executive protected presumption retroactivity comparatively trivial contexts suits tax refunds increased pay see landgraf usi film products described outrageous claims exercise regime reading materials americans highly offended know terrorists suing us courts read cong rec instead unlimited habeas corpus opportunities constitution give every enemy combatant chance go federal circuit appeals district columbia deal amendment allows every detainee control day allowed appeal convictions see also rejecting notion enemy combatant terrorist member able access federal courts habeas like american citizen earlier part amendment provides justice judge shall jurisdiction consider application writ habeas corpus language exclusive jurisdiction dc circuit jurisdiction hear hamdan case statement specter executive branch shall construe section preclude federal courts exercising subject matter jurisdiction existing future action including applications writs habeas corpus described section president statement signing department defense emergency mental appropriations address hurricanes gulf mexico pandemic influenza act available http asserts said changes subsection inconsequential ante sole evidence floor statements selectively cites petitioner also urges subject indefinite delay military officials president deliberately dilatory reviewing decision commission reviewing constitutionality legislation generally presume executive implement provisions good faith unclear event delay inflict injury petitioner adverse determination csrt see supp dc already subject indefinite detention decision hamdi rumsfeld moreover mere possibility delay render alternative remedy inadequate ineffective test legality military commission trial swain pressley analogous context discounted notion postponement relief postconviction review inflicted cognizable injury serviceman charged military schlesinger councilman see also younger harris purpose article ii creation civilian commander chief president generate structural insulation military influence see federalist hamilton live military junta disservice armed forces president suggest president subject undue control military rejecting analysis observes appeals circuit subsection discretionary rather right military commission imposes sentence less years imprisonment see ante stat relevance observation abstention question unfathomable fact article iii review discretionary mean lacks structural insulation military influence ante discretionary nature presents obstacle courts future review cases might cogently relied discretionary nature review argue statute provides inadequate substitute habeas review suspension clause see supra argument force even appeals circuit discretionary exercise habeas jurisdiction traditionally entirely matter equitable discretion see withrow williams scalia concurring part dissenting part fact habeas jurisdiction replaced discretionary appellate review render substitution inadequate swain footnotes previously noted article articles war predecessor article ucmj article provides follows provisions chapter conferring jurisdiction upon deprive military commissions provost courts military tribunals concurrent jurisdiction respect offenders offenses statute law war may tried military commissions provost courts military tribunals although president well may inherent authority try unlawful combatants violations law war military commissions need decide question congress authorized president cf hamdi rumsfeld thomas dissenting conclusion respecting detention unlawful combatants even formal declaration war generally determinative act ascertaining temporal reach jurisdiction military commission aumf inconsistent plurality suggestion rule appropriate case see ante text aumf backward looking authorizing use necessary appropriate force nations organizations persons determines planned authorized committed aided terrorist attacks occurred september thus president decision try hamdan military commission use force authorized aumf hamdan involvement al qaeda prior september fits comfortably within framework aumf fact bringing september conspirators justice primary point aumf contrast plurality logic aumf grant president authority try usama bin laden involvement events september plurality suggests authorities inapplicable nothing analysis turns admitted absence either formal declaration war declaration martial law focus instead aumf ante difference identified plurality purely semantic green howland confirm date enactment establishes legal basis forming military commissions whether declaration war declaration martial law authorization use military force limit jurisdiction military commissions offenses committed date plurality attempts evade import historical example observing kuehn tried martial law commission violation federal espionage statutes ibid initial matter fact kuehn tried martial law commission offense committed prior establishment martial law provides strong support president contention may try hamdan offenses committed prior enactment aumf aumf serves function declaration martial law hawaii establishing legal authority constitution military commissions moreover kuehn tried punished statute laws usages war bernard julius otto kuehn board review office military governor hawaii indeed upholding imposition death penalty sentence authorized espionage statutes kuehn board review explained fact persons may tried punished military commission committing acts defined offenses federal statutes mean persons tried violations statutes instead tried acts made offenses orders commanding general lastly import example undermined duncan kahanamoku question case involved whether loyal civilians loyal territory daily conduct governed military orders involve power military exercise jurisdiction enemy belligerents indeed respecting present conflict president found war terrorism ushers new paradigm one groups broad international reach commit horrific acts innocent civilians sometimes direct support nation recognizes new paradigm ushered us terrorists requires new thinking law war app approach president ability address new paradigm inflicting death mayhem completely frozen rules developed context conventional warfare true separate offenses charged single heading entitled charge conspiracy app pet cert mean must treated single crime law war treats separate crimes acknowledged yamashita charges violations law war triable military tribunal need stated precision common law indictment cf birkhimer military government martial law ed hereinafter birkhimer extremely absurd expect precision charge brought required support conviction justice peace internal quotation marks omitted nevertheless plurality contends hamdan actually charged ante emphasis deleted member war criminal organization position demonstrably wrong hamdan charging document expressly charges willfully knowingly joined enterprise persons shared common criminal purpose app pet cert moreover plurality contention may look label affixed charge determine charging document alleges offense triable military commission flatly inconsistent treatment civil war cases accepts valid charges appear heading title charging document even listed charge supporting specification see ante discussing military commission trial wirz example wirz case wirz charged conspiring violate laws war charge supported allegations personally committed number atrocities plurality concludes military commission jurisdiction appropriate case based upon charge conspiracy rather based upon allegations various atrocities specification separately charged ante atrocities separately charged independent violations law war supporting wirz trial military commission hamdan membership al qaeda provision various forms assistance al qaeda top leadership independent violations law war supporting trial military commission observations respecting law war made attorney general defense military commission trial lincoln conspirators foregoing quoted portion opinion makes clear attorney general maintains trea charge alleged substantive offense assassination ante rather explained conspirators high offence laws war complete band organized joined depend upon atrocities committed band op atty moreover attorney general conclusions specifically refute plurality unsupported suggestion blurred line categories may tried military commission may tried ante general orders establishing jurisdiction military commissions civil war provided offenses violations laws war cognizable military commissions see doc ersons charged violation laws war spies marauders held trial charges numerous rebels furnish enemy arms provisions clothing horses means transportation insurgents banding together several interior counties purpose assisting enemy rob maraud lay waste country persons laws war every civilized country liable capital punishment emphasis added numerous trials held authority see war general order hereinafter indictment military commission trial james harvey wells charged eing guerrilla specified willfully took arms guerrilla marauder join belong act guerrillas dept kentucky indictment military commission trial henry magruder charged eing guerrilla specified unlawfully wrong took arms guerrilla marauder join belong act band guerrillas indictment military commission trial john west wilson charged wilson take arms insurgent guerrilla laws authorities join armed band insurgents guerrillas engaged plundering property peaceable citizens violation laws customs war indictment military commission trial simeon kight charged defendant guerrilla engaged unwarrantable barbarous system warfare citizens soldiers pp indictment military commission trial francis norvel charged eing guerrilla specified unlawfully wrong took arms outlaw guerrilla bushwhacker lawfully constituted authorities government indictment military commission trial james powell charged ransgression laws customs war specified took arms insurrection military insurgent join arms consort rebel enemy leader band insurgents armed rebels indictment military commission trial joseph overstreet charged eing guerrilla specified join belong consort band guerrillas insurgents outlaws public robbers even plurality correct membership offense must accompanied allegations defendant arms ante requirement easily satisfied hamdan charged providing assistance top al qaeda leadership offense triable military commission also charged receiving weapons training al qaeda camp app pet cert plurality recounts respective claims parties quirin pertaining issue cites reports ante claims parties included opinion rather sections reports entitled argument petitioners argument respondent see plurality concludes military commission jurisdiction appropriate case lincoln conspirators charged unlawfully traitorously murdering said abraham lincoln ante sole charge filed case alleged conspiracy allegations pertaining maliciously unlawfully traitorously murdering said abraham lincoln charged labeled separate offenses rather overt acts pursuance prosecuting said malicious unlawful traitorous emphasis added plurality contends murder president lincoln charged distinct separate offense foregoing quoted language charging document unequivocally establishes otherwise moreover though agree allegations pertaining overt acts provided independent basis military commission jurisdiction case merely confirms propriety examining acts alleged whether labeled separate offenses determine defendant charged violation law war already explained hamdan charged violating law war participating conspiracy violate law war also joining war criminal enterprise supplying provisions assistance enterprise top leadership plurality attempt undermine significance cases unpersuasive plurality suggests wirz case relevant specification supporting conspiracy charge alleged personally committed number atrocities ante establish conspiracy violate laws war crime wirz charged violation law war rather best establishes addition conspiracy wirz violated laws war committing various atrocities hamdan violated laws war conspiring also joining al qaeda providing provisions services top leadership moreover fact wirz charged overt acts severe overt acts hamdan charged establish conspiracy offense cognizable military commission rather merely establishes wirz offenses may comparably worse hamdan offenses plurality claim charge lenger grenfel supports compound offense theory similarly unsupportable plurality dispute grenfel charged conspiring violate laws war releasing rebel prisoners charge bears relation crime ordinarily triable civilian courts ante tellingly plurality reference discuss charge instead refers conclusion judge advocate holt grenfel also traitors malefactors overthrow republic interest slavery ibid quoting doc judge advocate holt observation provides support plurality conclusion discuss charges sustained military commission jurisdiction much less suggest charges violations law war plurality contends international practice including practice imt nuremberg supports conclusion conspiracy offense triable military commission concept conspiracy part european legal systems arguably element internationally recognized laws war ante quoting taylor anatomy nuremberg trials personal memoir imt criminalize conspiracies violate law war criminalize participation common plan conspiracy wage aggressive war see trials pp moreover world war ii military tribunals several european nations recognized conspiracy violate laws war offense triable military commissions see commission noting french military tribunal marseilles found henri georges stadelhofer guilty crime association de malfaiteurs namely formed various members german gestapo association aim preparing committing crimes persons property without justification laws usages war noting netherlands military tribunals authorized try conspiracy violate laws war thus european legal systems approach domestic conspiracy law prevented european nations recognizing conspiracy offenses violations law war unsurprising law war derived domestic law wartime practices civilized nations including consistently recognized conspiracy violate laws war offense triable military commission though constitute basis holding maintains general rule procedures governing trials military commission historically governing ante undoubtedly true military commissions invariably employed procedures employed requirement see winthrop ilitary commissions commonly conducted according rules forms governing indeed summary action courts held articles war proceedings rendered illegal omission details required upon trials emphasis original footnotes omitted commission world war ii mediterranean regulations provide military commissions shall conduct proceedings may deemed necessary full fair trial regard bound rules procedure prescribed general courts martial emphasis added world war ii european directive stated military commissions shall power make occasion requires rules conduct proceedings consistent powers commissions rules procedure deemed necessary full fair trial accused regard without bound rules procedure evidence prescribed general courts martial moreover requirement conflict settled understanding flexible responsive nature military commissions president wartime authority employ tribunals sees fit see birkhimer ilitary commissions may vary procedure adapt situation may extend powers necessary degree military commander decides upon character military tribunal suited occasion decision final suggests congress amendment article ucmj providing ucmj applies persons within area leased otherwise reserved acquired use deprives yamashita conclusion respecting president authority promulgate military commission procedures precedential value ante merely begs question scope content remaining provisions ucmj nothing additions article provision ucmj suggests congress disturbed unequivocal interpretation article preserving status military commissions corresponding authority president set procedures pursuant powers see quirin bears noting hesitate cite legislative history supports view certain statutory provisions see ante makes citation legislative history pertaining article contradicts interpretation provision indeed authoritative legislative history relating article confirm obvious article uniformity requirement pertains uniformity three branches armed forces subsection introduced amendment article author explained leave three branches enough leeway provide different provision absolutely necessary differences services hearings subcommittee house committee armed services statement explained might slight differences pertain navy contrast army least article expression congressional intent want uniform possible ibid addition foreclosed text provision suggestion supp applies military commissions untenable require military commission proceedings accused present members commission voted guilt innocence dispute conclusion common article violated unless hamdan convicted sentenced instead contends geneva conventions direct accused wait sentence imposed challenge legality tribunal try ante geneva contentions direct defendants enforce rights litigation conventions exclusive diplomatic enforcement provisions moreover neither observation respecting geneva conventions reference equitable doctrine abstention bears constitutional prohibition adjudicating unripe claims notably prosecutor quirin military commission described procedures substantial improvement effect world war ii observing hey go long way toward assuring trials full fair national institute military justice procedures trials military commissions certain citizens war terrorism hereinafter procedures trials foreword lloyd cutler footnotes section looks law war separation powers issues justice kennedy notes concerns procedures structure see ante plurality justice kennedy suggests commission rules improper insofar allow defendant denied access evidence circumstances see ante procedure used particular case accused convicted validity procedure challenged review proceeding case context asserted need procedure impact accused analyzed concrete terms