Government Merits Brief - Hamdan v. Rumsfeld

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XIV Miscellaneous—Continued: Page S. Rep. No. 229, 63d Cong., 2d Sess. (1914) ............17 S. Rep. No. 486, 81st Cong., 1st Sess. (1949) ...........17 S. Treaty Doc. No. 2, 100th Cong., 1st Sess. (1987) ......40 U.S. Dep’t of the Army et al., Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (Nov. 1, 1997) . . . ...........35, 42, 43 Uniform Code of Military Justice: Hearings Before Subcomm. No. 1 of the House Comm. on Armed Services on H.R. 2498, 81st Cong., 1st Sess. (1949) ..........................................47 Carlos Manuel Vazquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l L. 695 (1995) ..............................31 William Winthrop, Military Law and Precedents (2d ed. 1920) ............................20, 22, 27, 46
In the Supreme Court of the United States No. 05-184 SALIM AHMED HAMDAN, PETITIONER v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR RESPONDENTS JURISDICTION For the reasons stated in respondents’ motion to dismiss, the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109- 148, Div. A, Tit. X, 119 Stat. 2739, removes jurisdiction over this action and similar actions brought on behalf of Guantanamo detainees. STATEMENT For centuries, this Nation has invoked military commissions to try and punish captured enemy combatants for offenses against the law of war. Petitioner is a confirmed enemy combatant—indeed, an admitted personal assistant to Osama bin Laden—who was captured in Afghanistan in connection with ongoing hostilities and has been charged with violating the law of war. The court of appeals properly held that petitioner’s pre-trial challenge to his military commission is without merit and that the district court’s unprecedented injunction against that proceeding should be set aside. (1)
Page 1 and 2: No. 05-184 In the Supreme Court of
Page 3 and 4: TABLE OF CONTENTS Page Jurisdiction
Page 5 and 6: V Cases—Continued: Page Foster v.
Page 7 and 8: VII Cases—Continued: Page United
Page 9 and 10: IX Treaties, statutes, regulations,
Page 11 and 12: XI Statutes, regulations, and rules
Page 13: XIII Miscellaneous—Continued: Pag
Page 17 and 18: 3 2. a. In November 2001, petitione
Page 19 and 20: 5 Qaeda,” and that he was therefo
Page 21 and 22: 7 SUMMARY OF ARGUMENT I. Petitioner
Page 23 and 24: 9 ity in wartime to hold enemy figh
Page 25 and 26: 11 tured in the United States, Ex p
Page 27 and 28: 13 entertaining “habeas petitions
Page 29 and 30: 15 sion,” and that judicial revie
Page 31 and 32: 17 AUMF authorized the use of milit
Page 33 and 34: 19 UCMJ applies to armed conflicts
Page 35 and 36: 21 Eisentrager, 339 U.S. at 788. Th
Page 37 and 38: 23 The President’s inherent autho
Page 39 and 40: 25 no basis for this Court to inval
Page 41 and 42: 27 1. Military commissions may be a
Page 43 and 44: 29 particular reference to the fact
Page 45 and 46: 31 253, 306 (1829); see generally U
Page 47 and 48: 33 spected * * * in all circumstanc
Page 49 and 50: 35 ever, create no enforceable fede
Page 51 and 52: 37 court of appeals to have conside
Page 53 and 54: 39 applicable to “all cases of de
Page 55 and 56: 41 tenced only if the sentence has
Page 57 and 58: 43 E. Petitioner Does Not Enjoy The
Page 59 and 60: 45 commission. The Court described
Page 61 and 62: 47 (3d ed. 1914); see Richard S. Ha
Page 63 and 64: 49 armed conflicts, * * * which are
Page 65 and 66:
APPENDIX 1. 10 U.S.C. 821, Art. 21,
Page 67 and 68:
3a Committee on the Judiciary of th
Page 69 and 70:
5a (2) ELEMENTS OF REPORT.—Each s
Page 71 and 72:
7a (ii) to the extent the Constitut
Page 73 and 74:
9a and Nationality Act and, in part
Page 75 and 76:
SECTION 2. 11a AUTHORIZATION FOR US
Page 77 and 78:
13a (d) The ability of the United S
Page 79 and 80:
15a Sec. 3. Detention Authority of
Page 81 and 82:
17a (8) of the record of the trial,
Page 83 and 84:
19a 6. Geneva Convention relative t
Page 85 and 86:
21a (c) outrages upon personal dign
Page 87 and 88:
23a B. The following shall likewise
Page 89 and 90:
25a * * * * * ARTICLE 11 In cases w
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Government Merits Brief - Hamdan v. Rumsfeld

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