Government Merits Brief - Hamdan v. Rumsfeld

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ity in wartime to hold enemy fighters accountable for violating
the law of war.
Nor is there any basis for concluding that the President
lacks the authority to convene a military commission against
petitioner. The Geneva Convention does not preclude the
trial of petitioner by military commission. As a threshold
matter, the Convention does not create private rights enforceable
in domestic courts and thus is of no assistance to petitioner
in this action. The longstanding presumption is that
treaties or international agreements do not create judicially
enforceable individual rights. In Johnson v. Eisentrager, 339
U.S. 763 (1950), this Court concluded that a previous version
of the Geneva Convention did not confer privately enforceable
rights and that enforcement of the treaty is instead a matter
of State-to-State relations. Nothing in the text or history of
the current version of the Convention suggests that the President
or the Senate intended to take the radical step of creating
judicially enforceable rights. Nor do any of the provisions
of domestic law on which petitioner relies, including the habeas
statute, transform the Convention into a judicially enforceable
international instrument.
Even if the Convention were judicially enforceable, it still
would not aid petitioner. The President has determined that
members and affiliates of al Qaeda, such as petitioner, are not
covered by the Geneva Convention. That determination represents
a core exercise of the President’s Commander-in-
Chief and foreign affairs powers during wartime and is entitled
to be given effect by the courts. Moreover, the President’s
determination is supported by the plain text of the
Geneva Convention articles defining the treaty’s scope. Furthermore,
petitioner clearly does not satisfy the relevant requirements
in the Convention for POW status, which is determined
by reference to the characteristics of the belligerent
force (in this case, al Qaeda), not the individual. And a CSRT