Government Merits Brief - Hamdan v. Rumsfeld

19
UCMJ applies to armed conflicts that the United States has
prosecuted without a formal declaration of war. See, e.g.,
United States v. Anderson, 38 C.M.R. 386, 387 (C.M.A. 1968)
(Vietnam); United States v. Bancroft, 11 C.M.R. 3, 5-6 (C.M.A.
1953) (Korea). 1 The case on which petitioner relies (Br. 32-33
n.23) for the contrary proposition, United States v. Averette,
41 C.M.R. 363 (C.M.A. 1970), is inapposite. That case interpreted
the phrase “in time of war” as used in Article 2 of the
UCMJ as applied to a civilian accompanying the U.S. Armed
Forces who was subjected to a court-martial. Id. at 365-366.
The UCMJ provisions discussed above authorizing military
commissions do not contain the limiting phrase “in time of
war,” and petitioner is not a civilian like the defendant in
Averette, but a confirmed enemy combatant.
Petitioner also errs in arguing (Br. 17) that the use of military
commissions is not “necessary” to prevent terrorism and
therefore unauthorized by the AUMF. This Court has recognized
that courts are not competent to second-guess judgments
of the political branches regarding the extent of force
necessary to prosecute a war. See, e.g., The Prize Cases, 67
U.S. (2 Black) at 670 (stating that the President “must determine
what degree of force the crisis demands”). In any event,
this Court has also recognized the general principle, in
Quirin, Yamashita, and other cases, that trying unlawful
combatants for violating the law of war is a fundamental part
of the conduct of the war itself. The punishment of persons
who have violated the law of war is an appropriate and timehonored
means of deterring or incapacitating them from do-
1
See also Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization
and the War on Terrorism, 118 Harv. L. Rev. 2047, 2129 (2005) (noting
that military commissions were used in connection with the Civil War and
conflicts with Indian tribes).