Government Merits Brief - Hamdan v. Rumsfeld

5
Qaeda,” and that he was therefore subject to continued detention.
Pet. App. 2a, 31a.
3. Petitioner filed a petition for habeas corpus or mandamus
in the District Court for the Western District of Washington.
He sought to enjoin enforcement of the Military Order
on the ground that trial before a military commission
rather than a court-martial would be unconstitutional and
would violate the Uniform Code of Military Justice (UCMJ),
10 U.S.C. 801 et seq., and the Geneva Convention Relative to
the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T.
3316, 75 U.N.T.S. 135 (Geneva Convention, 1949 Convention,
or Convention). J.A. 37-65. While petitioner acknowledged
that he worked for bin Laden for many years before his capture,
J.A. 50, he alleged that he had not knowingly participated
in terrorist attacks against the United States, J.A. 46,
51. The district court transferred the case to the District
Court for the District of Columbia. J.A. 143-150.
On November 8, 2004, one month before petitioner’s
scheduled trial date, J.A. 182, the district court rejected the
government’s argument that it should abstain from interfering
with the impending trial, and enjoined the military commission
proceedings on the ground that the trial would violate
Article 5 of the Geneva Convention and Article 39 of the
UCMJ, 10 U.S.C. 839. Pet. App. 20a-49a.
4. The court of appeals reversed. Pet. App. 1a-18a. The
court declined to abstain but rejected petitioner’s claims on
the merits. First, the court held that Congress had authorized
petitioner’s military commission through the AUMF and
Articles 21 and 36 of the UCMJ, 10 U.S.C. 821, 836. Pet. App.
4a-7a. Next, the court rejected petitioner’s argument based
on the Geneva Convention. It explained that the Geneva Convention
did not create judicially enforceable rights, but that,
even if it did, “the Convention does not apply to al Qaeda and
its members.” Id. at 11a. The court further noted that peti-