Government Merits Brief - Hamdan v. Rumsfeld

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tured in the United States, Ex parte Quirin, 317 U.S. 1
(1942); the Japanese military governor of the Phillippines, In
re Yamashita, 327 U.S. 1 (1946); German nationals who
claimed that they worked for civilian agencies of the German
government in China, Johnson v. Eisentrager, 339 U.S. 763
(1950); and even the wife of an American serviceman posted
in occupied Germany, Madsen v. Kinsella, 343 U.S. 341
(1952).
Facing an enemy today characterized by its systematic
disregard for the law of war and for the lives of innocent civilians,
such as the victims of the September 11 attacks, Congress
authorized the President to use his traditional war powers
“to prevent any future acts of international terrorism
against the United States” by al Qaeda and its supporters.
AUMF § 2(a), 115 Stat. 224. Soon after, and in express reliance
on that authorization and on provisions of the UCMJ, the
President ordered the establishment of military commissions
to try violations of the law of war in the ongoing armed conflict
with al Qaeda. What is more, Congress recently ratified
the President’s decision to convene such military commissions
in the DTA, which establishes an exclusive review mechanism
in the District of Columbia Circuit for challenges to the final
decisions of military commissions. That is self-evidently not
the legislation Congress would have enacted if it viewed the
commissions as ultra vires or defective in ways that demanded
pre-trial correction. The only plausible conclusion is
that Congress has interposed no objection to the President’s
decision to convene military commissions in the current conflict,
including the commission at issue in this case.
Neither petitioner nor his amici have provided any basis
for the Court to disregard the time-honored practice of trying
and punishing captured enemy combatants by military commissions,
as reflected in this Court’s decisions recognizing the
validity of military commissions in prior conflicts and the vari-