Government Merits Brief - Hamdan v. Rumsfeld

13
entertaining “habeas petitions by military prisoners unless all
available military remedies have been exhausted.” Id. at 758.
The abstention rule of Councilman applies a fortiori
where, as here, the President, acting in his capacity as Commander
in Chief and in express reliance on congressional authorization,
established the military commissions at issue
upon finding that they are “necessary” for “the effective conduct
of military operations and prevention of terrorist attacks.”
Military Order § 1(e). Because the Military Order
applies to alien enemy combatants who are captured during
the ongoing war with al Qaeda, both the traditional deference
this Court pays to the military justice system and the vital
role played by that system are at their pinnacle. See
Yamashita, 327 U.S. at 11 (“trial and punishment of enemy
combatants” for war crimes is “part of the conduct of war
operating as a preventive measure against such violations”);
Hirota v. MacArthur, 338 U.S. 197, 208 (1949) (Douglas, J.,
concurring) (“punishment of war criminals * * * dilut[es] enemy
power and involv[es] retribution for wrongs done”).
The two grounds on which the court below distinguished
Councilman do not render it inapplicable. First, Quirin, on
which the court of appeals relied, does not provide a basis for
distinguishing Councilman, because it predated Councilman
by over 30 years. In addition, Quirin did not involve the enjoining
of a military commission, but did involve a presumed
American citizen facing an imminent death penalty. Moreover,
the United States did not request abstention in that
case. Cf. Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996) (noting
that “the existence of unaddressed jurisdictional defects has
no precedential effect”). This case, by contrast, involves an
alien enemy combatant captured abroad who does not face the
death penalty and who may seek judicial review if an adverse
decision is rendered.