Government Merits Brief - Hamdan v. Rumsfeld

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QUESTIONS PRESENTED 1. Whether the Detainee Treatment Act of 2005 divests this Court of jurisdiction over this case. 2. Whether federal courts should abstain from interfering with ongoing military commission proceedings. 3. Whether the President has constitutional or statutory authority to establish military commissions. 4. Whether the Geneva Convention Relative to the Treatment of Prisoners of War creates judicially enforceable rights. 5. Whether the President permissibly determined that the Geneva Convention does not cover, or afford prisoner-ofwar status to, al Qaeda combatants. 6. Whether the federal regulations governing military commissions must conform to provisions in the Uniform Code of Military Justice that apply by their terms only to courtsmartial. (I)
TABLE OF CONTENTS Page Jurisdiction ........................................... 1 Statement............................................. 1 Summary of argument.................................. 7 Argument: I. This pre-trial challenge to petitioner’s military commission is jurisdictionally foreclosed and fatally premature ................................ 12 II. The President has ample authority to convene military commissions to try and punish al Qaeda combatants such as petitioner ..................... 15 A. Congress has authorized the use of military commissions in the armed conflict with al Qaeda ..................................... 15 B. The Constitution authorizes the President to establish military commissions to try al Qaeda combatants ................................ 20 C. Al Qaeda’s wholesale disregard for the law of war does not exempt it from punishment for violations of the law of war ................... 23 D. Petitioner’s case-specific and treaty-based objections to his military commission lack merit ...................................... 26 1. Military commissions may be and long have been convened outside the zone of combat . . 27 2. The offense of conspiracy may be and long has been tried before a military commission ............................. 27 3. As a non-citizen enemy combatant, petitioner may be tried before a military commission ............................. 28 4. Petitioner’s treaty-based objections lack merit .................................. 30 (III)
Page 1: No. 05-184 In the Supreme Court of
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 and 14: XIII Miscellaneous—Continued: Pag
Page 15 and 16: In the Supreme Court of the United
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
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39 applicable to “all cases of de
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41 tenced only if the sentence has
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43 E. Petitioner Does Not Enjoy The
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45 commission. The Court described
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47 (3d ed. 1914); see Richard S. Ha
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49 armed conflicts, * * * which are
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APPENDIX 1. 10 U.S.C. 821, Art. 21,
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3a Committee on the Judiciary of th
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5a (2) ELEMENTS OF REPORT.—Each s
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7a (ii) to the extent the Constitut
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9a and Nationality Act and, in part
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SECTION 2. 11a AUTHORIZATION FOR US
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13a (d) The ability of the United S
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15a Sec. 3. Detention Authority of
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17a (8) of the record of the trial,
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19a 6. Geneva Convention relative t
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21a (c) outrages upon personal dign
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23a B. The following shall likewise
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25a * * * * * ARTICLE 11 In cases w
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Government Merits Brief - Hamdan v. Rumsfeld

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